C2003/1276, Transcript of Proceedings [2003] AIRCTrans 861 (18 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2003/1276
C2003/1287

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Hysfine Pty Ltd for orders in respect to
industrial action at various sites involving
commercial and domestic painting work

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Havecoat Contractors Pty Ltd for orders in
respect to industrial action at various sites -
negotiation of agreement

BRISBANE

2.17 PM, THURSDAY, 27 FEBRUARY 2003

PN1

THE COMMISSIONER: Thank you. I'll take appearances, please.

PN2

MR A. HERBERT: Good afternoon, Commissioner.

PN3

THE COMMISSIONER: I apologise for the lateness this afternoon. We've had dominoing matters today.

PN4

MR HERBERT: A very full house, from what we see in the newspapers. Commissioner, I seek leave to appear as counsel on behalf of the applicants, each of the applicants, in both of the matters. There's one applicant, Havecoat, in one matter and a group of applicants in the other.

PN5

THE COMMISSIONER: Thank you, Mr Herbert.

PN6

MR J. NOLAN: May it please the Commission, my name is Nolan. I seek leave to appear as counsel for the respondent, the union.

PN7

THE COMMISSIONER: Thank you, Mr Nolan. I take it there's no objection to that, then?

PN8

MR HERBERT: He hardly ever objects to me.

PN9

THE COMMISSIONER: All right. Well, I will grant leave on the basis that you're briefed to appear.

PN10

MR NOLAN: Thank you.

PN11

MR HERBERT: Commissioner, there should be before the Commission by way of written material two applications, one being on behalf of six employers, the first of which is Hysfine Pty Ltd, and - - -

PN12

THE COMMISSIONER: That's 1276, yes.

PN13

MR HERBERT: Yes. And another further application in identical terms other than the applicant is a single entity, Havecoat Contractors Pty Ltd.

PN14

THE COMMISSIONER: So you're seeking to join those two matters?

PN15

MR HERBERT: Have them heard together or joined, as the case may be. The circumstances relating to all of the employers will be said to be identical.

PN16

THE COMMISSIONER: All right. Well, they'll share a common transcript, then. You have no objection to - - -

PN17

MR NOLAN: No objection to that.

PN18

THE COMMISSIONER: All right.

PN19

MR HERBERT: Commissioner, you should also have an affidavit of Lindsay Olsson of 26 February 2003 with a number of annexures.

PN20

THE COMMISSIONER: I do.

PN21

MR HERBERT: And a further affidavit of Mr Olsson supplementing some of that material relating to questions of loss and damage which go to questions of discretion or will be relied upon in relation to the question of discretion to grant a 127 order. That's the affidavit of Mr Olsson which was sworn 27 February. That consists of 11 paragraphs.

PN22

THE COMMISSIONER: Yes, I do.

PN23

MR HERBERT: And - - -

PN24

THE COMMISSIONER: It's got a couple of spelling errors in it, I think.

PN25

MR HERBERT: That may well be.

PN26

THE COMMISSIONER: One is "the paining industry." Should I take that as being read the - - -

PN27

MR HERBERT: "The painting industry?"

PN28

THE COMMISSIONER: Yes.

PN29

MR HERBERT: That may well be a Freudian slip.

PN30

THE COMMISSIONER: I took it as read this afternoon, I should say, Mr Herbert.

PN31

MR HERBERT: Thank you.

PN32

THE COMMISSIONER: No disrespect to either party.

PN33

MR HERBERT: Thank you, Commissioner. I'd seek to tender a further affidavit of Mr Olsson which is dated today's date, 27 February, and only goes to the question of the adoption of the material that I've already mentioned as being applicable in the case of Havecoat Contractors, which application obviously was filed second in time, and I don't think that's before the Commission and so I'd seek to tender a copy of that. I've provided my friend with a copy, but it's really only for formal purposes of adopting the evidence in one so as to be relevant to the other.

PN34

THE COMMISSIONER: We'll mark that first affidavit as exhibit 1.

