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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:(08) 8981-6130 Fax:(08) 8981-6186
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER EAMES
C2002/3607
IR AUSTRALIA PTY LTD
and
RAYTHEON E-SYSTEMS INC
Notification pursuant to section 99
of the Act of a dispute re conditions
of employment
ALICE SPRINGS
9.56 AM, FRIDAY, 14 FEBRUARY 2003
Continued from 14 November 2002
PN79
THE COMMISSIONER: No change of appearances?
PN80
MR HOULIHAN: There is, Commissioner. Appearing with me is MR T. EARLS and MISS L. DOUST.
PN81
THE COMMISSIONER: Good. Thank you.
PN82
MR HANKIN: I have got Mr Greg Montgomery with me but he is not appearing, as such.
PN83
THE COMMISSIONER: Good. Thank you. Since we were last together with this matter, I note there has been some exchange of correspondence between the parties and certainly some correspondence to the Commission that goes to, I think, the jurisdiction of the Commission to deal with the matter. Unless I am persuaded otherwise I think I really ought to deal with those issues first before we get into any substantive debate about the merits or otherwise of the application.
PN84
Mr Hankin, you have raised, I think, a number of points in relation to that and perhaps I should hear from you in the first instance.
PN85
MR HANKIN: Thank you, Commissioner. The correspondence that you are referring to is, I assume, my letter to yourself dated 8 January 2003.
PN86
THE COMMISSIONER: Yes.
PN87
MR HANKIN: A copy of which I forwarded to both Mr Stirk and also to Mr Houlihan.
PN88
THE COMMISSIONER: I don't want to be pedantic, perhaps you might stand.
PN89
PN90
MR HANKIN: In my letter I raised a number of issues which went to whether or not there was a valid bargaining period in force, whether or not, if there was bargaining period in force, it had actually commenced. And flowing from that, two other main issues that I raised were, 1. whether or not, as at the date of that letter, which was 8 January this year, there could even be an application pursuant to section 170MW(2) of the Act because there had been no industrial action.
PN91
Finally, I raise the issue as to whether or not, if there had been industrial action, whether or not an application to terminate the bargaining period could be brought by any party other than the party on the receiving end of the industrial action.
PN92
THE COMMISSIONER: Yes.
PN93
MR HANKIN: Two issues raised in that letter have now disappeared. One of those issues was whether or not the bargaining period had actually commenced, and that issue was raised on the basis that the notice of initiation of the bargaining period had not, at that stage, been served on all of the negotiating parties as defined in the relevant section of the Act.
PN94
THE COMMISSIONER: Yes.
PN95
MR HANKIN: And as Mr Houlihan undoubtedly correctly interpreted, the notice hadn't been served on the other Australian employees who are not represented by Mr Houlihan and Povey Stirk. I am instructed that within days of my letter dated 8 January, Mr Dawkins, a major representative for the Raytheon employees, did in fact serve the notice of initiation of the bargaining period on the remaining Australian employees. So if there is a valid bargaining period it has certainly commenced.
PN96
THE COMMISSIONER: Right.
PN97
MR HANKIN: In relation to the industrial action, which was non-existent as at the date of my letter, I can advise the Commission that industrial action took place very shortly after the date of my letter, specifically, a formal notice of industrial action, dated 20 January, was served on my client, and at 1 am on 24 January this year, a number of employees who had arrived to work walked off the job; there were five employees, and they did not return to work until the next scheduled shift, which was on 28 January of this year. Hopefully I am not going too fast for you, Sir.
PN98
THE COMMISSIONER: No, you're right. I'm with you so far. I'll holler if I lose you.
PN99
MR HANKIN: On 31 January at 7.30 am, member of both the day staff and of the shift crew didn't turn up for work. There were some six employees involved in that. And at 1 am on 1 February, some shift workers walked off the job; three employees. There was also another notice received saying that employees would engage in other industrial action, namely that if they were rung in for an emergency overtime, on the basis of somebody reporting in sick or something similar, but they would not be reporting in. In fact, my understanding is there haven't been any occasions requiring anyone to be either asked or declined to come in.
PN100
So we have had industrial action. I guess the first matter that I should appropriately deal with is whether or not, as contemplated by the Act, there is in fact a valid bargaining period that has been initiated at all. The notice that was dated 18 November, which was served in this particular case, really contains the seeds of what we say is the invalidity of the purported bargaining period. And I draw the Commission's attention to the rather curious wording of the opening of the notice. It says:
PN101
Under section 170MI(2) of the Act, notice is given that Povey Stirk, Lawyers and Notaries ...(reads)... and on behalf of other employees as scheduled intends to try.
PN102
And it is that wording which, in my submission, makes it quite clear that the notice simply does not comply with the requirements of 170MI. It is appropriate, I think, to go to 170MI at this point.
PN103
THE COMMISSIONER: Yes.
PN104
MR HANKIN: 170MI says that "If an employer" - which doesn't apply - "or an organisation of the employees" - which doesn't apply - "or an employee acting on his or her own behalf or on behalf of other employees, wants to negotiate an agreement, the employer organisation or employee may initiate a bargaining period." Quite simply here the body purporting to initiate the bargaining period is Povey Stirk, acting through IR Australia - whatever that means - and on behalf of Mr Dawkins.
PN105
On a fairly simple reading of the section, there can't be a valid bargaining period because Povey Stirk is not an employee acting on behalf of other employees, nor is IR Australia. I don't seek a ruling on that at this point;I am not going to make a meal of it but the requirements of the Act are fairly strict, they are fairly technical and they need to be complied with. But in my submission, leaving aside the invalidity or otherwise of the bargaining period, the main problem with this particular application is that it's an application to terminate the bargaining period - asking the Commission to terminate the bargaining period, and that can only be done in situations that are specifically set out in section 170MW of the Act.
PN106
170NW(1) gives the general power of the Commission to suspend or terminate. The remaining sections of section 170MW set out the only specific situations when the Commission can do it. And the only relevant ones - and this is the one cited in the notice from Povey Stirk - asking for the hearing to terminate the bargaining period is section 170MW(2). It reads:
PN107
A circumstance for the purposes of subsection 1 is that a negotiating party, that before or during ...(reads)... advance claims in respect of the proposed agreement.
PN108
So it is the party that is taking the industrial action that the section refers to, did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action or is not genuinely trying to reach an agreement with the other negotiating parties or has failed to comply with a direction or has failed to comply with a recommendation under section 111AA.
PN109
What is contemplated by section 170MW(2) is that the party on the receiving end of the industrial action has formed the view that the persons engaging in the industrial action are not genuinely doing so in an attempt an agreement but are doing so for some other reason. And the section clearly contemplates that its the party which is at the disadvantage of the industrial action which can then make that complaint to the Commission and seek to have stripped away the protection of the bargaining period from the parties engaged in the industrial action.
PN110
The industrial action here has not been initiated by my client. My client's on the receiving end; my client has not engaged in any industrial action by way of stand-downs or lock-outs or anything of the kind. So the only party under section 170MW(2) who could have applied to the Commission is my client.
PN111
THE COMMISSIONER: Yes, I follow that.
PN112
MR HOULIHAN: Perhaps it would speed the process, Commissioner, if we say right up front that we are not relying on 170MW(2).
PN113
THE COMMISSIONER: That will help. Perhaps we should hear what you are intending to rely upon, that might influence the submission that is put by Mr Hankin.
PN114
MR HOULIHAN: Well, I think, Commissioner, that the - we need to establish an understanding of the scheme of the Act, and the scheme of the Act was that the power of the Commission - or part of the scheme of the Act - was that the powers of the Commission to arbitrate matters were going to be circumscribed by this legislation; they were going to be restricted to the 20 allowable matters. And that was a fairly serious diminution, if you like, in the established powers of the Commission. But as a part of the scheme of the Act, there were two exceptions to that rule; there is the procedure that becomes available where the Commission exercises its jurisdiction under 170MW - which is what we are talking about here - or, in a special case, under section 89A(7). Now they are the two circumstances where the capacity of the Commission to arbitrate, using the full gamut of its powers, is available.
PN115
Now, in the circumstances that my clients are in, which we submit are extraordinarily unusual, to say the least - extraordinarily unusual - and we will be going to his Honour, the President's decision in Coal v Allied, because that's clearly the decision; that's been upheld by the High Court. And in Coal v Allied his Honour sets out what's got to happen for a party o seek to have - or to move the Commission to exercise the power under 170MW. It's spelt out in his Honour's decision.
PN116
The scheme of the Act has been designed to restrict - as I say, there's arbitral power - but in circumstances, particular circumstances, special or extraordinary circumstances to enable a broader spread of power; far broader scope of power to be exercised by the Commission.
PN117
THE COMMISSIONER: Within the strictures of the statute.
PN118
MR HOULIHAN: I am sorry?
PN119
THE COMMISSIONER: Within the stricture of the statute.
PN120
MR HOULIHAN: Absolutely within the strictures of the statute. Now, the key fundamental thing, the key object of the '96 legislation was to facilitate the making of agreements. That was the whole driver of that legislation. And the drafters of the legislation understood that from time to time there would be circumstances arise where, for whatever reasons, and in one of the circumstances, you're simply not going to be able to get the parties to come to a negotiated settlement.
PN121
And there are mechanisms in the legislation that are there specifically and purposefully to cope with those sort of circumstances. We submit this is one of those. See, this is an extraordinary situation where, as the advocate for this group of employees, I don't know what they do; I can't know what they do because they can't tell me what they do. I can't call evidence from my clients going to what they do; I don't know what Mr Montgomery's company does. In fact I don't know - I'm not sure what company is involved. It's very, very hard. The company that's cited as the employer in the enterprise agreement no longer exists. The company or business entity that's on the group certificates is no longer relevant.
PN122
So we've had a bit of sport trying to find out who the hell it is that we've actually got to deal with here. And if we were more suspicious people we would have probably made more of it. The position is that we have got people who, for a period of years, have been seeking to agitate an entirely just claim, in our opinion, against this employer. In the context of this enterprise agreement, they have again raised this issue of equity of pay between the Australian employees and the US employees.
PN123
Commissioner, we are told that in the 1980s and earlier, people were paid on a parity basis, that that arrangement has simply slipped in the last 10 years. Now, our clients have got a right to agitate a legitimate demand; they are Australian employees. And we will go to the treaties that make clear that they have got the rights of Australian employees. In the agitation of those demands they have - and because of the refusal of their employer to countenance those demands in any way - they have initiated a bargaining period.
PN124
THE COMMISSIONER: That's not exactly right though, is it? Because I understood the matters that were before the Commission the last time we were together, the company was prepared to enter into an enterprise agreement, but it wasn't satisfactory for your purposes.
PN125
MR HOULIHAN: The company was prepared to enter into an enterprise agreement which rolls over the terms of the existing agreement and increases rates of pay for Australian employees by 3 per cent.
PN126
THE COMMISSIONER: That's right. Which is unacceptable to your people. I understand that.
PN127
MR HOULIHAN: Absolutely unacceptable to my people.
PN128
THE COMMISSIONER: But that doesn't mean to say that they are not negotiating.
PN129
MR HOULIHAN: Well, it does, because they get to a point and say they will go no further.
PN130
THE COMMISSIONER: Yes.
PN131
MR HOULIHAN: So there was a point where they negotiated, in about September or October, till they got to that point and since then they will not go any further.
PN132
THE COMMISSIONER: And what action do you say that they have taken that can be classified as industrial action under the terms of 170MW?
PN133
MR HOULIHAN: Well, we would say what they have in fact done, but that does constitute industrial action, was the suspension - the downgrading of an employee who took industrial action and who was told he was downgraded because he was taking industrial action - we say that constitutes a breach of that. But again, we say - let me just take you to what his Honour said on this precise issue, Commissioner, that my friend has made, about our inability to raise this issue. Because, his Honour - his Honour is quite specific about it. At head 6.7 of - - -
PN134
THE COMMISSIONER: Just hang on, let's get hold of it.
PN135
MR HOULIHAN: And this is just the judgment of his Honour, the President, but that was obviously adopted.
PN136
THE COMMISSIONER: Which page are you on?
PN137
MR HOULIHAN: There's no page numbers, Commissioner, this is just to make it more interesting. The page is headed 6.7, The Discretion to Suspend or Terminate a Bargaining Period.
PN138
THE COMMISSIONER: Yes, I have that.
PN139
MR HOULIHAN: Has my friend got that page? They start off, Commissioner, quoting from the explanatory memorandum of the Act.
PN140
THE COMMISSIONER: Yes.
PN141
MR HOULIHAN: They say at the end of that quote:
PN142
The Commission will be able to take into account any relevant factors but should have regard ...(reads)... excluded from further bargaining in the bargaining period.
PN143
THE COMMISSIONER: Yes.
PN144
MR HOULIHAN: But the part that I particularly want to take you to first is, you miss the next paragraph and come down - it's a couple of sentences in. It starts, "It is sufficient". Have you got that?
PN145
THE COMMISSIONER: Yes.
PN146
MR HOULIHAN:
PN147
It is sufficient to indicate that I am unable to accept the bald proposition that a bargaining period ...(reads)... for the purpose of attracting the exercise of the Commission's arbitral powers.
PN148
Let's be very clear about it - as I have said already once - that's precisely what we're doing here; we are seeking to attract the Commission's arbitral powers on this matter, because we cannot move the employer by negotiation and, thus far, by industrial action. So what we are saying is, in the particular circumstances that we are in - we have sought to follow the scheme of the Act; we have said, look, the purpose of what the Act wants us to do is to go out there and make an agreement with these people. We are miles away from making an agreement; we are miles away from it.
PN149
PN150
MR HOULIHAN: This is a email from CRAW, that being Mr Montgomery, on 11 October, and it says - and it is addressed to one of our delegates, Commissioner, Chris Martin: "We are asking for information how you want to structure this equal pay scheme to allow us to get an idea of the cost to us of this arrangement. As you are aware I disagree in principle to this idea" - "I disagree in principle to this idea" of equal pay. He disagrees with the principle. Now that's been reiterated in writing about five separate occasions, as we've kept banging our head against that wall in terms of trying to negotiate. "I disagree in principle to this idea."
PN151
THE COMMISSIONER: What do you say hangs off that?