EXHIBIT #1 AFFIDAVIT OF LINDSAY OLSSON DATED 26/02/2003

PN35

MR NOLAN: Could I just say about those, Commissioner, that the last two affidavits - that's to say the two dated 27 February - were only handed to me by Mr Herbert a few moments before we commenced, so I'd like to at least make it clear that we reserve our rights in relation to those. I've had no opportunity at all of course to get instructions on those. If the affidavits are to be marked they might be marked on that understanding. Can I say that we'd certainly at an appropriate time which to cross-examine Mr Olsson on the first of the affidavits and then have an opportunity to take instructions if they're necessary - if it's necessary to cross-examine him about that second affidavit. But perhaps I can say some more about that shortly because I have an application to make when Mr Herbert is finished with the formalities about precisely the way in which the matter ought to be dealt with.

PN36

THE COMMISSIONER: Mr Nolan, the first affidavit is in relation to the multiple employers, and the second affidavit, as I understand it, Mr Herbert, is in relation to the similar fact issues adopting it on behalf of Havecoat. Is that correct?

PN37

MR NOLAN: That's the third affidavit.

PN38

MR HERBERT: The third one I handed up simply adopts the material across - - -

PN39

THE COMMISSIONER: That's the third one. And the other one is - the second one, then, is in relation to the issue of damages.

PN40

MR HERBERT: Yes.

PN41

THE COMMISSIONER: That's the order.

PN42

MR HERBERT: Yes.

PN43

THE COMMISSIONER: All right. And the one that you specifically take issue with, then, is the second one, Mr Nolan, that was just recently handed to you?

PN44

MR NOLAN: Yes.

PN45

THE COMMISSIONER: So so far we've only marked the first one as exhibit 1. Well, Mr Herbert, did you have any other issues at this stage?

PN46

MR HERBERT: No, other than to say if I understand that my friend is to ask to cross-examine Mr Olsson, I may, subject to the cross-examination and the matters raised in that cross-examination, seek to call some short oral evidence from Steven John Weber, who is a director of one of the applicants, and who was present at the meeting which is referred to in the first affidavit of Mr Olsson. That is the one filed with the application. He refers to a meeting in paragraph 27 and relies upon information from Mr Weber as to what transpired at that meeting.

PN47

Mr Weber is here and available to give some very short oral first hand evidence as to certain short events that occurred at that meeting in the event that there is some issue taken about that. So the material was originally put forward in paragraph 27 as being on information and belief, but we've taken the precaution of bringing Mr Weber and we'll be asking him to give some short oral evidence on that. That short oral evidence together with the three affidavits to which I have referred is at this stage the evidence that is to be relied upon by the applicants.

PN48

THE COMMISSIONER: I'll hear you on your issues, Mr Nolan.

PN49

MR NOLAN: Yes. Commissioner, we have a number of difficulties with the matter being heard as Mr Herbert would apparently intend, and they stem principally from the fact that what you have before you in the form of a Section 127 application is really, in our submission, a disguised 170MW application and indeed some time in the very recent past - I'm not quite sure exactly when - my instructors received a letter from Mr Herbert's instructing solicitors which included an application under 170MW, namely, an application to suspend or terminate the bargaining period on grounds that are identical to the grounds that are set out in the Section 127 application.

PN50

Now, it would seem to us from reading the 127 application itself that if these issues are to be agitated at all they are more appropriately to be agitated in the guise of a Section 170MW application, which has apparently at least been drafted, but we're not certain whether or not that's been filed with the Commission. It certainly hasn't been the case that we've received a stamped filed copy from the Commission. I'm sorry, we do have a stamped copy with the stamp of the Registry on it, but there is no indication other than that that there's any direction as to service or any hearing in that matter.

PN51

So it really strikes us as something akin to an abuse of process for there to be two applications directed to identical issues on foot, one under Section 127 and one under Section 170MW(1), when the substance of both applications is absolutely identical and where the main allegation appears to be directed to whether or not the CFMEU was genuinely trying to reach agreement.

PN52

Now, you'll be well familiar with these provisions and you'll be well familiar, therefore, with the provision of Section 170MW(2)(b), which is a ground upon which the Commission can move to suspend or terminate the bargaining period that's been instituted, and that is where a circumstance arises where a negotiating party before or during the bargaining period has organised or taken or is organising or taking industrial action to support or advance the claim in respect of the proposed agreement and that party is not genuinely trying to reach an agreement with the other negotiating parties. That's a discrete ground for the termination of a bargaining period.