PN152
MR HOULIHAN: What I say hangs off it is two things: first of all we can't - it means that we are just not going to be able to get to an agreement because the company disagrees in principle with what we're seeking to make an agreement about.
PN153
THE COMMISSIONER: But it might also say you mightn't be able to get to an agreement on the terms that you desire. It doesn't say that you mightn't reach an agreement.
PN154
MR HOULIHAN: I am sorry, Commissioner, I missed that. I missed your - - -
PN155
THE COMMISSIONER: All it might say is that you might not be able to achieve an agreement on terms which you desire at this stage.
PN156
MR HOULIHAN: No, it doesn't say that, Commissioner. It says, "in principle".
PN157
THE COMMISSIONER: Yes.
PN158
MR HOULIHAN: He rejects the principle.
PN159
THE COMMISSIONER: It happens every day of the week in industrial relations in negotiating with enterprise agreements. I've been involved in another life myself where you start off with wanting the moon, and the employer says take a hike, and then we end up settling it at some point in time.
PN160
MR HOULIHAN: That's absolutely correct. I've - - -
PN161
THE COMMISSIONER: That happens every day of the week.
PN162
MR HOULIHAN: I've been there once or twice myself, Commissioner, but I've never been in a situation where one party says emphatically, and repeats it over a period of four months, that the principle - the principle of pay parity is not negotiable; it's rejected. The principle is rejected. Not the quantum, not the quantum; the principle is rejected. We're not talking about the moon; this is not an ambit claim. We say this is a claim that - it's utterly within the purview of what the Act and the treaties and the legislation and the award and the agreement all say, we say we're entitled to pursue it; it's not an ambit claim but in principle the company's opposed to it.
PN163
THE COMMISSIONER: Well, again, you can address me on that but in the exhibit you've tendered, "equal pay" is in quotes - I don't know what that means.
PN164
MR HOULIHAN: We will come to that further on, Commissioner, because I think that - and I agree - - -
PN165
THE COMMISSIONER: Because if we're talking about ILO standards and all the rest of it, it may or may not have anything to do with it.
PN166
MR HOULIHAN: What we're talking about, Commissioner, is - what the company well knows because it's been put to them in some detail - it's a scheme designed to get some equality at particular points between the two sets of employees.
PN167
THE COMMISSIONER: Okay.
PN168
MR HOULIHAN: Now, the issuing of that sort of statement at that sort of time in this process, was, we submit, simply unreasonable in light of the objects of the Act also. Now, I know what you say about negotiating parties but I put this to you, Commissioner, that that was dated in October; it's been reiterated time and time again since then. There is no movement on the issue at all.
PN169
Secondly - you asked me what hangs on it, that's the first thing that we say that hangs on it, but secondly what hangs on it, we say is that it is indicative of the discriminatory nature of the employment arrangements at Raytheon. It is indicative of that. And we say that that is a different situation than existed previously.
PN170
The problem that our people have with this is that - the problem that we have with this in putting this case to you, Commissioner, is that it's extraordinarily difficult for us to be able to meet the sort of tests that his Honour set out in that Coal v Allied decision, because, simply put, we can't call evidence. I don't know what these people do. I have to assume that given the - if you'd look at the treaties - if we go through and simply try and deduce the seriousness of this; and perhaps if I tender, Commissioner, this is Australian Treaty Series 1966 No. 17, and there is an amendment to it, Commissioner, 1988 No. 36. Now this is headed, Agreement Between the Government of the Commonwealth of Australia Governing the United States of America Relating to the Establishment of Joint Defence Space Research Facility.
EXHIBIT #H3 AGREEMENT BETWEEN COMMONWEALTH OF AUSTRALIA AND THE UNITED STATES OF AMERICA
PN171
And if we go part No. 36 of 1988. What we find is that the purpose of the - if you go into the page: "Ambassador to the United States. Your Excellency", and the second paragraph there:
PN172
The Government of Australia propose that in future the facility should be known as the Joint Defence Facility at Pine Gap ...(reads)... and the insertion of the words "At Pine Gap" after "Facility".
PN173
Now, the purpose: "Considering the establishment of maintenance the operation of the Joint Defence Facility will materially contribute to the end." Now that's the - if you go back to the fifth paragraph of the original Act - the fifth paragraph of the preamble not of the actual article. "Considering that the establishment, maintenance and operation of a United States - - -"
PN174
THE COMMISSIONER: Sorry, where are you? Yes, second page.
PN175
MR HOULIHAN: The second page, yes.
PN176
Considering that the establishment, maintenance and operation of a joint the United States/Australia defence base research facility Australia will materially contribute to that end.
PN177
The amendment: "Considering that the establishment, maintenance - agreed between the government for the establishment" - anyway, that's what it's all about; it's an intelligence facility. It goes down - Article I would thus read - going back to that - that the amendment in 1988 - going down:
PN178
Article I would thus read as follows: 'In accordance with the terms and conditions set forth in this agreement ...(reads)... facility for intelligence purposes in this agreement called the Facility.
PN179
So we know that what is happening out there is an intelligence facility and it tells us here that it's in the national interests of both the USA and Australia. We know that our clients are sworn to secrecy. In that previous life that you referred to, Sir, you would have come across some pretty paranoid employers but even people like Coles Myer I don't think swear their people to secrecy. So there's something fairly serious out there. And if you go to the website maintained by Raytheon that gives us a bit of an indication also of what goes on of - - -
PN180
THE COMMISSIONER: Where is all this leading, Mr Houlihan?
PN181
MR HOULIHAN: I'll tell you, Commissioner. It's leading to the fact that we have great difficulty in dealing in an ordinary industrial way with this employer because we are so circumscribed in our capacity. And what I want to come to is that we are circumscribed at any time; our people are extraordinarily concerned about the position of taking industrial action, specifically now. Now what I want to just take you to, if I can, Commissioner, is if you go into the third page of that four-page - could we get that marked?
PN182
PN183
MR HOULIHAN: Now it sets out there four areas that Raytheon is involved in. It says it's involved in homeland security, missile defence, precision engagement, intelligence surveillance and reconnaissance." And the dot points on that page say "We are leaders in any phase of the precision engagement kill chain" - whatever that is:
PN184
We are the world's leading organisation of missile defence; we provide state of the art ...(reads)... to terrorism and provide homeland defence.
PN185
THE COMMISSIONER: You suspect the first dot point has got nothing to do with an abattoirs kill chain.
PN186
MR HOULIHAN: Well, that's the only kill chain that I've - I've had some familiarity with that - I've seen some people on kill chains who'd like to be shot into space but I don't know whether that actually refers to it.
PN187
And just that final dot point there. "Our technology forms an eyes and ears and brains of intelligence surveillance and reconnaissance systems from the predator to the Global Hawk." So, Commissioner, let me - you say, what are we coming to? I'll tell you what we're coming to, we're coming to this. This is not a coal mine, this is not Coles Myer, this is not Ford Motor Company, this is a very serious operation about which we don't know a hell of a lot; we don't know a hell of a lot. We can draw some surmises from the tomes of the treaties, from the stuff we can take from the web page, from the fact on the secrecy that people are sworn to and which they rigidly observe, we can surmise. Can't go much further than that.
PN188
Now, at the same time as we have got these people - we've got these people working in this environment, they are seeming to agitate an entirely just claim that is meeting with a simple refusal to negotiate - a refusal to negotiate, and we are in the circumstance where we are being told by the president of the United States, by the Australian Prime Minister, by the Prime Minister of Great Britain, that we are on the edge of war. We are on the edge of war.
PN189
Now, these are employees who are not wild-eyed radicals, these are people, overwhelmingly, who have never taken industrial action before. But they have felt sufficiently strongly about these issues to do that. l Now we have heard Mr Hankin read out numbers; what he didn't say was what those numbers meant. And those numbers mean this: that all Australians on those ships went on strike; that's what they mean. All of them.
PN190
MR HANKIN: That's not so.
PN191
MR HOULIHAN: Sorry, bar the 60 we don't represent. Bar the 60 other people.
PN192
MR HANKIN: And also other people who were absent for legitimate, pre-arranged reasons.
PN193
MR HOULIHAN: Well, Mr Hankin, your mate there beside you was telling everyone that no-one was going to go out anyway, and the simple facts are that when the call was made it was responded to by essentially all the people that we represent, who were on. So they were serious about it. They are serious about continuing but they are worried sick about continuing it, not because of the issue of industrial action per se but because they understand - they do know what they're doing; they do know what they are there to do - they do know what they're there to do. Now, we don't, but they do.
PN194
In the context - let me give you - let me give you some documents here - - -
PN195
THE COMMISSIONER: Just before we go on. You said that you are not going to be relying on section 170MW(2).
PN196
MR HOULIHAN: Yes.
PN197
THE COMMISSIONER: Which section are you going to be relying upon?
PN198
MR HOULIHAN: MW(3).
PN199
THE COMMISSIONER: Right. So at least we know that.
PN200
MR HOULIHAN: Yes.
PN201
THE COMMISSIONER: Okay. And these submissions you are putting to me, I take it, go to the reasons why the bargaining period should be cancelled under that section.
PN202
MR HOULIHAN: Absolutely.
PN203
THE COMMISSIONER: Or subsection. Okay.
PN204
MR HOULIHAN: Now, Commissioner, I don't know how many state of the union addresses you have but this can add to your collection.
PN205
THE COMMISSIONER: Riveting stuff.
PN206
PN207
MR HOULIHAN: So what we take from that is simply this. That we may think all those people are madmen, we might think they're all the world's best statement, we might think whatever we like but the facts are they are saying and they are acting in a way that says "we are getting perilously close to a war." It would seem from what we do know and what we can glean about the purposes and import of the joint defence facility at Pine Gap, that it has got a serious part of business in that area of warfare.
PN208
Now, that is certainly what you'd take from the Raytheon web page; it is a reasonable thing to assume that people sworn to secrecy have something to do with something serious. Now the problem we've got is that we can't agitate further the claim under the circumstances we're in because we are simply - we are being given a brick wall in terms of the principles that Mr Montgomery sees in this issue. And secondly, we have a very real and genuine concern of our people about the parts that they have to do.
PN209
Again, Commissioner, let me go back to his Honour the president in that Coal v Allied decision, and I want you to go to the page headed 6.4. Causatives of Harm to Specified Public Interests.
PN210
THE COMMISSIONER: Yes. Got that. I want to read that first paragraph there, Commissioner. His Honour says:
PN211
In the context of the verb 'is threatening to' it may be given its ordinary meaning in the sense of giving an . ...(reads)... peril or damage to welfare or to the economy.
PN212
Now, what we - - -
PN213
THE COMMISSIONER: Why shouldn't I issue an order directing people not to take industrial action.
PN214
MR HOULIHAN: You could do that. In doing that you would clearly prejudice the objects of the Act.
PN215
THE COMMISSIONER: Well at the moment I've got an application under section 99 in front of me. That was the original application.
PN216
MR HOULIHAN: Yes. But this application is under 170MW.
PN217
THE COMMISSIONER: I understand that's what you're putting to me. If all of what you say is right, maybe it would be responsible of the Commission to order the industrial action not take place.
PN218
MR HOULIHAN: Commissioner, that's precisely what we're putting to you, provided - - -
PN219
THE COMMISSIONER: No, you want me to cancel the bargaining period.
PN220
MR HOULIHAN: That's right. Provided you - - -
PN221
THE COMMISSIONER: That's different.
PN222
MR HOULIHAN: No. Well, with great respect, Commissioner, the effect of your order and our application in terms of the protection of the national interest are identical. The difference is that our application also protects the industrial rights of these people. And they've got industrial rights that you can fulfil. You can fulfil - what I put to you is a pretty serious charge - to do. Now I don't know whether what you are proposing is a provision under section 127 but you can't do it under 127 because we have protected action.
PN223
THE COMMISSIONER: Right.
PN224
MR HOULIHAN: Now, the issue that we put to you is that what's happening out there, we believe, is serious. We believe that what's happening out there, in the context of the sort of world events that are being talked about by these people that we've just tendered, is more than serious. Now, our people are saying they want to protect their industrial rights but they also want to protect the task that they have and that they've sworn to do.
PN225
Now, the mechanism that the Act allows for that to happen for both those aims to be met, is for you to do as we seek and cancel the bargaining period and allow the matter to go to arbitration.
PN226
THE COMMISSIONER: Yes. I can hear you.
PN227
MR HOULIHAN: Now, Commissioner, I want to stay with the decision of his Honour on that same page, because - and I think these are important considerations that have to be raised in relation to the request that we make. These are the tests that his Honour has essentially set. And he says, in 6.5: "The ordinary meaning of the expression 'the welfare of the population' is a general invocation of the considerations that go the wellbeing of the total number or body of the inhabitants of Australia."
PN228
Now, whether from time to time we feel completely comfortable, particularly to that second one that's attached, Commissioner, we elect a government in this country to look after the general welfare of the population and from time to time we agree with it, from time to time we disagree with it. But when it is there they're the people who've got to do the job. Now they are the people who are saying, first of all, that this is a serious facility. And secondly, they're saying that we are getting perilously close to war. So we say that that sort of test needs to be met, needs to be adopted. It is the executive function. It is the function of the executive government.
PN229
Now, sir, you are required in the exercise of this authority to be satisfied that our application is not capricious, that it is serious. And again, his Honour, addresses that. And he addresses it in that part of the - in part 6 of his decision, 6.1. In fact 6.1 is at the bottom of the page and the part I want to refer you to, sir, is half way through the next page. It is in that paragraph commencing:
PN230
There is well established authority, the effect of ..... public officer's satisfaction in such a contest must not be capricious.
PN231
You can't withhold nor act capriciously.
PN232
The Commission may only be satisfied if its decision to that effect is based upon relevant considerations in the evidence.
PN233
Now let me stop there because - this is why we keep saying to you, this is an extraordinary case. We can't give you the evidence. We can tell you that there has been stoppages. We can tell you that the intent is to continue the stoppages. We can tell you what the issue is about. We can't go to the sort of detail that would normally be required. What we say to you to bear in mind is that this whole security and apparatus out there of itself becomes a relevant consideration in this sort of application of itself.
PN234
Now the Commission has a duty to deal with all these issues on their merits without recourse to the legal paraphernalia. But you've got a provision here - you've got a situation here where these people are locked into a position of seeking the legitimate pursuit of a industrial objective. Of a legitimate industrial objective. Being frustrated by their employer. Being - working in a particular set of circumstances at a particular time. Now it is a convergence of all of those events that makes this so significant, so special.
PN235
Now, you know, all I can put to the Commission on this matter is what it took. That the Act recognises that such circumstances can come to play. His Honour recognises it in this Coal and Allied decision. His Honour recognises directly the point raised by my friend that we are the party who instituted the action, instituted the notice. We're the party who has taken the action. Why should we be able to exercise this. Well, his Honour says why. So that we can avail ourselves of the arbitral capacity of the Commission. And that is what we're doing.
PN236
THE COMMISSIONER: The normal facts of the matter are though, as Mr Hankin pointed out, that it is the respondent or the person against whom the action is directed that is normally the applicant.
PN237
MR HOULIHAN: We don't argue about that.
PN238
THE COMMISSIONER: In relation so that seems it is somewhat unique.
PN239
MR HOULIHAN: Well, it is only another way in which this is unique or extraordinary matter. Mind you, the Coal and Allied case was exactly the same. I mean, it was the unions that initiated a bargaining period and it was the unions who sought to cancel it.
PN240
THE COMMISSIONER: Yes. It was an interesting case though, wasn't it, at the end of the day, and it ended up in the High Court.
PN241
MR HOULIHAN: Well, that is right. Now what we're putting to you, sir, is that nothing that we're proposing is beyond the consideration of the Commission or beyond the purview of the Commission. What we're standing here advocating is in line with the considerations of his Honour, the President, in dealing with that issue.
PN242
THE COMMISSIONER: But, I mean, it isn't totally on point because an essential element of the Coal and Allied case was whether or not you can take activities within one section of the coal industry and see whether in fact that could be categorised as having an impact on the national economy and it flowed from it.
PN243
MR HOULIHAN: That is right.
PN244
THE COMMISSIONER: And a lot of what you've been talking about in the references to what his Honour, the President, was making reference in this decision deals with a number of those points. That was really the point of it. I came to a different view with Bolton J.
PN245
MR HOULIHAN: That is right. But your Honour, Commissioner, sorry, - - -
PN246
THE COMMISSIONER: Haven't got there yet.
PN247
MR HOULIHAN: No. Well, I will make a note. If I coined it long enough you might get the pay and all. But the point that I'm making is that - that is what I say, this is not a coal mine. You know, this is not a coal mine. It is not a series of coal mines. And I accept absolutely what you're saying that part of that consideration was - because all that is being put was this is going to go on to other coal mines and all the rest and there was going to be hell to pay.
PN248
THE COMMISSIONER: Where there wasn't industrial action at that time.
PN249
MR HOULIHAN: That is right. Now can I just say this to you that there are very few respondents to the space tracking industry award. To the best of our knowledge and, again, our knowledge is necessarily imperfect, to put it at its absolute highest. We don't know if there is anybody else doing this sort of work. When I say this sort of work, we don't know what this sort of work is anyway. But we can only assume that it is significant and important, pertains to the national security and is, at the moment, particularly significant and important.
PN250
Now what we're putting to you is that our people are saying (a) they've got industrial rights and (b) they've got obligations as citizens and employees in this particular circumstance. There is a mechanism available to you that enables this Commission to recognise both of those interests. And we ask that you do that. That is the curl of our position. Now we would welcome, if the Commission desires, we would welcome the opportunity to have you chair a conference with the other side to see if we can make any ground with them.
PN251
We haven't been able to move and pass this point of principle. The issue is today as it was the last time we were here, three per cent and a rollover of the agreement. Now that is simply not acceptable. That is simply not acceptable. And the take it or leave it approach of the company is not acceptable in that regard. Now we have raised both at the first hearing and again here this issue of discrimination. And, sir, you are bound by section 93 to be particularly aware of and concerned about and to act in light of that issue. Now the anti-discrimination legislation which has of course picked up in the Workplace Relations Act, picked up in the space tracking award, picked up in the enterprise agreement is pretty precise and on point about this. And it says in 15, schedule 1, article 5, it says:
PN252
The rights to work, the free choice of employment to just and favourable conditions of work, to protection against employment to equal pay for equal work, to just and favourable remuneration.
PN253
Now section 15 of the Act actually - - -
PN254
THE COMMISSIONER: This is the anti-discrimination?
PN255
MR HOULIHAN: Yes.
PN256
THE COMMISSIONER: Yes.
PN257
MR HOULIHAN: It is pretty clear. It says in 15B:
PN258
To refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion, as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description.
PN259
Now what we say is, to the best of our knowledge, that is precisely on point.
PN260
THE COMMISSIONER: That people are employed in the same circumstances?
PN261
MR HOULIHAN: Yes.
PN262
THE COMMISSIONER: But we don't know that.
PN263
MR HOULIHAN: Well, we - - -
PN264
THE COMMISSIONER: Because we can't get any evidence about that.
PN265
MR HOULIHAN: We can't get the evidence to - we can't get the conclusive evidence. We can get anecdotal evidence. We can put people in the witness box who will tell you that they've been talking to Fred their mate who says that this is the state and so on. But Raytheon, your Honour - Commissioner, shortly before we initiated the application for the last hearing, I'm told took their pay scales off their website and, as such, we have not been given access to those pay scales to make that, you know, determinable - - -
PN266
MR HANKIN: My instructions, sir, are that the pay scales have never been on the website.
PN267
MR HOULIHAN: Well, it is a conflict of instructions. The issue is that we are unable to provide you with categoric evidence because employer simply refuses to give it to us. Now all of that, all of that adds to the reasons why we decided to seek, as his Honour said, this access to the arbitral power. That is why we sought the access to the arbitral power, because we can't get there any other way.
PN268
THE COMMISSIONER: I mean, that is the bottom line with this isn't it that if the bargaining period is cancelled, under the statute, the Commission then has to convene a conference as soon as possible to try and achieve an agreement between the parties. If that is not achievable then the matter then can be referred to the President for the matter to be arbitrated and the Full Bench would be convened which would deal with the matter. That is the route we're talking about isn't it?
PN269
MR HOULIHAN: That is precisely what we're talking about, Commissioner.
PN270
MR HANKIN: That is only if it is cancelled under 170MW(3). And the application to terminate the bargaining period, if there is one, although it doesn't cite 170MW(2), it plainly refers to it and the assertion that the application is now being made under 170MW(3) is now been made for the very first time. It is an interesting one.
PN271
THE COMMISSIONER: Well, may be it was fortuitous if it can be put in those terms that war is about to erupt, that wasn't happening back in November when we were together last. But I don't put it any higher than that. May be it is a throw away line that I shouldn't make.
PN272
MR HANKIN: Well, a clear inference that could be drawn from the occurrence of the industrial action hot on the heel of my letter to yourself which was copied to Mr Houlihan pointing out that MW(2) required there to be some industrial action. A clear inference that can be drawn is that the only reason the industrial action took place was in order to attempt to bring themselves within the provisions of MW(2) rather than taking industrial action in an attempt to bring pressure to bear for negotiation purposes.
PN273
THE COMMISSIONER: Yes - - -
PN274
MR HOULIHAN: At least we're aren't accused of starting the war as yet. Commissioner, we are entitled to pursue the case - pursue the application as we see fit. That is our entitlement.
PN275
THE COMMISSIONER: Sure.
PN276
MR HOULIHAN: The application is made. I've said to you how it is made. Why wouldn't we make it under MW(2), I've got no idea but that is for my friend. Commissioner, as I say, we are prepared to try and negotiate again. To try and conciliate under your chairmanship. We don't see think there is any value in proceeding other than under your chairmanship. But at the end of that unless, you know, you work one of your minor miracles. We would envisage coming back here and asking that you exercise power given to you under 170MW(3).
PN277
THE COMMISSIONER: All right. Better hear from you, Mr Hankin.
PN278
MR HANKIN: I'd love to have you chair a conference. My problem is that if you did there would then be the potential for you to be knocked out from any arbitration and I don't want that. The last thing I want is to create a situation where it could be asserted that because of your involvement at conference you formed a view about the merits and therefore you're barred from any arbitral proceedings.
PN279
MR HOULIHAN: Well, Commissioner, let me resolve that problem here and now by saying - I hear Mr Hankin say that I hear Mr Hankin say that they don't want to be disbarred. We give the undertaking now that we wouldn't take that action, and I note his Honour had something to say about that in Coal and Allied also.
PN280
THE COMMISSIONER: All right. Do you want to respond to the other submissions of Mr Houlihan's, Mr Hankin?
PN281
MR HANKIN: Most of his submissions seem to go under the heading of bulldust baffles brains. It appears - - -
PN282
THE COMMISSIONER: Which is the category under which I fit?
PN283
MR HOULIHAN: Make him answer.
PN284
MR HANKIN: They appeared to be directed at me rather than at you in the bulldust case. He appears to accept that he doesn't have a case under section 170MW(2). I might be wrong there but he appears to accept it.
PN285
THE COMMISSIONER: But it's not argued anyway.
PN286
MR HANKIN: It's not being argued.
PN287
THE COMMISSIONER: That's abandoned.
PN288
MR HANKIN: So we are now informed that it's actually being made under section 170MW(3), which is threatening the economy or the safety or a significant part of the economy or safety of the population. The rationale behind that seems to be that the media are full of stories of a possible imminent war with Iraq; that's true. JDFPG is an intelligence facility which might play a role in any potential war with Iraq; presume that's true. It then seems to go on that because some of his client did engage in industrial action, somehow or other - and he didn't actually say this but I infer it - somehow or other the operations of JDFPG must have been impaired, and because they were impaired, therefore there must be a threat to the economy or safety of the Australian people, or something in that nature.
PN289
I can tell you flatly that my client has instructed me that the industrial action did not in any way interfere with its ability to perform its contractual duties to its client, namely the JDFPG. We'd be delighted if you were to make an order barring them from engaging in any further industrial action, but in all honesty, I can't make the submission that my client's operations were anything other than marginally interrupted; there were plenty of other staff available who took on the workload.
PN290
The intention of the three days' notice which the Act requires was borne out in this case, apart from one instance when there was no notice given, but we will save that bit of bitchiness for later. The intention was borne out because my client was quite adequately able to roster extra people on to the relevant shifts to deal with the workload. So far from there being a threat to the life, personal safety or health or welfare of the population, or part of it, my client's ability to provide its contractual services was not - didn't miss a beat. But that's evidence, of course.
PN291
I will also raise the issue that it would have been nice for Mr Houlihan to actually let us know what his case was going to be before we walked in today. I gave him plenty of notice back on 8 January as to exactly what my client's position would be. I don't think, even with evidence, that Mr Houlihan will get anywhere close to the bar raised in section 170MW(3).
PN292
THE COMMISSIONER: All right. Thank you. Do you want to add anything further?
PN293
MR HOULIHAN: Commissioner, can I just make a couple of points about what has been said. The fixation that my friend has about 170MW(2) was obvious in the letter that he wrote to you and forwarded to us. I don't think it's my obligation to spell out the purport of the Act to him. The insistence that we should be under 170MW(2) is a problem that he's got. Now, this - - -
PN294
THE COMMISSIONER: But I think it's fair to say that until today, we all thought that it section 170MW(2) was the section with which we were going to be dealing.
PN295
MR HOULIHAN: But, Commissioner, if we were going to deal under that section, all that's necessary is for me to send you a letter.
PN296
THE COMMISSIONER: Yes. Well, I didn't have anything other than - - -
PN297
MR HOULIHAN: You had an application for the hearing.
PN298
THE COMMISSIONER: That's all.
PN299
MR HOULIHAN: Now, if we wanted to simply - if we wanted to just terminate the bargaining period, if we wanted to cease the whole thing, that's what we'd do; that's what we'd do. But that isn't what we're doing. And - - -
PN300
THE COMMISSIONER: No, it's changed. I accept that. I just didn't know that till today.
PN301
MR HOULIHAN: Well, in fairness, it hasn't changed, Commissioner. That's been our intent from the time we applied for this hearing.
PN302
THE COMMISSIONER: It's the first occasion that I was aware that MW(3) was going to be argued.
PN303
MR HOULIHAN: Well, that's - I accept that because we didn't think, frankly, that it would be necessary to flag it. I mean, if we were going another way we would have simply put the letter in.
PN304
THE COMMISSIONER: But in any rate the difficulty that Mr Hankin finds himself in, or what I pick up from his submission, is that he's not prepared today in terms of being able to argue.
PN305
MR HOULIHAN: With fairness, Commissioner, that's not what he's saying. He's saying we haven't got a case; we haven't got an argument, the bar's too high. And I just want to address this issue of the effectiveness or otherwise of the industrial action that he says didn't matter very much. Again - see, we can't test that; we can't test that at all. We can't put Mr Montgomery in the box and say, what happened here, here and here when these people weren't there to do their job?
PN306
THE COMMISSIONER: If the parties before the Commission can't present evidence, how is the Commission to come to a view?
PN307
MR HOULIHAN: Right. I put it to you this way. That what is necessary in these circumstances - and let me give notice - let me give notice - if we succeed with this application we will be making an application to the Full Bench - assuming the conference that follows fails and you refer the matter to the president and it goes to a Full Bench - we will be asking that Full Bench to order that Raytheon reveals the rates of pay structures that it has so that the proper argument can then proceed.
PN308
THE COMMISSIONER: Yes, that's cool; I understand all that; that's what you've been after from day one, but it's how do we get there in the first instance. I mean I have to determine the application that's before me based on what's put to me.
PN309
MR HOULIHAN: Yes.
PN310
THE COMMISSIONER: And if it is said that we believe certain things are poor, we think there are indicators which will demonstrate satisfactorily to the Commission that some events are taking place, but we can't prove any of that, where does that leave the Commission?
PN311
MR HOULIHAN: Okay. Well, let me try and reiterate that. We say that we've got to establish that there is sufficient circumstantial evidence, if you like, of this. We say there is a bargaining period in place - no, we'll go back one. We say there is an enterprise agreement which regulates these people's employment that has expired.