PN53

So the question of protected action is not raised at all or brought into question. Rather it moves on the basis that the state of protected action is assumed and that protection is - the clothing of that protection is in effect ripped from the negotiating party on the grounds that are set out in 170MW in this case (2). And when one reads the material and without making any concession about the veracity of the material, one sees that it's all directed to exactly that point. So we would say that it's been quite misconceived for an application under Section 127 to be made when the application should have been made under Section 170MW(2)(b) and more appropriately dealt with under that section, and that having regard to the fact that Section 170MW provides a discrete remedy under the Act if the case is made out that an application under that section ought to take precedence over any Section 127 application and indeed it can be said that the 127 application in these circumstances is itself illegitimate and I characterise it as almost amounting to an abuse of process.

PN54

Now, I say that not just because the statute itself, in our submission, would compel that conclusion, but that the Full Bench of this Commission has itself said in the Coal and Allied case, the precise page of which I can't refer you to at the moment but I think Mr Herbert has a copy of the decision and no doubt will address you on it, but it is said that whereas the Commission may be entitled to make a Section 127 order even if the action is protected action, that the Full Bench has said that if the intervention of the Commission is sought in relation to industrial action it's likely to be considered to be protected action, the appropriate course would normally be for an interested negotiating party to apply under Section 170MW.

PN55

And that is really the approach which is being regarded as authoritative in our submission by the Commission since the decision in Coal and Allied, but quite apart from the decision in Coal and Allied, the way the statute is structured it would seem to sensibly suggest that is the proper course that ought to be adopted.

PN56

Now, there are other discretionary reasons, of course, why that's to be preferred and in this particular case there's a very good one in that the evidence will show you that the notice of intention to take protected action that flagged that the protected action would commence yesterday was sent to the employers who Mr Herbert appears for on 18 February yet no application, not even the section 127 application appeared to have been filed in the Commission until, I think, 26 February, a full week after the date on which the intention to take industrial action was notified and indeed a day that coincided with the first day of the protected action.

PN57

Now, ordinarily where a section 127 application is taken it's taken in circumstances of urgency where there is threatened, pending or probable industrial action identified by the offended party and where the Commission is enjoined to take urgent steps to see to it that the application is dealt with urgently, the rationale being that if indeed the action that's being taken is unprotected action the Commission can intervene in a timely manner and see that it's nipped in the bud having regard to the fact that the party purporting to take protected action has to give three days notice of the intention so to take protected action.

PN58

And if there is a defect with the protected action notice, for example, that's something that can be looked at by the Commission. But in any event the dictates of urgency are built into section 127 but they do suggest that a party will, in a sense, approach the Commission with clean hands. In other words when it first becomes aware of the notice it will go straight to the Commission and say, "Look, we've identified a problem here with this notice or with the action and we want the Commission to exercise its discretion under 127 to nip this in the bud".

PN59

That's an entirely different situation to the one that you are confronted with here where the employers appear to have sat on their hands for fully a week and then filed a section 127 application on the very day that the protected action started in circumstances where the whole of the section 127 application is really simply a rehearsal of what is more appropriate and properly made or to be made under section 170MW and which now appears to have been made under section 170MW by the employers, albeit perhaps belatedly.

PN60

So all of those facts and circumstances and the structure of the section itself, we would say, conspire to suggest that really this matter ought to be dealt with in an orderly way but take seriously the issue of protected action and take seriously the rights of the respective parties, particularly under section 170MW. This should not be used as some sort of short-cut exercise to avoid the strictures of section 170MW and get to go quickly via section 127.

PN61

We say that that amounts to an abuse of the processes of the Commission and that if there is a case to be made under section 170MW then it's a case that ought properly be made and should be made in circumstances allowing my client to have a proper opportunity to meet the allegations that have been made against it because if this matter goes on today we're in a position to cross-examine Mr Olsson.

PN62

THE COMMISSIONER: You are in a position, you say?