PN312
THE COMMISSIONER: Yes.
PN313
MR HOULIHAN: We say there is a bargaining period in place.
PN314
THE COMMISSIONER: Yes. And I think that's acknowledged by the other side.
PN315
MR HOULIHAN: Yes. There is an offer from the employer which is simply unacceptable.
PN316
THE COMMISSIONER: Yes.
PN317
MR HOULIHAN: There has been protected action notified and there has been protected action taken.
PN318
THE COMMISSIONER: Yes.
PN319
MR HOULIHAN: And there is a decision for further industrial action to be taken.
PN320
THE COMMISSIONER: Yes.
PN321
MR HOULIHAN: The nature of the enterprise where these people work is a very serious one, obviously. Mr Hankin says it is involved in security and national security - - -
PN322
MR HANKIN: I said that's a reasonable inference. I wouldn't say what it is, I don't know.
PN323
MR HOULIHAN: Yes, okay. And I accept that, and I apologise to Mr Hankin for over-inference, because I'm sure he's in the same boat that I am. But it is a serious situation out there, going to the national interest, the national security of Australia and the USA. And in this circumstance we have only got to be concerned about Australia. And the have the executive government of our nation and of the USA saying we are very very close to a state of war.
PN324
Let me go a couple of steps further; that our people have got industrial rights - and I don't think there's any argument about that; they haven't been forsaken or surrendered, they've got those rights. And the Commission has got a capacity to deal with this conflicting situation. It's not as though there was no procedure or no facility within the Act or within the Commission that enables you to do this. It's not as though we're standing here asking you to do something that's never been done.
PN325
THE COMMISSIONER: I don't know about that. I mean, I haven't got any evidence yet.
PN326
MR HOULIHAN: Neither have we.
PN327
THE COMMISSIONER: Well. What does the Commission do with that? What evidence have I got that the action in support of the claims or to advance the claims in respect of the agreement is threatening to endanger the life, the personal safety or the health or the welfare of the population or part of it? What evidence have I got of that?
PN328
MR HOULIHAN: Well, Commissioner, what we're putting to you is this. That the only evidence - the only evidence that can be led in these circumstances has to be circumstantial; it has to be circumstantial.
PN329
THE COMMISSIONER: And that the Commission, based on circumstantial evidence, should issue some form of order.
PN330
MR HOULIHAN: Yes.
PN331
THE COMMISSIONER: Okay.
PN332
MR HOULIHAN: That's it. Because, Commissioner - let's put it the other way - let's go the other way. What rights, under Australian industrial law, do these people have otherwise? What rights do they have?
PN333
THE COMMISSIONER: What rights are being impinged at the moment?
PN334
MR HOULIHAN: They're being discriminated against. They are being actively discriminated against.
PN335
THE COMMISSIONER: You've got no evidence of that either.
PN336
MR HOULIHAN: Well, would - - -
PN337
THE COMMISSIONER: That's what you say, but we've got no evidence of it.
PN338
MR HOULIHAN: Well, Commissioner, let me - - -
PN339
THE COMMISSIONER: What you're involved in is negotiations with an employer who won't agree with what you want. There's a bargaining period in place. We've got this employer, with whom you are negotiating at the moment, who won't go as far as you want him to go.
PN340
MR HOULIHAN: That's right. But he won't go as far as - - -
PN341
THE COMMISSIONER: Nothing terribly novel about that.
PN342
MR HOULIHAN: He won't go as far as we want him to go on a particular principle which we say impinges the Racial Discrimination Act.
PN343
THE COMMISSIONER: We've got no evidence of that, other than an exhibit that you've tendered, which has an expression in it "equal pay", which is in quotes; are certainly words; I understand, words but I am not sure whether that makes any reference to an act or a principle or to what.
PN344
MR HOULIHAN: Okay. Well - - -
PN345
THE COMMISSIONER: And about whom or to whom it refers.
PN346
MR HOULIHAN: Okay. Well, Commissioner, what I put to you previously was we were happy to go into a conference with the parties under your chairmanship if you would - and what I had in mind was after that was to put Mr Dawkins, possibly, in the witness box, and probably Mr Chris Martin as well.
PN347
I am pretty much in your hands as to do you want to do that first or go into the conference?
PN348
THE COMMISSIONER: Well, we better hear from the other side. I mean, are you people happy to participate in a conference or do you not want to do that at this stage?
PN349
MR HANKIN: Subject to what I am about to say shortly, we're happy to participate in a conference, so long as there's a possibility of there being some value. The subject to is a requirement that my friend physically take instructions from his clients and giving an irrevocable undertaking to the Commission that your chairmanship of the conciliation conference will not, under any circumstances in the future, be the subject of an objection to your continued involvement in the matter.
PN350
THE COMMISSIONER: Well, Mr Houlihan has given an undertaking on the transcript about that.
PN351
MR HANKIN: Yes. But that was before - he gave that without talking to his clients.
PN352
THE COMMISSIONER: All right. At some point we can get that clarified if need be, but at this stage I accept the - - -
PN353
MR HOULIHAN: I have got to say it's a bit offensive, Commissioner.
PN354
THE COMMISSIONER: I accept the submission that you put is made properly, and if there was a debate about it in due course, no doubt the transcript will be trotted out, and if it was necessary, Mr Houlihan could be hoisted on that petard. But I accept what he says.
PN355
MR HANKIN: Thank you, Sir.
PN356
THE COMMISSIONER: All right. I will adjourn these proceedings into a conference, see where we might go with these matters and, in due course, if necessary, we'll come back on the record to take further submissions. We'll adjourn on that basis.
OFF THE RECORD [11.11am]
RESUMED [1.32pm]
PN357
THE COMMISSIONER: I should indicate for the record that during the adjournment I chaired a conference involving the parties to see if there was a basis in which we might have been able to progress the previous negotiations that had taken place between them. However, we reached a point where there is an impasse in terms of what Mr Houlihan's clients want in relation to information about the contracts that apply at Pine Gap and the reluctance on the part of Mr Montgomery and his company to reveal what, from his point of view, is confidential information.
PN358
That being the case, we were not able to make any further progress and so I will invite the parties to put any further submissions or evidence before the Commission related to the application that is before it and we will go from there. Mr Houlihan.
PN359
MR HOULIHAN: Commissioner, just picking up as it were the point that you've just made in your summary of the situation, in fact a couple of points. But the first one is that Mr Montgomery is unable to reveal on their work by - because of privacy concerns the rates of pay of people, Mr Hankin had no problem about revealing the rates of pay of Mr Dawkins in this matter. So it seems a bit opportunistic the concern they have about the privacy of people's rates of pay. Commissioner, the other thing as you correctly said in your summary of the situation was that there was no progress able to be made.
PN360
And, in our respectful submission, that has been the situation since November last year. There has been no progress that has been made. The reason no progress has been able to be made is that it is impossible for us to try and negotiate the issue which is of concern to our clients without having a position from which we can commence that negotiation. Commissioner, last year we went through a similar exercise with another US defence contractor at Pine Gap but we were able to get the necessary starting point which wasn't the finishing point but it was the starting point which enabled a proper negotiation to take place.
PN361
And the point that was made throughout the conference that you chaired today, and we thank you for that, is that, with some goodwill, the very real problem of exchange rates, and we understand and accept and acknowledge that exchange rate movements are a problem in this context, but that very real problem can be addressed and can be solved. The point that you make again is valid and that is that we are unable to progress from where we've been, as I say, since November last year. Commissioner, we'd like to call two witnesses.
PN362
The first of those witnesses, Mr John Dawkin, to give evidence pertaining to the actual and threatened industrial action at Pine Gap, at Raytheon, Pine Gap. And then we will call Mr Chris Martin to take some evidence on related matters from him. So I'd like to call firstly Mr Dawkins if I may.
PN363
THE COMMISSIONER: Thank you. Yes, Mr Hankin.
PN364
MR HANKIN: Can I request that Mr Martin leave the court room while Mr Dawkins is giving his evidence.
PN365
THE COMMISSIONER: Yes. That would be appropriate.
PN366
MR HANKIN: I also seek leave for Mr Montgomery to be present in order to provide me with instructions.
PN367
THE COMMISSIONER: Yes.
PN368
MR HOULIHAN: Well, Commissioner, I've got to say to you, I think in a matter like this where we have just been through, you know, a couple of hours in conference, that is a dead set Adelaide idea. It is rough - - -
PN369
MR HANKIN: It is dead set national justice - - -
PN370
THE COMMISSIONER: Hang on. Take it easy folks. It is Friday, you know, let's us - just settle down.
PN371
MR HOULIHAN: Well, I mean, look, you know, if my friend wants witnesses out, okay, witness is out. But he is not going to - you know, it is a bit rude to have witnesses out except for his witness.
PN372
THE COMMISSIONER: Well, I think Mr Hankin is entitled to be instructed in terms of whatever evidence might be given. If there is any particular aspect of the evidence that emerges which you say might create some difficulties from your point of view, Mr Houlihan, you could bring that to my attention at the time and I will deal with it.
PN373
MR HOULIHAN: I think it will or it could seriously jeopardise my cross-examination of Mr Montgomery.
PN374
THE COMMISSIONER: Well, at this stage I'm prepared to allow Mr Montgomery to stay to provide instructions to Mr Hankin.
PN375
MR HOULIHAN: Mr Dawkins please.
PN376
THE COMMISSION: State your full name and address please.
PN377
PN378
MR HOULIHAN: Just for the reporter, Mr Dawkins, can you give your name and address again so that she can .....?---John Dawkins, 20 Clark Street, Alice Springs.
PN379
Thank you. Mr Dawkins, you are effectively the shop steward for the 39 employees who I represent; is that right?---That is correct.
PN380
And, Mr Dawkins, how long have you been at Pine Gap?---Can I go back on that one question.
PN381
Yes?---For those who are members of the AMWU, the union you represent, not everybody of the 40 are AMWU members.
PN382
Right. Thanks for that clarification. And how long have you been at Pine Gap?---I've been at Pine Gap since 1989 and employed by Raytheon since 1991.
PN383
And when you started your employment with Raytheon was it normal practice to find out what your fellow workers were being paid; was that - - -?---Yes. That was the general consensus that everybody tends to do it, compare wage packages.
PN384
And in those days how did your package compare or packet compare - - -
PN385
THE COMMISSIONER: Yes.
PN386
MR HANKIN: There is an application before the Commission to terminate a bargaining period pursuant to section 170MW(3) that requires evidence in relation to the fact of industrial action and the impact of that industrial action. It doesn't go into any of these other extraneous issues. So the objection is relevance.
PN387
THE COMMISSIONER: Mr Houlihan.
PN388
MR HOULIHAN: Goes to the reason, Commissioner, of what it is all about. Goes to - just simply goes to - it goes to why the whole thing has become an issue. And it goes to the issue of threatening in 170MW(3).
PN389
THE COMMISSIONER: All right. Well, I will allow it but I accept that the objection made by Mr Hankin is relevant to the extent that the evidence that we're now taking impacts upon the section of the Act with which we are dealing.
PN390
MR HOULIHAN: All right. Mr Dawkin, the question was, in '91 was there a comparability between rates of pay between Australians and Americans?---Not exactly but it is a lot closer than it is today.
PN391
And the variation that has occurred in those rates, how much - is some of it attributable to exchange rate movements?---I would say 90 per cent of the difference is attributable to exchange rate movements and others to the dot.com ..... that Mr Montgomery mentioned earlier.
PN392
But the effect has been a significant deterioration in the comparison?---Yes.
PN393
MR HANKIN: I will just place on the record, I continue to object to the relevance of the questions but I don't wish to be jumping up and down and I don't wish it to be taken by silence I'm agreeing that the questions are relevant.
PN394
THE COMMISSIONER: All right. I note the objections, Mr Hankin.
PN395
MR HOULIHAN: Mr Dawkins, I want to bring you forward now to the negotiations around the recently expired enterprise agreement. Can you recall when the agreement expired?---It was June, 31 last year, 2002.
PN396
And when did you put some proposals to the company in relation to that agreement?---Excuse me. I think from memory we started preliminary negotiations into the new certified agreement at or around April 2002.
PN397
And what was significant about the demands for the loading by the Australian employees?---Well, one of the conditions that we mentioned early in the peace with negotiations was that TRW were in the process of going down the alley that we've all discussed and, while we asked Mr Montgomery then what he projected would be the rise he would offer, he said what he is still offering now is three per cent. And we flagged the fact that depending on the outcome of the TRW dispute that was, at that time ongoing and being heard in the Commission, we would be looking for equal pay for equal work as TRW are, especially if they were successful.
PN398
And can you take us how the period developed after that? What happened after that?---Well, after that nothing much - we were talking about peripheral stuff mainly cost mutual stuff in the certified agreements and amendments that we wanted. Some changes that we were proposing and investigations towards them were going ahead. And then, I think it was in July or August last year, the outcome of the TRW case was finalised. At about that time Mr Montgomery was going back to the United States for contract negotiations. And so I think it was a matter of days between TRW going, resolving their dispute and Mr Montgomery going back for negotiations. So I tried calling because I was on long service leave at the time and said "look, the outcome has been and then we wanted to make sure you were aware of it". Upon his return from negotiations, Chris Martin, myself and then another shop steward, Chris Hills, went to negotiations with Mr Montgomery and we discussed the TRW settlement. And he said to us that he would go to the management of TRW and see exactly what was the outcome of that because he hadn't been made fully aware of the details of it. He never really did that. He never got back to us although he had said he would, but he never really got back to us on the details of that. We put in some proposals based on the fact that he never got back to us on the outcome which were rejected. We've redowned figured once he corrected us with our figures, we went back and we downsized our claim again and we continued to press those claims to address the core issue of equal work for equal pay.
PN399
Have you ever had a starting figure for comparable American employees, an official .....?---Mr Montgomery has never been prepared to let us know what the starting figure is for any level job so that we can build a comparable case or a case for a comparable pay system.
PN400
Can you take us through then what happened - what steps you and your co-workers took in terms of progressing this matter?---Well, we went to Povey and Stirk, solicitors in town, and discussed it with them. We then involved you and your company in it because you had intimate involvement because you represented CRW as well, so because it was, as we saw it, exactly the same situation. Having been down that line - your research was already up to date in some areas - so we continued down that line. Part of that - after the Industrial Relations Commission hearing last November, the bargaining period commenced. We notified Raytheon of the bargaining period. We notified Raytheon in November there was going to be industrial action in December, which we cancelled because we felt that not everybody had had adequate time to discuss the facts and - - -
PN401
Was this taken pretty seriously by the people that you represent?---Very seriously.
PN402
And, in fact, the reason that it was delayed was because people were uneasy about it?---Well, no, they just felt that they didn't have enough information given to them at the time to take a big step of industrial action in the form of a stop-work meeting.
PN403
Would most of these people ever have taken industrial action before??---Never. To my knowledge, very few people have been involved in industrial action prior to this in any other workplace.
PN404
So the issue was reconsidered in December?---Yes.
PN405
And then what happened?---And then we discussed the issues amongst people. The letter that Mr Hankin referred to, I think from memory, dated on 8 January saying that we hadn't notified everybody, being the other employees that weren't represented by Povey Stirk and IR Australia. So we notified them - we delivered them the notices. We gained receipts from them that they'd received them, and then after that we notified Raytheon that we would be commencing industrial action in the form of stop-works.
PN406
THE COMMISSIONER: Just in relation to this point; I needed to get it cleared up at one stage. You indicated earlier in the proceedings, Mr Houlihan that the bargaining period had commenced, is there a formal bargaining period notice and a BP number associated with that that you can provide for the Commission?
PN407
MR HOULIHAN: Can we find that - - -
PN408
THE COMMISSIONER: In due course, yes.
PN409
MR HOULIHAN: - - - among our - can we find it among the souvenirs, Commissioner, and get it to you?
PN410
THE COMMISSIONER: Yes, indeed, thank you. That would be helpful.
PN411
MR HOULIHAN: Is that the - did you want to ask - - -
PN412
THE COMMISSIONER: No, it was just that it came up at that stage and it jogged my memory.
PN413
MR HOULIHAN: Mr Dawkins, you told us now that the six Australians that we don't represent you served them with the bargaining notice?---Yes.
PN414
Then take us through the next steps?---Well, after getting receipts from those people that - all but one because one of them was on leave - we then notified Raytheon management that industrial action would commence; I think, from memory it was on 20 January we notified them of that, that we were commencing industrial action, and we gave them three days' notice that industrial action would commence. And on 24 January, at 1 am, all Australians who were on duty at that time withdrew labour and walked off the job.
PN415
Now you heard this morning at the outset of these proceedings Mr Hankin give details of the number of Australians who are involved in this action. Were those figures accurate?---Well, they were probably accurate in the fact that Mr Hankin said there were six walked off the job on the first day, but that was all Australians that were scheduled for duty that day.
PN416
Yes?---So everybody that was signatory to this IR Australia and Povey Stirk in this dispute walked off the job without fail. So everybody that was there did that.
PN417
And on the second occasion - second time - there was a stoppage of work?---On the - - -
PN418
What time was that? What day and what time was that?---That was at 0730 on 31 January. It was decided that we would do exactly the same thing; Australians wouldn't report for work at the start of their shift. Now all the shift people involved, from memory, did take part in it, and I can't comment on the day labour because it's such a fractured organisation, all over the buildings, it'd be virtually impossible to know who was there the whole day, part of the day, you know, it would be just impossible to know.
PN419
But to the best of your knowledge, again, everyone involved went?---To the best of my knowledge, yes.
PN420
THE COMMISSIONER: Just to be clear about that. Is it more correct to say that the people didn't report for work because some would have been scheduled for work and others wouldn't have?---Correct. And some, as Mr Hankin pointed out earlier, had already scheduled before the notification of the decision to take industrial action on that Friday the 31st, had applied for days off, or leave, or they'd applied for flexi days off or whatever the case may be.
PN421
THE COMMISSIONER: Yes?---They'd worked the previous public holiday on the Monday, which was Australia Day, and then they took the Friday off, for whatever personal reasons; they had business that they needed to take care of. So those that didn't participate in industrial action per se, the reason - the ones that I'm aware of - had already scheduled either leave or - in advance of that.
PN422
THE COMMISSIONER: All right.
PN423
MR HOULIHAN: Was that the stoppage after which Mr Rowlands was dealt with?---Yes. Mr Rowlands, after that was taken by the chief of Raytheon operations, Mr Bob Ostergaard, and told that he was going to be stood down from the operation shift supervisor position and he was then scheduled at the entry level position, which is the people - new arrivals and new trainees.
PN424
And was that made known to anybody else?---Well, it was via - it was made known to everybody at site because they produced a shift schedule, which is our bible, for when we turn up for work or who does what job and who is the supervisor, who isn't the supervisor. It was made known site-wide that this was done, and the reason Mr Rowlands was given was because he couldn't be trusted.
PN425
And he's one of the Australians who took part in industrial action?---That's correct.
PN426
And was there some action threatened on behalf of Mr Rowlands?---He asked during his discussion with the chief of operations, he said, "So I've been sacked as OSS." He said, "No" - he said that "We can't trust you so we're replacing you with Mr Anthony Smith." Mr Rowlands then asked Mr Ostergaard, "How long for? Is this just during the dispute?" And his answer was - the answer given to him was that it would be reviewed when he came back from annual leave, which was in March or April.
PN427
THE COMMISSIONER: Are you relating that from first-hand knowledge or from what you were told?---Well, prior to this there'd been some Australians who had been counselled for various reasons, and we'd written to management asking that if somebody was going to be counselled for disciplinary action, that they're notified of the reasons for the meeting prior to the meeting commencing so that employee could have his shop steward present. And once again - it didn't happen the first time, and then Mr Rowlands was called into the office in, what I'd describe as being ambushed by the chief of operations and told that he was being demoted. I once again argued with Mr - - -
PN428
What I am getting at though was were you present - - - ?---No.
PN429
- - - when that occurred?---No, sir, I wasn't.
PN430
So it's- - -?---It was reported to me by Mr Rowlands, the person that was - as the shop steward.
PN431
Thank you.
PN432
MR HOULIHAN: In the end, no action was taken against Mr Rowlands, is that right?---There was no loss of pay associated with his replacement from the shift supervisor position. It was more of a severe humiliation to him, that after 15 years with the company and 10 years as an operation shift supervisor that he was taken off the position on the schedule - shift schedule as the operational shift supervisor and put in the entry level position.
PN433
And was there any - in your role as the delegate, did other people come to you about issues of what they saw as intimidation?---Yes, there was. Prior to the first industrial action taking place, which took place with the crew that I was on, on the first nightshift - and we do three nightshifts, three day shifts, primarily - on the first nightshift the shift supervisor, Mr Robert Blomberg, was approaching, AMWU members in this case because they all were members of the union, and signatories to this claim and asking them, with a clipboard in hand, "Would you be participating in industrial action?" And the answer was yes or no. One of two people did answer the question and then came to me saying that, "Look, the supervisor's coming up to us and saying, you know, 'Will you be participating in industrial action, yes, no?'" And they feared that this may have an impact on their career with the company if they, depending on the answer. So I went to Mr Blomberg and asked him to stop it, which he agreed to do. And then I roasted to Mr - both Mr Ostergaard - because Mr Blomberg had indicated to me that Mr Ostergaard, the chief of operations, had told him that this was what he was going to do - I then roasted Mr Ostergaard and Mr Montgomery about the matter and Mr Montgomery replied, saying that it was his legal advice that he could actually do that and that he would continue to do so. And that did continue because people afterwards were still asked, would they be participating in industrial action. This is before any industrial action had actually taken place.
PN434
Would you go on now, after the Robert Rowlands incident, that was in conjunction with the second stoppage?---Yes, that's right.
PN435
Now, there's been a third stoppage, as I understand?---That's right. At 1 am on 1 February, basically 12 hours after the completion of the previous one, the crew on duty then went on - took industrial action again, at 1 am until 7.30, which was the end of their watch.
PN436
Has there been consideration given to the continuance of industrial action?---Yes, there has.
PN437
And have you been able to talk to many of the people concerned about that?---Well, being a shiftworker myself it's sometimes difficult to get to everybody in a timely manner; they work different shifts and they're off while I'm on and I'm on while they're off, etcetera, etcetera. And so those people that I've been able to get to - and still in the process of getting to - have all indicated that they are prepared to continue the industrial action. Some I haven't got definite answers; I can't speak to them because I haven't had the opportunity to get to them yet.
PN438
So it's your evidence that there has been - - -
PN439
MR HANKIN: Perhaps my friend could not lead and just let him give his evidence.
PN440
THE COMMISSIONER: Yes. Can you put it another way, Mr Houlihan?
PN441
MR HOULIHAN: Yes. I was wondering when I was going to get pulled up, Commissioner.
PN442
THE COMMISSIONER: Yes, I've let you go for a while. I was waiting for the other end of the Bar table.
PN443
MR HOULIHAN: Is it your evidence that there has been a series of - - -
PN444
THE COMMISSIONER: Stay there, Mr Hankin.
PN445
MR HOULIHAN: Has there been a series of stoppages of work by the people involved in this application at Raytheon?---Yes, there have.
PN446
Is it the intention that there will be further industrial action by the people respondent to this application at Raytheon?---Like I said, I haven't been able to ascertain that from everybody, yes, but from those I have been able to - had the opportunity to discuss it with, the intention is to continue with industrial action.
PN447
I've got no further questions, Commissioner.
PN448
PN449
MR HANKIN: To your knowledge, has the industrial action which is taking place, had any impact by way of endangering the life of any person?
PN450
MR HOULIHAN: Commissioner, I think that might be stretching the - - -
PN451
MR HANKIN: It's a legitimate question.
PN452
MR HOULIHAN: It's a perfectly legitimate question.
PN453
THE COMMISSIONER: If it's posed in the terms of, to the best of the witness's knowledge, it may be - - -
PN454
MR HOULIHAN: It's not a question of his knowledge, Commissioner, it's a - - -
PN455
THE COMMISSIONER: I thought that's what you said.
PN456
MR HANKIN: That's the question I was asking - - -
PN457
MR HOULIHAN: That's what the question is. What I am saying is, I don't know that he can answer that to the best of his knowledge.
PN458
THE COMMISSIONER: Then that's what he'll tell us, I guess, if he can't.
PN459
MR HOULIHAN: Right.
PN460
MR HANKIN: To your knowledge, has the industrial action which has taken place endangered the life of any person?---To my knowledge it has the ability to.
**** JOHN DAWKINS XXN MR HANKIN
PN461
To your knowledge, has it endangered anyone?---No.
PN462
To your knowledge has it caused any damage to the Australian economy?---No, except my pay packet.
PN463
THE COMMISSIONER: Which, in the context of these proceedings, could be, I suppose.
PN464
MR HANKIN: You are aware that the company rostered more employees on for the shifts when the industrial action was signalled as being likely to happen?---Yes, if scheduled and this is to my knowledge at least, and make schedule changes to ensure that extra people were scheduled on to make sure that when people walked off the job all positions were manned, for want of a better word. How long they continued that I don't know.
PN465
To your knowledge the extra people that were scheduled were perfectly skilled and capable of carrying out the tasks of the employees who engaged in industrial action?---Whether they are skilled and capable of doing it after six nightshifts in a row I don't know but yes they had the qualifications.
PN466
Now you mentioned my letter to Commissioner Eames, that is the letter dated 8 January, can the witness be shown that.
PN467
THE COMMISSIONER: Exhibit R1.
PN468
MR HANKIN: Exhibit R1. Have you seen that letter before, Mr Dawkins?---Yes, I have.
PN469
And you were provided with a copy of that by Mr Stirk or Mr Houlihan?---Yes.
**** JOHN DAWKINS XXN MR HANKIN
PN470
And did you receive a copy of that letter shortly after 8 January?---Yes, sometimes after, yes.
PN471
And it was the receipt of that letter which spurred you into serving on the employees - of the Australian Raytheon employees who aren't represented by yourself and IR Australia, copies of the bargaining period notice?---Well, it has always been our intention as part of - - -
PN472
MR HOULIHAN: Commissioner?
PN473
THE COMMISSIONER: Yes.
PN474
MR HOULIHAN: Could I just raise the issue of relevance here. I mean, this is about MW(2) not MW(3).
PN475
THE COMMISSIONER: As it goes to the question of the notice of the bargaining period, because I've already expressed an interest in that myself, I will allow that aspect of the question but I note your point that in fact the question that is before the Commission deals with section 170MW(3). In fact, there has been a concession already made that section 170MW(2) has been abandoned. Perhaps - - -
PN476
MR HOULIHAN: No. With great respect, Commissioner, it was never our intent to go to 170MW(2).
PN477
THE COMMISSIONER: All right.
PN478
MR HOULIHAN: The you should surely - the only issue of relevance here is the issue of service not of intent. And there has been no argument about service.
**** JOHN DAWKINS XXN MR HANKIN
PN479
THE COMMISSIONER: All right. Well, I've forgotten your question again.
PN480
MR HANKIN: I will start again. It was your receipt of a copy of my letter to the Commissioner dated 8 January which spurs you into providing to the other Australian employees a copy of the notice of initiation of bargaining - - -
PN481
MR HOULIHAN: Again, what is the relevance?
PN482
THE COMMISSIONER: Well, I will allow the question. I am interested in the answer.
PN483
THE WITNESS: I don't think I was spurred into action. It has always been the intention of Povey Stirk, IR Australia and employees - Australian employees of Raytheon, who are represented by those people, to do the correct thing. If your company rightfully point out that we hadn't advised everybody, we were determined to ensure that everybody who was entitled to know was notified. And I did that as quickly as I could.
PN484
MR HANKIN: And I'm not meaning to - there is nothing hidden here. It was simply the case that until you received a copy of my letter you were unaware that the other employees needed to be served with a copy of the notice of initiation of bargaining period?---Well, I know that they were aware of negotiations. They were aware that the Industrial Relations Commissioner had met to discuss the matter. They had been - so they knew that the discussions and negotiations and the arguments and the dispute had commenced. No stop work - industrial action had been commenced but the dispute was taken place but I personally was not aware that they needed to, I'm not legally trained.