PN63

MR NOLAN: We're in a position to cross-examine Mr Olsson but necessarily that's the result of taking instructions very much on the run. It's hardly a satisfactory position so far as my client is concerned. It puts us at a significant disadvantage in circumstances where if the employers are really serious about their claims they could have filed their section 170MW application on 18 February. You see, nothing has changed on that score between 18 February and today. If they were serious about there being no genuine attempt to negotiate, it was a proposition that could have been advanced just as seriously on 18 February as it is today.

PN64

And so we've effectively been - well, it's not too much of a rhetorical flight to say that we've been ambushed by this. We're suddenly put in here very much on the back foot procedurally to try to address material that we've come into possession of only, I think, late last night, that I've certainly only had an opportunity to consider, in fact, on the plane on the way up from Sydney at lunch-time and get some hurried instructions about.

PN65

Now, that's hardly consistent with the ideal requirements of procedural fairness being applied to my client, and unless there is some very good explanation why this application wasn't made back on the 18th when this notice was received that rather calls into question the propriety of dealing with this as an urgent matter under section 127 when common sense and some regard to the statutory provisions and my client's rights would suggest that it ought to be dealt with in an orderly way that gives us an opportunity to call evidence and prepare affidavit material in reply and get proper instructions on the employer's material and so on.

PN66

Now, none of that is to suggest that this should take a long, long time. It's only to suggest that we should be given a proper opportunity to meet the case that's brought against us and if there is to be a case under section 170MW, well, that ought to be the subject of procedural directions and that's the case that ought to be met, not an off broadway rehearsal via section 127 to wait for the main event under section 170MW once the employers get a bit of a rating about how they are going under 127.

PN67

That's not the way the Commission should, with respect, conduct an investigation into an industrial dispute like this. It's something that can be dealt with relatively speedily but at the same time consistent with providing my client the rights that it is entitled to enjoy under the Act, particularly since it's doing no more than taking protected action to which it's entitled. And, of course, that has a very real bearing on the complaint that's made about the alleged damage to the industry because the alleged damage to the industry can only have significance under section 170MW and indeed under section 170MW - I've just forgotten the sub-section, but that sub-section that talks about damage to the economy or part of the economy that permits the Commission to entertain a complaint about economic damage sustained by an employer in the course of an industrial dispute.

PN68

THE COMMISSIONER: Well, Mr Nolan, so Mr Herbert can respond fully, what are you suggesting in terms of timeframe?

PN69

MR NOLAN: Well, what I'm suggesting should happen is that we should have some - - -

PN70

THE COMMISSIONER: I'm not conceding to that, Mr Herbert; I'm just wanting to get the information.

PN71

MR NOLAN: Well, what I would suggest is that the parties should have some discussions about when it would be appropriate and fair for us to put on material in reply. The employer should be obliged to nail their colours to the mast, whether they are approaching the Commission under 127 or 170MW, and if they have got any additional material it should be put on in affidavit form, not called from somebody in the witness box on the run. And we can respond in a fairly timely fashion, I would have thought, and I can see no reason why the matter can't be dealt with some time next week subject to everyone's availability. But that gives us an opportunity to draw breath, consider what the case is against us and meet it fairly and squarely.

PN72

THE COMMISSIONER: And are you making any suggestions in relation to the industrial action that's occurring in the meantime?

PN73

MR NOLAN: Not at all, because we're entitled to take that industrial action, we say, under the Act, and that's, we say, not a consideration unless and until the legitimacy of the industrial action can be somehow or other called into question. And that really, in our submission, must be called into question under section 170MW because there's no killer point under 127 here.

PN74

THE COMMISSIONER: What do you say, though, about the Commission's obligation to deal with a 127 application that's now before me?

PN75

MR NOLAN: Well, the Commission's obligation stops short of interfering in the proper course of protected action. It will only be if there is some supervening event that's quite unusual that the presumption that a party is entitled to take protected action would be displaced, you see. And we've said it's all very well - - -

PN76

THE COMMISSIONER: I suppose it was more of a procedural question, because that would take an assessment of the merit, wouldn't it?

PN77

MR NOLAN: Yes.

PN78

THE COMMISSIONER: To make that - - -

PN79

MR NOLAN: Well, you would be in a position to deal with the matter quickly. As I said the employers had the chance fully a week before - fully a week before the industrial action commenced to get this thing cracking. They could have done it by letter to the Commission and they didn't do it. What they have done is they have waited until the last minute so that they can effectively corral us when we've already embarked upon the protected action of which they had more than three days notice. They had fully a week's notice.

PN80

That's a very powerful discretionary factor to suggest that, you know, their plea for urgency should be treated really with a grain of salt. And so we're entitled to take our protected action. The protected action is presumptively protected unless and until there is a proper authoritative determination upon that under section 170MW, because all the material by the employers goes to the section 170MW(2)(b) ground. That's the matter if they - if the employers want to proceed with it it ought to be dealt with and it ought to be dealt with properly giving my client an opportunity to meet the case against it fairly and squarely.

PN81

THE COMMISSIONER: So you're suggesting that the 170MW, wherever that may be, be heard first?

PN82

MR NOLAN: That's right.

PN83

THE COMMISSIONER: At some stage early next week.

PN84

MR NOLAN: That's right.

PN85

THE COMMISSIONER: And then if necessary the 127 follow, Mr Nolan?

PN86

MR NOLAN: Well, that's right. If the 170MW resulted in a decision adverse to us then, of course, our protected action would be removed and therefore the scope - the grounds for a section 127 application would be made.

PN87

THE COMMISSIONER: Thank you.

PN88

MR NOLAN: Thank you.

PN89

THE COMMISSIONER: No doubt you have some response, Mr Herbert.

PN90

MR HERBERT: Yes, Commissioner. As usual, my learned friend is full of advice for other parties, but with respect, the submission is, apart from being entirely self-serving to the interests of the union in the sense that it seeks simply to preserve a Commission ordered umbrella over the present industrial action for the next week, which is the duration. Meanwhile, my clients have their workforce standing outside the gate and suffering all sorts of financial penalties while the union cogitates about what it thinks it might do about these applications.

PN91

With respect, Commissioner, there is a section 127 application before the Commission. The Commission is obliged under the section 127 itself to give that application a prompt hearing and the Commission must hear and determine an application for an order under this section as quickly as practicable, not to adopt the leisurely approach of saying, well, we'll postpone this until the applicants see fit to bring on a section 170MW application which has been filed but not asked to be listed - and might get listed. In fact, the Commission - my friend has requested the Commission to act in contravention of section 127(3) to do what he asks that you do.

PN92

That's really an end of the matter, but can I say this: it is wrong as a matter of law to suggest that when the notice of protected industrial action, or the taking of industrial action, was provided to my clients, my clients were at liberty to immediately bring section 127 proceedings. On the face of those notices, the action which was expected to be undertaken could well have been and probably would have been protected industrial action had the union conducted itself properly in accordance with the Act.

PN93

In the subsequent week, the union did not conduct itself in accordance with the Act, that is, the requirements to make that action protected. So when the action was commenced - and it's really something that one doesn't know until one gets to the day, but when the action was actually commenced, it was not protected because the union had not complied with the requirements of section 170MP. Now, for that reason - and that's a matter which, as my learned friend has pointed out in the Coal v Allied case - and I can hand up a copy of that if it pleases the Commission - which is considered the locus classicus on these matters - on section 127 matters.

PN94

As my friend pointed out, if proposed industrial action or industrial action in prospect either is or looks like it very well might be protected action, it's usually appropriate at the Full Bench pointed in that case, for the Commission not to make 127 orders because section 170MP says a 127 order doesn't apply to protected action and there's no point in making an order in prospect in relation to action which subsequently is plainly going to be protected. It's all a complete waste of time. If you - and the Commission should not do that. And that if an employer wants relief or when a party wants relief from prospective action of that kind, they should make application under section 170MW.

PN95

The difficulty with doing that as soon as one receives a notice of protected industrial action or the taking of industrial action is that the grounds under 170MW similarly may not exist and you cannot know that they will exist until the action is actually taken, effectively, because the ground upon which we rely as establishing that the industrial action in this case is not protected action and therefore is not immune from 127 orders is very similar, as my friend points out, to the grounds under section 170MW for terminating a bargaining period. And that is a matter which, for most purposes, certainly under MP and for most purposes under MW, is a matter that can only be determined after the industrial action is commenced.