PN485
You discovered from my letter to the Commissioner that until they were served with a copy of the bargaining period notice, the bargaining period couldn't actually commence?---Well, once again I'm not a lawyer so may be ask a lawyer.
**** JOHN DAWKINS XXN MR HANKIN
PN486
You found that out from my letter did you not?---No. I found that out from John Stirk who may have taken that inference from your letter. But Mr Stirk then directed me that this was the way to go about doing things and that is the way I did it.
PN487
Yes. So prior to receipt of my letter to the Commissioner, you are aware that on the 19 December Mr Stirk had written to the Commissioner seeking a hearing to:
PN488
Bring about a cessation of bargaining period initiated by the Australian employees of Raytheon in November.
PN489
THE WITNESS: Was I aware of that?
PN490
You were aware that Mr Stirk wrote to the Commissioner on 19 December seeking a hearing to terminate the bargaining period?---Yes.
PN491
And you were aware that in that letter Mr Stirk said, and I quote:
PN492
This step is being taken in light of the steadfast refusal by Raytheon and its representatives to engage in any form of discussion relating to the issues that had been raised by the Australian employees.
PN493
THE WITNESS: And that was the advice I had given to Mr Stirk that we had had no meaningful discussions and negotiations but you're asking me to think on Mr Stirk's behalf.
PN494
No. I'm just asking whether you were aware that that is what Mr Stirk put in his letter?---Yes. All right, yes.
**** JOHN DAWKINS XXN MR HANKIN
PN495
And as at the date that Mr Stirk wrote to the Commissioner seeking a term for hearing to terminate the bargaining period there had been no industrial action?---That is right.
PN496
There had been a threat of some industrial action but that threat had been withdrawn?---That is correct.
PN497
So as at 19 December you and the other employees whom you represent were seeking to terminate - were seeking a hearing to request the Commissioner to - the Commission to terminate the bargaining period and as at that date there had been no industrial action?---That is correct.
PN498
And as at date you didn't have any industrial action planned?---That is not correct.
PN499
In what way is that not correct?---Because we had been planning industrial action, whether we had done it through Mr Stirk or Mr Houlihan or whether we notified anybody the bargaining period, we were already in the process of discussing and negotiating and agreeing amongst those who were signatories to this complaint what form of industrial action we would take. So we had planned industrial action.
PN500
Yes. But as at 19 December you were hoping to have the bargaining period terminated and you were hoping to have the Commission arbitrate on the issues; isn't that correct?---Yes.
PN501
And - - -
PN502
MR HOULIHAN: Again, Commissioner, how does this fit within the purview of what is required in this section of the Act? I mean, the evidence from the witness is that there was an intent to take industrial action, the evidence in cross-examination. The evidence in cross-examination is that the threat to take industrial action was there that is what is necessary. That is what has got to be complied with. I don't see that this advances the cause one inch.
**** JOHN DAWKINS XXN MR HANKIN
PN503
THE COMMISSIONER: Mr Hankin.
PN504
MR HANKIN: I don't intend to answer that while the witness is present in the room because I think it would be inappropriate. That is a necessary laying of some foundation stones for the next group of questions.
PN505
THE COMMISSIONER: Do you intend to follow this line of questioning much further?
PN506
MR HANKIN: I've got enough on that particular aspect. I'm about to move onto a related but different topic.
PN507
THE COMMISSIONER: All right. Okay. Well, let's see where that goes.
PN508
MR HANKIN: As well as receiving a copy of R1 on the - that is the letter to Commissioner Eames, did you also receive a copy of a letter from myself to Mr Houlihan?---Has that been tendered at all?
PN509
It hasn't been tendered yet?---There was a couple of letters I couldn't - - -
PN510
I've got a copy to provide for the witness to see if he can remember it?---Thank you. No, I haven't seen this, sir.
PN511
You haven't seen that one?---No.
PN512
THE COMMISSIONER: Did you want that back?
**** JOHN DAWKINS XXN MR HANKIN
PN513
MR HANKIN: It may as well come back. The witness hasn't seen it. He hasn't seen it. I've got another letter to proceed past the witness if he has seen it?---We did receive those. If I could go on with that a little bit. That same - similar contented messages from Mr Montgomery through work, through our email, saying that you were going to push to have costs awarded to us for this hearing. So the contents of that message were related to us by Mr Montgomery in an email.
PN514
There is another letter in front of you addressed to Mr Stirk; have you seen that before?---No.
PN515
All right. That can come back as well.
PN516
THE COMMISSIONER: Can go back too.
PN517
MR HANKIN: Now, on 20 January 2003 you sent to Mr Greg Montgomery a document headed:
PN518
Notification of intended industrial action, this letter serves as written notice pursuant to section 170MO of the Workplace Relations Act to Raytheon Defence Systems Inc the company that industrial action will take place at Joint Defence Facility Pine Gap, Alice Springs by employees of the company whose collective interests are represented by Povey Stirk and IR Australia Pty Ltd following the expiry of 72 hours from the receipt of this notice of the following nature. (1) Work stoppages plan to commence on or after one am each with a possible duration of up to 24 hours commencing Friday, 24 December 2003.
PN519
Do you remember sending that to or giving that to Mr Montgomery?---Mr Montgomery was on a public holiday that day. I believe it was Martin King's birthday and I delivered it and had a receipt signed by Mr Holland who is standing behind you.
**** JOHN DAWKINS XXN MR HANKIN
PN520
Now the - approximately when after 8 January do you think you may have received a copy of my letter to Commissioner Eames? How long do you reckon it might have been? That letter was dated 8 - - -?---I honestly couldn't say what date it was. I don't know.
PN521
Within a week?---Of the 8th?
PN522
Yes?---Possibly. I really - it could have been a week before industrial action. It could have been around - yes, so probably around a week in between that - me notifying Mr Montgomery on the 20th and the 8th. Yes, I'd say it was somewhere in between that, yes.
PN523
Isn't it the case that the reason why on the 20th the notice of industrial action was given to Raytheon was because in my letter to Commissioner Eames, that is R1, I pointed out that there couldn't be an application to terminate the bargaining period unless there had been industrial action? Didn't the one spur on the other?---There - - -
PN524
THE COMMISSIONER: Mr Houlihan.
PN525
MR HANKIN: I don't wish the witness to hear any objection because it might affect his answer.
PN526
MR HOULIHAN: There is two questions being asked the witness, Commissioner. Have a go at one at a time and see if we can do it.
PN527
THE COMMISSIONER: All right then. See if we can take it in stages then, Mr Hankin.
PN528
MR HANKIN: Isn't it the case that the reason why you and your colleagues decided industrial action had to take place at the time you did was because my letter to the Commissioner made you aware that there could have been - - -
**** JOHN DAWKINS XXN MR HANKIN
PN529
MR HOULIHAN: Commissioner, we have an objection about him speaking to his colleagues before, now he is being asked a question to speak for his colleagues.
PN530
THE COMMISSIONER: Well, I'm not sure is it? It is a specific question to the witness?
PN531
MR HANKIN: Well, I will drop off the reference to his colleagues. That finds Mr Dawkins to be saying at all times that all industrial action has been a collective decision and not of Mr Dawkins to seek.
PN532
THE COMMISSIONER: Well, perhaps if you ask the question directly of the witness, it is probably on safer ground of being allowable.
PN533
MR HANKIN: Isn't it the case that you decided that industrial action should take place because you were made aware by my letter to the Commissioner that unless there was industrial action there couldn't be a termination of the bargaining period?---Can you say partially?
PN534
The answer is - - -?---Is partially.
PN535
THE COMMISSIONER: Well, what - - -?---We've already decided that industrial action was going to take place prior to Christmas. That we were going to take strike action. That was always the intention to advance our case. Now the reason we, as I said earlier, we always attempted to do everything correctly. Now partially your letter may have made us change tactics to make sure that we were doing everything within the law and under protected action. So we may have changed tact a little bit but the intention was always there to take industrial action. But it didn't occur - may be the type or not necessarily the type, the action didn't take place because we were dotting the "i" and crossing the "ts" of your office rather than dealing with the issue.
**** JOHN DAWKINS XXN MR HANKIN
PN536
But the spur for the industrial action was realisation that there had to be industrial action before the Commission could terminate the bargaining period?---No. What I just said, we had already decided that we were going to take industrial action. That was always going to be the course of action that we took was industrial action. We may have done it outside of protected industrial action if some of the issues that you raised in your letter hadn't come to light then we notified - made sure that everybody was notified of the bargaining period. And after that we took industrial action but it was always the intent to take industrial action.
PN537
But the whole idea of industrial action had been placed on ice?---At that time - on 24 - on 19 December, yes. We had decided until we made sure that everything we were doing was covered by protective action we would not take any. Now it was your office prior to this - to Christmas that it said that - you hadn't been specific but you've written to Mr Stirk's office and through them, Mr Houlihan, saying that you didn't recognise the bargaining period. So we hummed and haaed as to what part of the bargaining period had been correct. So we didn't want to take industrial action and I didn't want to risk those people's jobs by taking industrial action that wasn't protected. So we made sure that the bargaining period had been correctly notified before we took that industrial action.
PN538
And you decided, as at the time the letter was sent to the Commission asking for hearing to determine that bargaining period, you decided at that point that industrial action was unnecessary hadn't you?---No. No. We decided on 19 December to cancel the stop work meeting that was planned for that day because there had been a letter and exchange of words in some way, I can't remember, that we hadn't correctly notified Raytheon Systems of the correct bargaining period stuff. So we didn't want to take action that wasn't protected. So that was the reason we didn't take industrial action at that time.
PN539
Now it is the case, is it not that when you decided to take industrial action and on the type of industrial action, neither you nor any of your colleagues had any intention of endangering the life of any person?---Commissioner - - -
**** JOHN DAWKINS XXN MR HANKIN
PN540
MR HOULIHAN: What does he say, yes, we did intend to endanger the life of people.
PN541
THE COMMISSIONER: If he says that it might be significant. If he doesn't I don't know what it means.
PN542
MR HOULIHAN: Well, I don't know what it means. I think the question is outrageous, Commissioner.
PN543
THE COMMISSIONER: Entitled to put it. It has got reference to those aspects in the section 170MW.
PN544
MR HOULIHAN: Commissioner, again, how does this person speak for his colleagues intentions.
PN545
MR HANKIN: I will restrict it to Mr Dawkins.
PN546
MR HOULIHAN: Thank you.
PN547
MR HANKIN: Mr Dawkins, when you decided to take industrial action you had no intention of endangering the life of any person?---I find the question offensive to be honest. But, no, I did not intend to take anybody's life.
PN548
And you had no intention of endangering the personal safety or health or welfare of any person?---Once again, I find the question offensive but no.
PN549
And you had no intention of causing significant damage to the Australian economy or any part of it?---Well, that wouldn't have been intention but I can't say whether that would be a potential impact either.
**** JOHN DAWKINS XXN MR HANKIN
PN550
That wasn't your intention was it?---No, it was not my intention.
PN551
Your intention was to try and advance your claims was it?---Yes. Of course it was.
PN552
You gave evidence that Mr Blomberg asked people whether or not they would intended to take industrial action?---Yes. That is correct.
PN553
And that is all he did didn't it? He just asked you "do you intend to take industrial action"?---No. That is not all he did.
PN554
And he made it very clear that the reason he was asking was for purposes of scheduling staffing levels?---No. He never explained that to the members when they were doing it. He approached them on a one on one basis with a clipboard in his hand and said "do you intend participating in industrial action, yes or no" and then make a tick on the box depending on the answer. Some refused to give - tell him to mind his own business, that it was none of his business. Some said yes. And he only got three before they come to me and said that they were - and they all obviously felt intimidated when your supervisor walks up to you and says "do you intend to participate in industrial action, yes or no". That they felt that may be it could affect their training down the road or their job security down the road. Is there going to be some form of retribution from the company down the road.
PN555
When you raised this issue with Mr Montgomery, he made it quite clear to you that there was no purpose behind the request other than proper staffing didn't he?---Words to that effect. And he didn't consider that - he said that he didn't consider it intimidation and he would continue the practice.
PN556
And you're also aware that there is a different story, there is another side to the story about Mr Rob Rowlands to the one that you've just told the Commission?---Well, I was - - -
**** JOHN DAWKINS XXN MR HANKIN
PN557
You are aware that there was another side aren't you?---Yes. But I don't believe it.
PN558
THE COMMISSIONER: I'm sorry, I didn't hear that last exchange.
PN559
MR HANKIN: I said "you are aware that there are - there is another side to the story that he has given about Mr Rob Rowlands" and the witness said "I am aware but I don't believe it".
PN560
MR HOULIHAN: Well, we've had the advantage of this side of the story but it is sworn evidence. I don't know what that side of the story is but - - -
PN561
THE COMMISSIONER: Nor do I.
PN562
MR HANKIN: And you were told that the other side of the story was that Mr Rowlands had given an undertaking that he - that as supervisor, if he decided to take industrial action, he would let the company know so that somebody else could be brought in as supervisor; you're aware of that aren't you?---That is not what Mr Rowlands said to me. And it slightly differs to what the explanation given to me too. What Mr Rowlands said to me was the previous day he was asked by Mr Ostergaard during the meeting that - a regular meeting between shift supervisors and the Chief of Raytheon, that in the event of industrial action commencing during his watch what would he do. And Mr Rowlands answered "that in the event that industrial action does start during my shift I will follow the directions given to me by management in that I am to notify Mr Montgomery and Mr Ostergaard regardless of time of day". Now, had Mr - and Mr Rowlands assured Mr Ostergaard that if industrial action had commenced at one am and he was on duty at the time industrial action commencing he would have rang both Mr Montgomery and Mr Ostergaard and notified them with that industrial action was taking place. Now, the next day at 7.30 that industrial action commenced, Mr Rowlands wasn't on duty.
**** JOHN DAWKINS XXN MR HANKIN
PN563
To your knowledge, Mr Rowland was neither demoted nor threatened with demotion but simply made second point of contact on the roster and it was told to him that that was while the industrial action was taking place?---No. That is not what Mr Rowlands - - -
PN564
That is so isn't it?---
PN565
THE COMMISSIONER: He has answered the question.