PN96

THE COMMISSIONER: So you are saying the employers have to hang back and see what in fact occurred between the 18th and the 26th in terms of - - -

PN97

MR HERBERT: Yes.

PN98

THE COMMISSIONER: - - - bargaining.

PN99

MR HERBERT: If the union arrived with a caravan of officials and logs of claims and negotiating documents and said, "Right, we've given you notice of action, but here's our negotiating position; let's talk about it," and then subsequently took industrial action as foreshadowed in their notice, the action would probably be protected and there would be, effectively, no grounds under MW. If the union doesn't do that thing but simply issues a standard form letter out of a word processor and then undertakes action without any intervening conduct attempting to reach an agreement, then the action, when taken, will be unprotected.

PN100

But it's a little bit like a test cricket match. You've really got to wait until the end of the second innings to know what the result is going to be, and in this situation the employer really has to wait in these circumstances before they institute proceedings unless they want to institute proceedings for the purposes of bluffing or as a tactical measure. But that's far from what my clients are interested in doing and they're not interested in spending money simply on proceedings of this kind and clogging up the list of the Commission just as a bluff or a tactical manoeuvre.

PN101

But the grounds upon which we rely did not exist until yesterday morning, in effect, after the action was taken in order to bring the 127 because that's the first time it became clear that section 170MP applied, that is, that action was taken without having attempted to reach an agreement. Prior to that, my client could not have brought a section 127 application, or, if they did, it would have been met with a Coal v Allied defence, "This action looks like it's going to be protected and if it doesn't we'll certainly do something to make it protected in the intervening period," and the 127 applications fails. There's no point in doing it.

PN102

So the submission by my friend that the 127 application should have been brought earlier is just wrong, and, in any event, the mere fact that my client has two remedies under the Act - one is to stop the industrial action now, today, or as soon as the Commission is able to deal with the matter and under the provisions that are expressly stated under the legislation to be dealt with quickly and promptly; and subsequently to bring an application under 127 to deal with the bargaining period under which action can be brought at the leisure of the parties in the sense that evidence needs to be called and people need to consider their positions because there are a wide range of different discretionary considerations under MW.

PN103

The fact that two remedies are available and the applicant seeks the quick remedy in relation to the damaging action now and then the slower remedy in relation to the longer term picture - the legislation plainly contemplates that employers have that right, or negotiating parties have the right, to do those two things. And it's perfectly obvious from the terms of 127(3) and 170MW, which doesn't have an urgency provision in it, that the legislation contemplates that parties will bring action under 127, or will be entitled to bring action which will be heard urgently under 127. If they also wish to terminate the bargaining period so that that action cannot recur in the future, they're entitled to do that as well, but that's obviously a much longer process.

PN104

Now, long processes play into the hands of those who are currently undertaking inappropriate action, if that's what it be. And it's no surprise that the union makes a submission of that kind in these proceedings - that we should go the long way around first and that way we get everything we achieve by way of leverage of unprotected industrial action. But it's not a submission to which the Commission should accede.

PN105

There is a 127 application before the Commission. There is not a 170MW application before the Commission as presently constituted. We ask that the application - and there may well not be, depending on the outcome of these proceedings. We then ask that the Commission deal with the application before it now and that there be no deferral of the matter in the way that my learned friend has submitted should occur. And I'm in a position, as I say, to call both Mr Olsson and Mr Weber this afternoon if they - - -

PN106

THE COMMISSIONER: On that point, Mr Herbert, what do you say about Mr Nolan's submissions that he is at a procedural disadvantage, at least in relation to the second affidavit?

PN107

MR HERBERT: We don't rely on the - that's why I mention when I read, in a technical sense, the affidavit of Mr Olsson dealing with questions of damage this is not 170MW(3) case. It's not even a 170MW case. This is not a case where we need to show serious threat to an important part of the economy, etcetera. All we need to demonstrate for the purpose of the 127 discretion - firstly, the Commission has to be satisfied that the jurisdictional facts exist in relation to 127. Having done so, the Commission retains a residual discretion to give or withhold relief under 127.

PN108

It may be that if the industrial action itself is not causing any harm to anyone and is just merely smoke and mirrors or fire and brimstone, well, then the Commission may exercise its discretion in the circumstances to make no order, or it may be if the damage is so slight and inconsequential to anybody. Again, it's not a matter that the Commission would consider to be so serious that it should exercise its powers under 127 to make that action unlawful.

PN109

We've simply put that material on in a very bare and parsimonious way to demonstrate to the Commission that there are people out there - that my clients are suffering more than nominal damage and they're at more than nominal risk of substantial liquidated damages payments and things of that kind if their work is held up for an extended period. It simply goes to the question as to whether this is a victimless - - -

PN110

THE COMMISSIONER: But you're relying - - -

PN111

MR HERBERT: - - - offence.

PN112

THE COMMISSIONER: - - - on it terms of the discretion?

PN113

MR HERBERT: I'm relying on it in terms of the discretion in the barest sense to show that there are people who are hurting in relation to this matter and could very suffer substantial losses if it goes on much longer. But I don't say in relation to that, and I don't take it to the point that's necessary to be taken for 170MW(3) proceedings, namely to show that the economy is in some sort of dangerous situation. I would have thought that it went almost without saying that if a painting contractor who has a contract to paint structures at Lang Park can't get onto the site, then they're losing money. It's really - it's no more than that other than we've tried to put a few figures on what that means and rather than state it from the bar table in that way.

PN114

But that's the only basis upon which rely on it. It doesn't, with respect, take the matter much further and my learned friend's sufficiently experienced in these matters, I would respectfully suggest, that he could deal with that in running very easily.

PN115

THE COMMISSIONER: Thank you, Mr Nolan.

PN116

MR NOLAN: Yes. Of course, Commissioner, Mr Herbert has failed to really answer the two central issues, and one is that if this really is a disguised section 170MW application it doesn't overcome the fact that if that is the case it rather assumes that the action that's being taken is protected action, because the whole point of section 170MW, of course, is to withdraw the clothing of immunities provided by the Act and so he's in this conundrum that if he's really - if his case under section 127 is really a re-run or a pre-run - a prequel to a 170MW case - all he can succeed in doing is to prove to the Commission that it's protected action and therefore being protected action it's protected from orders under section 127.

PN117

In the ordinary course of events, of course, the Commission does have to give precedence. It has to hear and determine, as he suggests, a 127 application, but that doesn't mean to say that every section 127 application in all circumstances has to be heard and determined fully. It may be heard and determined by the Commission making a procedural decision having regard to all the facts and circumstances to defer the application because it's more appropriately a matter to be dealt with under section 170MW. Alternatively, the Commission may determine the matter by refraining to further hear it for very good reason.

PN118

Alternatively, the Commission may determine the matter by dismissing it and inviting the parties to make a subsequent application if it transpires that the action that's been taken is not protected action and that that exercise, of course, whether or not - I'm sorry, not that it's not protected action, but it ought to be denied the benefit of protected action via a section 170MW(2)(b) application. So Mr Herbert's clients are really trying to have it both ways in the sense of accepting it's protected action but trying to ignore that embarrassing fact to get the procedural advantage that they think that they can achieve by asking you to proceed with a section 127 application urgently. So that's really the first major conundrum that's faced by the applicants in our submission.

PN119

The second one really comes back to this issue of the manner in which this thing has been instituted. Mr Herbert tries to suggest that they were really in this awkward position where they couldn't have put in an application under section 170MW until the action had actually taken place. Well, we take issue with that. If one reads section 170MW(2) one sees there that a circumstance for the purposes of sub-section 1 is that a negotiating party that before, or during, the bargaining period has organised, or taken, or is organising, or taking, industrial action to support, or advance, in respect of the proposed agreement and then one goes on to the fact that the party so concerned is not genuinely trying to reach an agreement with the other negotiating parties.

PN120

That doesn't require the industrial action to have taken place before the application can be made. It contemplates industrial action to be taking place in the future so that if you are organising, or taking, industrial action to support or advance the claims and you haven't genuinely negotiated, that's sufficient to trigger a section 170MW application. And of course that makes good sense when you think about it because if the statute applies in the way that Mr Herbert suggests no employer could ever make an application under section 170MW until they were absolutely confronted with the fact of industrial action taking place.