PN566
THE WITNESS: I was going to say that, no, that is not what Mr Rowlands related to me.
PN567
MR HANKIN: You actually have no personal knowledge of what took place at all do you between Mr Rowlands and Raytheon?---Yes. I could ask that same question with you.
PN568
I'm asking the questions, you're the witness giving the answers.
PN569
THE COMMISSIONER: You are in the witness box, Mr Dawkins. Your role is to answer questions.
PN570
THE WITNESS: Could I have the question given again please.
PN571
MR HANKIN: You have no personal knowledge of what was said either by Mr Rowlands to any Raytheon representatives or what was personally known what was said to him?---Only the word of a colleague that I'd been working with for 15 years.
PN572
No further questions.
**** JOHN DAWKINS XXN MR HANKIN
PN573
PN574
Only a couple in re-examination, Mr Dawkins. You were asked some outrageous questions about - - -
PN575
MR HANKIN: Objection.
PN576
THE COMMISSIONER: Yes. Well, I will deal with whether they were or they weren't when I issue my decision.
PN577
MR HOULIHAN: You were asked about the intention of injuring the Australian economy; do you recall those? Or risking people's lives?---That is correct.
PN578
Were you concerned that your industrial action may have an impact on national security?---I can't answer that.
PN579
Could the action taken have or the action - - -?---I can't answer that based on the classification of my job and the security system.
PN580
I'm sorry. I won't ask you about that. Could Raytheon continue to schedule, I think the expression used was extra people. I can't remember whether you said it or Mr Hankin asked the question about extra people that that is what happened during the stoppages. Could Raytheon, in your opinion, continue to schedule extra people indefinitely?---No.
PN581
Now I want - how long do you think, in your experience there, that they could keep covering? Would it be a fortnight? Would it be a week?
PN582
MR HANKIN: This doesn't arise out of cross-examination at all.
PN583
MR HOULIHAN: Well, it does, Commissioner, in that - - -
PN584
MR HANKIN: It doesn't.
PN585
THE COMMISSIONER: Well, there was reference made in the evidence to the coverage situation so I'm prepared to allow the question.
PN586
THE WITNESS: The question was how long would they be able to continue that practice?
PN587
MR HOULIHAN: Yes?---It would be a guesstimate but I would say for - to cover all the positions and all the shifts, a week - max, yes.
PN588
Now I want to take you to that period that Mr Hankin has spent a lot of time in relation to around 19 December and I want to try and get very clear on the record your position about this. What was the intent of you and your colleagues towards the taking of industrial action in the pursuit of this industrial objective?---We've always intended basically since the bargaining period to take industrial action to push our cause. The only reason we did not take it on 19 December was because we weren't sure or comfortable with whether we would be doing it under protected action.
PN589
And the decision to take industrial action had been taken and the threat of industrial action existed?---Yes.
PN590
I've got no further questions, Commissioner.
PN591
THE COMMISSIONER: All right. The only question I've got goes to nothing with what is being raised but you mentioned early in the peace as you were giving your evidence that, I think, all bar six of the 39 is it, that is involved in the - - -
**** JOHN DAWKINS XXN MR HANKIN
PN592
THE WITNESS: 40 of us, sir.
PN593
THE COMMISSIONER: 40, okay.
PN594
THE WITNESS: And there is six that didn't sign on.
PN595
THE COMMISSIONER: Are AMWU members, do I take that to be the Amalgamated Metal Workers Union?---Correct.
PN596
Were they ever approached in terms of representation in the matter?---Well, I discussed it with them and I'd be keeping them appraised of the whole thing. But because it start - we - I guess you have to go back a little bit to explain that a lot of them were discussing certified agreement negotiations. We don't invite the AMWU primarily because during those discussions between management and us or the employees' representatives, that sometimes the nature of the beast, classified matters - - -
PN597
The security situation?---Yes. But we don't normally invite the AMWU.
PN598
Accept that?---This is a similar case and we felt that - so we don't normally - it is not a normal practice in invite them. And this has become an offshoot of that - of those certified agreement negotiations. They weren't real keen on getting involved because of the number of AMWU members and the non-members so we decided to take this action as, I don't know, believe it - - -
PN599
As a group of employees?---As a group of people and pay for it ourselves because AMWU members pay for membership and we felt pretty strongly that the AMWU membership shouldn't fund that legal battle for everybody that wasn't necessarily union members either.
**** JOHN DAWKINS XXN MR HANKIN
PN600
Yes. No, that is fine. I wondered whether it was another organisation altogether?---No. They're the signatories - - -
PN601
Because again I'm not real sure what you people do either so it really had me a little bit puzzled that there might have been some other organisation with which you hadn't involved them. But that is fine. It has no bearing in terms of these proceedings. It had me intrigued and I had to ask you while you were there. I've got no further questions, you're excused.
PN602
THE COMMISSIONER: You have another witness, Mr Houlihan?
PN603
MR HOULIHAN: No, Commissioner. We're not going to call the second witness.
PN604
THE COMMISSIONER: All right. Thank you. Is there any other evidence that you wanted to put before the Commission other than final submissions?
PN605
MR HOULIHAN: I don't think - - -
PN606
MR HANKIN: Can I just have a couple of moments with Mr Montgomery to see whether or not we feel there is any need to - - -
PN607
THE COMMISSIONER: Yes, sure. It mightn't do any harm to have just a break for five minutes. We will adjourn on that basis.
SHORT ADJOURNMENT [2.29pm]
RESUMED [2.37pm]
THE COMMISSIONER: Yes, Mr Hankin.
PN608
MR HANKIN: Thank you for that opportunity to speak to my client, sir. Having discussed the matter with my client we have decided not to call any evidence of our own; we fell there is nothing to rebut.
PN609
THE COMMISSIONER: All right. Thank you. Mr Houlihan.
PN610
MR HOULIHAN: Thank you, Commissioner. Commissioner, this morning we spent a great deal of effort seeking to show the Commission that this is an unusual situation; here is a group of Australian employees, with serious jobs, which they take seriously, working in an extraordinary situation in a very dangerous time. We sought, through the Exhibits H4 and H5 to demonstrate what we can know of the work that is done at Pine Gap and what the elected leadership of this country and of the USA and of the UK say is the world circumstance at the moment.
PN611
Now, Commissioner, you can say that - what we are doing with this application is seeking to take advantage of the given world situation. We can equally say that we have here a group of employees who, on the evidence that we've heard this afternoon from Mr Dawkins, haven't taken industrial action before, that thought very long and hard about this. This is an issue, this pay parity issue is a very real and serious issue as far as our clients, these people, are concerned.
PN612
The evidence is that following the last hearing before the Commission, and following the discussions that took place between the company and the employees after that hearing, and following the failure of those discussions to break that impasse, that the employees then settled on a course of action. And that course of action was to initiate a bargaining period, and as Mr Dawkins testified, they wanted to make sure it was done properly. Mr Hankin kindly alerted us to the fact that there was an argument that it hadn't been completely done properly, but the gut issue here is that these people took the issue seriously; they decided to take the industrial action. So the industrial action was threatening. They initiated the bargaining period; they gave the 72 hours notice and they took the industrial action.
PN613
Now patently, from the evidence, the industrial action that was taken wasn't a cake walk. There was, from the evidence put forward this afternoon, a sense of intimidation, a sense of real concern among employees about what they were doing. About the risks involved. We had the evidence from Mr Dawkins where he said that they were concerned about the possibilities of their action. And they are very much concerned about that.
PN614
The evidence from - the statements from the Bar table to the company have sought to pooh-pooh the concern of the risk that exists. We can't deal seriously with it because we are simply precluded from dealing seriously; from getting to what people are actually doing. And, of course, it is not a criminal case, it's a balance of probabilities, it's dealing with the circumstantial evidence that the Commission can deal with.
PN615
Now, I put to the Commission this morning and I want to do it again; I want to do it very seriously, Commissioner, and that is that the Act provides these two mechanisms; the 89A(7) mechanism and this mechanism, to break the sort of log jam that exists. This is not - and we cited at length from his Honour, the president, in the Coal v Allied case; we cited at length because that's the case - that's what we have got to do. That's what we have got to overcome.
PN616
But this is not a coal mine, this is not one of hundreds of coal mines in Australia, albeit a big one; this is, to the best of our knowledge, the only sort of operation like this in the country. To the best of our knowledge it is one of very few in the world. Our people don't have, from a responsibility point of view - while his Honour, Boulton J, could find that the actions of those coal miners posed a threat to the economic wellbeing of the Hunter Valley and to New South Wales.
PN617
The action that our people have taken and can take is a different sort of threat; it is a qualitatively different sort of threat. It is not a threat about the economic welfare of Australia, when it is going to have an impact on Alice Springs or something like that, but it is not like Coal and Allied shutting down the Hunter Valley; it's not like that. But what it is - what it is, it is a threat that we have to take as going to the national security of this country, going to the defence of this country.
PN618
That's the only reasonable conclusion that you and I and Mr Hankin can take from what we know about Pine Gap. That's the only reasonable conclusion we can take. It's not the out of town office of Centrebet. It's not something like that. This is something that, on the evidence that's available, or what we know of, is very very serious stuff. Now, we've put before you what the executive government of this country thinks about where we are in world terms, what the USA think, what Britain thinks.
PN619
We can all argue about that and we can take whatever issue we like with that - thank God - but that doesn't alter what's happening here, and it doesn't alter the rights that these people should be able to call on. You see, the Act allows you, so long as we can put the circumstances before you, the Act allows you to cancel this bargaining period and go down the course that we have asked.
PN620
The Act allows to go the other way too, 89A(7), but obviously, we would need to cancel the bargaining period first. Now, we thought about that, just as our people were anxious not to expose themselves initially to unprotected action, they remained concerned not to be exposed now. If, however, the Commission was minded to go down that path we would cancel the bargaining period voluntarily. But that's simply by the by.
PN621
Our position is that we have got people seeking to pursue a legitimate industrial through the legitimate established channels of doing that, using the mechanisms that are available under the terms laid down in the Act; everything has been done absolutely according to Hoyle, and what we're saying is we can't get these people, we can't get them to the first base that's necessary to enable a negotiated settlement to go on.
PN622
Now, you can say, well, you don't really know that; you know, you haven't sort of tried and all the rest of it, or, you're not sure what's going to happen. All we can say to you, Commissioner, is this, is that we have already done one of these - we've done one of these. Like you were saying, you've been around - done a few laps - we've done a lap of this. We know what was necessary in that case. And we know that it took about a fortnight from the time we had the core, the base information, it took about a fortnight to fix. But we couldn't do it until we could get that base figure.
PN623
Our friends are saying, no, privacy; it's the dollar exchange rate; it's the dot.com; it's - it's whatever you like. It's Uncle Tom cobbler. But no, they won't put that figure on the table. That's the issue. They won't put the figure on the table, and until they put the figure on the table, all the talk about negotiation is nonsense; it's a sham. Now, they haven't moved from where they were in October; they haven't moved. Now, you can say, well, that's stiff, your task is to push them and pull them and haul them and get them up there. Our problem is that this is a different set of circumstances. It's not Coal v Allied. It's not a bloody coal mine. This is something entirely different than that and very very serious, and in the context of the world at the moment, particularly so. We just can't do that.
PN624
The evidence is there that there is industrial action, that there has been industrial action and that the intent is that industrial action will continue. That's what the evidence is. It's not contested. It's not disputed. That's the evidence. What we are saying to you is, you have got the opportunity to address a problem that these employees have in pursuing their legitimate grievance.
PN625
They don't want to shut this damn place down. They don't want to do that. Maybe they shut it down and nothing happens at all; Saddam goes skiing in St Moritz, whatever - we don't know, but maybe they shut it down just when something unfortunate or untoward does happen. Maybe that's what happens. The probability is unknowable. It's unknowable. We don't know. For all we know there could be a crap game going on somewhere that decides that all tonight; we don't know. We've got no idea, we've got no way of knowing.
PN626
What we're saying to you is, you've got to address the material that's in front of you, and the material that's in front of you is that there is a dispute. There has been industrial action. It is protected action. There is a bargaining period in notice. There is an intention to continue it. That's what you have got to address, and you've got to look at - what are the risks? What are the chances? Are we fair dinkum? Is there a chance that whatever happens out there is sufficiently serious that we've got to do something about it.
PN627
The evidence - the circumstantial evidence points to the fact that this is serious, a serious place. The evidence says about the disputes. The facts are that people have taken stop-work action. The evidence from Mr Dawkins is they intend to continue. They don't want to do this; they didn't want to start doing it and they don't want to continue doing it. l They want to resolve this legitimate industrial grievance that they've got and get it behind them.
PN628
This application was made to terminate the bargaining period, prior to the industrial action being taken, precisely because of what was put to us that none of our people want to be in this; they don't want to be taking this sort of industrial action; they don't want to be in this. And we submit that the Act makes provision for exactly this sort of situation. There was no mention of timing. My friend is trying to make a mountain out of not even a molehill about 19 December. Well, simply what happened, as the evidence gives you, was that there was concern about the legitimacy or the correctness of the notifications. That's why the action didn't proceed that was scheduled - it was decided upon on that day, and the letter that was written to the Commission was - it didn't matter when it was written; it doesn't matter. It's not germane to any of the issues that are relevant to what you have got to decide.
PN629
What you have got is the application to do this, and what you've got is the fact that the action has been taken and it's intended to go on. There is an issue that you have to decide about** chance, if you like, about possible chance if you like, about possible impact. About all of that. And with great respect that is what Laurie Brereton gave you when you tapped you on the shoulder. That is the task that you've got.
PN630
THE COMMISSIONER: Why am I shivering.
PN631
MR HOULIHAN: Well, Laurie is a very lovely fellow, Commissioner, you would know that and you get nothing for nothing from Mr Brereton.
PN632
THE COMMISSIONER: I'm not going anywhere near that.
PN633
MR HOULIHAN: Okay. Could I say this you have to - you simply have to accept that on the circumstantial evidence before you on the probabilities before you that it is a safer more sensible and careful and cautious task - course to follow is to grant our application and refer this matter to a Full Bench or refer it into a conference before yourself, although I think you can see how far that is going to go. And let's take it from there. Commissioner, we put to you very earnestly that this is a bunch of Australian workers who are seeking to exercise their rights under this Act.
PN634
They're seeking to do it in accordance with the Act. They're seeking to do it cognisant and very much aware of what they do. What they do. And the importance of what they do. And they don't want to put that at jeopardy. Now, we ask you to do what, what as I say you're paid to do, to make that balance between those contending issues. But you see you've got the right to do what we're asking and the need to do it very clear. May it please the Commission.
PN635
THE COMMISSIONER: All right. Just one thing of a technical nature, what I have got formally in front of me is an application pursuant to section 99. But to the extent that it is necessary, I take it you're making a formal application to amend that original application.
PN636
MR HOULIHAN: Exactly that, Commissioner. I've got to - - -
PN637
THE COMMISSIONER: To an application under 170MW.
PN638
MR HOULIHAN: I think also, Commissioner, from memory that there is no - there has been no actual filing of a dispute.
PN639
THE COMMISSIONER: And I think that is right.
PN640
MR HOULIHAN: Yes. In this matter which probably needs to be done.
PN641
THE COMMISSIONER: Yes.
PN642
MR HOULIHAN: And the application, you will note, in point (d) this matter relates to the industrial dispute C - well, it is an industrial dispute. C number 202 - 2002/3607.
PN643
THE COMMISSIONER: Yes. I mean, formally I will address that but I thought it was important that we at least get on the record that this is an amending of an original application to deal with your application now under section 170MW.
PN644
MR HOULIHAN: That is precisely what it is, Commissioner. Thank you very much.
PN645
THE COMMISSIONER: Yes. Mr Hankin.
PN646
MR HANKIN: For the record, because my friend doesn't seem to know, the matter number for bargaining period is BP4975 of 2002. The Commission's website actually shows two entries with the same number. One of them being Povey Stirk initiation of bargaining period and the other one referring to employees of Raytheon.
PN647
THE COMMISSIONER: Okay. But at any rate it is BP2002/4975?
PN648
MR HANKIN: Yes.
PN649
THE COMMISSIONER: Thank you.
PN650
MR HANKIN: Now I don't know if - I infer from your questions there, sir, that you haven't actually been provided with a copy of the notification of the bargaining period.
PN651
THE COMMISSIONER: No, I haven't.
PN652
MR HANKIN: I can lend my copy to your associate if that would be useful.
PN653
MR HOULIHAN: I will make that available. I'm sorry, Commissioner, I was going to do it.
PN654
THE COMMISSIONER: Thank you. I will attach that to the Commission's file. Thank you.
PN655
MR HANKIN: I will address that notification first because I commenced this morning by saying that there is no valid bargaining period initiated. As you will see from the document that has now been provided to you it states that
PN656
Povey Stirk notaries - lawyers and notaries through IR Australia Pty Ltd acting on behalf of John Dawkins, an employee acting on behalf of himself and on behalf of other employees as scheduled, intends to try and reach an agreement,
PN657
etcetera.
PN658
Now, on the face of the document it simply doesn't comply with the requirements of section 170MI. And I take the Commissioner to 170MI. It says that relevantly if an employee acting on his or her own behalf and on behalf of employees wants to negotiate an agreement etcetera that employee can serve a notice. Here we've got a peculiar situation of Povey Stirk, who don't ever appear in the Commission except via documentation, asserting that Povey Stirk through IR Australia, whatever that means, and acting on behalf of Mr Dawkins, intends to try and reach an agreement.
PN659
Now the requirements of the section are fairly specific. And, in my submission, they don't get there. Povey Stirk is not authorised. And it is not as though Povey Stirk put in the notice that Povey Stirk as solicitors for. Because obviously if they asserted that they were acting as solicitors for Mr Dawkins then I'm sure that that would be within the meaning of section 170MI. That Povey Stirk don't even claim that they're acting as solicitors nor do they claim that they're acting for anyone except through IR Australia, whatever that is intended to mean.
PN660
Now, at a fundamental level, in my submission, that means that there is no valid bargaining period. It just isn't there. Now out of the employees as scheduled there are some 40 of them, one of them is Mr Andrew Colin. And Mr Colin is an employee whose has signed - Andrew Colin is an employee who has signed exhibit H1 from the original proceedings in November before you, sir. There is no Andrew Colin as such. There is an Andrew Colin Gee employed by my client, G-e-e but not an Andrew Colin. Now if there is no valid bargaining period then there is not one to terminate.
PN661
Assuming for the moment that there is a valid bargaining period despite that problem with section 170MI, at the date that the application was made to terminate the bargaining period, that is 19 December, that is the letter addressed to yourself, the bargaining period hadn't commenced. That is because the bargaining period notice hadn't been served on all of the employees who were negotiating parties as defined under the Act. You will note, sir, that the bargaining period notice under paragraph (b) says that, paragraph (b):
PN662
All employees whose employment would in the absence of a certified agreement to the contrary be covered by the Space Tracking Industry Award.
PN663
So although it was served on my client, and presumably on the employees who have authorised IR Australia, it wasn't served on the outstanding seven employees whose employment is also cover. Now that didn't take place until after my letter to you which is before the Commission as R1. I think, from memory, it took place about seven days after the date of R1. And pursuant to the Act the bargaining period didn't commence until seven days after the service of that notice on those employees. So that in itself raises a rather curious and peculiar issue. Namely, that prior to the commencement of the bargaining period there is a request for it to be terminated. Now, I suspect that on balance that is probably permitted by the Act, although it is certainly rather peculiar and strange. But moving on, the application as presented this morning is for a termination of the bargaining period pursuant to section 170MW(3), that is the threat to the economy or health or safety. In my submission the letter dated 19 December 2002 from Povey Stirk by its very terms expressly refers to section 170MW(2) rather than (3).
PN664
That is the allegation of bad faith or not negotiating any good faith. There is nothing else to be read in there. And, in my submission, despite the submissions to the contrary that have been made by Mr Houlihan, it was never the intent to go under section 170MW(3). That was adopted as a desperate last resort once it became clear that (1) it could not be alleged, in all honesty, that my client wasn't negotiating in good faith and, (2) that the industrial action, but given that it was being taken by my friend's clients, meant that my client was the one really with the entitlement to apply to terminate the bargaining period rather than them.
PN665
Taking the application as presented this morning at face value, have we got anything approaching satisfaction of the requirements of section 170MW(3)? And circumstance for the purposes of such section (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening. Not with in the future, is currently threatening to endanger the life, the personal safety or health or the welfare of the population or a part of it or to cause significant damage to the Australian economy or an important part of it.
PN666
It is to be inferred that if anyone's life, health, safety is currently being threatened, there would have been evidence presented to you about that. There has been nothing. The only thing that has been advanced as being, as I put this in inverted commas, "evidence", are exhibits H3, H4 and H5. Let's just have a brief look at them. H3 is the treaty which establishes Pine Gap. Quite clearly if the Australian government of whatever stripe enters into a treaty, the government does so because it feels that it is in the interests of the people of this country.
PN667
I guess one can say that. More than that, I don't think one can say. This appears to be a copy of the treaty which established joint defence facility at Pine Gap. Obviously Australian governments past and present thought it was a good idea to establish the facility. More than that one can't ..... from the treaty. Exhibit H4 is an extract from Raytheon company's website. This is the whole of Raytheon company not just Raytheon's Australian operations. It tells us some brief things about what Raytheon does. Well, I'm sorry, but unlike my friend, I can't see any relevance. My response to it is so what. H5 is a printed version of the most recent State of the Union address by President George W Bush. Well, the President's address is the President's address. I haven't read it. I've read references to it in the media. I understand that the President referred to various aspects of US domestic and external affairs including Iraq. How on earth that has got anything to do with these proceedings is beyond me. As evidence, none of these exhibits get even within a bull's roar of being relevant let alone forming a basis on which the Commission could form a view that the industrial action that has taken place in the past, and which might be likely to take place in the future, is currently endangering anything.
PN668
The only oral evidence is that from Mr Dawkins. Mr Dawkins quite properly said that it was never his intention, and I think one can infer it wasn't the intention of his colleagues, to ever do anything that would threaten or endanger anyone. I would have been surprised if he had said the opposite. Mr Dawkins can see that Raytheon was able to adequately cope with the workload by scheduling extra staffing. Given that that evidence there is nothing to rebut in terms of section 170MW(3). There is not the slightest shred of evidence at all to indicate that the industrial action is having any impact whatsoever on Raytheon let alone causing danger to any person or to the economy or to a part of it.
PN669
In my submission the application to terminate the bargaining period is flimsy. It is completely lacking in any reasonable cause and in due course I will have further to say about that after your decision. But I can't let this opportunity go by without responding to the fairly over the top submissions from Mr Houlihan. He has asserted that my client is obdurate, my word not his, he has asserted that it is all unfair because his clients believe that they are being paid less than their American colleagues.
PN670
But in one of the pieces of evidence from Mr Dawkins which I expressly said I thought was irrelevant, we did get some testimony which may be of assistance to the Commission is that if it is ever required to deal with the merits. Mr Dawkins' evidence was to the effect of, I believe, approximately 10 years ago, I stand ready to be corrected there, Mr Dawkins, he thought that the salaries of Australian and American colleagues were approximately equal. He believes that a disparity has developed over the last 12 years or so.
PN671
When asked what he thought was the reason, the cause of the disparity, he said it was two factors. The dot.com bubble that Mr Montgomery referred to during the conference and also the drop in the exchange rate between the Aussie dollar versus the US dollar. If that is the case, and that is what Mr Dawkins has said he thinks is the case, then there has not been any depreciation in the spending power of the Australian employees versus their American colleagues.
PN672
It is just that because of the factors referred to by Mr Dawkins himself, the spending power of the American colleagues has gone up. It is not that they have been ripped off at all. And, indeed, what has gone down in terms of dollar exchange, Aussie dollar, US dollar could well go up. And when we were before you back in November, I think, the exchange rate was about 55/56 US cents to the Aussie dollar. It is not hovering about 58/59. I don't claim to be a seer or have a crystal ball but I do know that in my life time the exchange rate has varied from about 110 US cents to the Aussie dollar down to, I reckon we got down to about 47 at one stage.
PN673
THE COMMISSIONER: There was a bit of intervention by government, I think, at one stage that obviously impacted pretty significantly on that.
PN674
MR HANKIN: Yes, there could be.
PN675
THE COMMISSIONER: I'm telling you it did. We were devalued deliberately.
PN676
MR HANKIN: For whatever reasons they might intervene again to bump it up or bear it down. But just on merit these are not issues that call for intervention by the Commissioner.
PN677
THE COMMISSIONER: Mr Houlihan.
PN678
MR HOULIHAN: I won't complain at all, Commissioner.
PN679
THE COMMISSIONER: Guarantee it.
PN680
MR HOULIHAN: I can slow it down. Commissioner, let me turn to this issue of the threat to life and property that my friend some issue about. Commissioner, again, what is required is to establish such a thing exists or existed. What we say - you heard what we say. We say that the fact that the industrial action is ongoing, it threatened to continue, what is done out there, whatever it is, is the - that is the issue. Now let me turn to his word not mine "obdurate", I think it is an excellent word. And I can congratulate Mr Hankin on it. I think it is - - -
PN681
MR HANKIN: Taught you something, have I, Paul?
PN682
MR HOULIHAN: You have. And I've got to say - - -
PN683
MR HANKIN: You can write it in your book.
PN684
MR HOULIHAN: I'm open to learning and I think it is an excellent word and I think it aptly and accurately and adequately describes the attitude of Mr Hankin's client.
PN685
MR HANKIN: And yours?
PN686
MR HOULIHAN: Obdurate is precisely the word. It is simply as we've tried and tried and tried to say here today, it is impossible to negotiate from a position where you haven't got a base to go from. We can't do that. I want to just go back to this issue Mr Hankin raised about the industrial action not causing any problem at Raytheon. There is a problem about that. And that is that I can stand here and with the validity that has to be attached to what Mr Hankin has put to you, say, that it created enormous problems out there.
PN687
He has got no idea of what happened out there, of the difficulties that occurred out there. Neither have we. Now if he wants to contest the evidence from Mr Dawkins, he better put someone in the box who can testify as to what happened because no evidence to support his assertion that there was no problem. What the evidence is is that people were rostered - additional people were brought in on roster and the evidence - the only evidence is that they could probably keep that up for about a week.
PN688
Now that is the evidence. That is what the evidence is. The question is do we form our industrial strategy in pursuit of our legitimate claim around the notion that we just stop them for seven days and hope to God that that is not a particularly bad seven days. Or do we come to this Commission and ask you to exercise the powers and authorities that you've got to put a second way in there. And that is what we seek to do. May it please the Commission.
PN689
THE COMMISSIONER: All right. Thank you. As I indicated earlier I intend to reserve my decision in relation to this matter. There are some aspects of the transcript that I want to have a look at again to be sure that I'm across all of the issues that have been put in front of me. But I assure you I will get a decision out as expeditiously as possible.
PN690
MR HOULIHAN: Just again, sir, I think the only thing that you want from us we've now given you. Is that right?
PN691
THE COMMISSIONER: Yes. That is right.
PN692
MR HOULIHAN: That is fine.
PN693
THE COMMISSIONER: Just the bargaining period.
PN694
MR HOULIHAN: Yes, that is right. Yes, that is fine.
PN695
THE COMMISSIONER: Commission stands adjourned.
ADJOURNED INDEFINITELY [3.14pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #R1 LETTER FROM RESPONDENT DATED 8 JANUARY 2003 PN90
EXHIBIT #H2 EMAIL FROM CRAW PN150
EXHIBIT #H3 AGREEMENT BETWEEN COMMONWEALTH OF AUSTRALIA AND THE UNITED STATES OF AMERICA PN171
EXHIBIT #H4 PAGE 4 OF AGREEMENT BETWEEN AUSTRALIA AND USA PN183
EXHIBIT #H5 STATEMENTS FROM BRITISH AND AUSTRALIAN GOVERNMENTS PN207
JOHN DAWKINS, AFFIRMED PN378
CROSS-EXAMINATION BY MR HANKIN PN449
RE-EXAMINATION BY MR HOULIHAN PN574
WITNESS WITHDREW PN602
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