PN121

The more sensible approach consummate with the clear requirements of section 170MW(2) only requires that industrial action be organised - it's being organised or taken. In other words it contemplates a situation where the notice has come in and where the employer in this case can say, well, one of these provisions is not being complied with. In this case there's been a failure to genuinely try to reach an agreement and an application under section 170MW(2) is therefore made.

PN122

Now, given that that's an undeniable factor under the statute that really adds strength to our submission that these two provisions really do have to be reconciled. And if the case really is, as all the evidence suggests, a failure somehow or other on the part of the union to genuinely negotiate, well, that rather assumes that it is protected action and it rather assumes that the only - or it really then involves the logical acceptance of the proposition - the only course available to the employer is to take 170MW(2) action by way of an application under that section and that itself is, in our submission, a thorough and complete answer to the 127 application, because if there is an allegation about a failure to genuinely try to reach agreement, it's one that necessarily has to be taken under 170MW and one that necessarily presupposes that the action being taken is protected action.

PN123

So, in our submission, Mr Herbert's clients are in that logical conundrum that they just simply can't escape from. Now, just getting back to, again, this discretionary point, Mr Herbert says, oh, well, they were in this awkward position; nothing could be done until the 26th until they saw, you know, the whites of the eyes of the workers in dispute. But even if we accept that perhaps something should have occurred between the 18th and the 26th, and that's not necessary at all on the basis of what I've said to you about section 170MW, their own evidence says, at paragraph 27, of the affidavit that there was a meeting with Mr Ravbar on 20 February.

PN124

It said there that Mr Ravbar refused to provide the union's log of claims. Well, I perhaps don't even have to say that we will have a bit to say about that even when we get to that point, but the fact of the matter was there was a meeting on 20 February 2003, two days after the 18th when they got the notice, and still, what, a week-end and several working days before the commencement of the proposed industrial action and somehow or other the implication is that these employers were such innocents that they weren't in a position on 20 February to stand Mr Ravbar up and say, "Well, hang on a minute, you haven't been fair dinkum about this. What have you got to say for yourself today? And if you don't come up with the goods as far as we're concerned, we're going to make an application to the Commission to nip this industrial action in the bud."

PN125

Nothing of the kind takes place. Rather there's a lame complaint about the fact that Mr Ravbar apparently refused to provide the union's log of claims. Well, that hardly gets the employers anywhere near the distance they need to travel to suggest that that somehow or other disqualifies the union's intended industrial action. So we have this meeting on 20 February, nothing is said, they sit on their hands and then come along, make an application on the 26th and put forward as an excuse for that delay, knowing as they did from the 18th that they had a week's notice that this industrial action was to commence, and put forward as an excuse, "Well, we couldn't make an application under 170MW because the industrial action actually had to start before we could do it."

PN126

Now, as I've just indicated to you, the merest glance at section 170MW(2) absolutely, and utterly, deals with that suggestion, so once again I hark back to the submission I made earlier and that is that they've been the ones that have tried to steal the procedural advantage - it hasn't been the union - they've had a meeting on 20 February that they now seek to cobble up some complaints about with Mr Ravbar, a meeting where they could have fair and square raised this issue with him, and having presumedly reached a conclusion that they didn't get what they wanted from him out of that meeting, there and then they could have made an application under 170MW and it's no good at all to come along here and complain now about not getting what they wanted out of a meeting on 20 February when they were already on notice that the industrial action was going to start a week later.

PN127

And they got more than the three days, they got seven days notice. So the only conclusion in our submission is that it really does amount to a dubious misuse of section 127. The proper approach is for you to stand over the section 127 application, require the employers to move forward if they're inclined to do so with their section 170MW application and make some direction so the thing can be dealt with in an orderly fashion. They're complaining about urgency, but they sat on their hands between the 18th and the 26th before they took a step to invoke the Commission's jurisdiction. That puts them in a very awkward position, in our submission. They've failed to explain that delay in any satisfactory way at all and that failure really redounds against any suggestion that the 127 application should be dealt with as a matter of urgency now.

PN128

THE COMMISSIONER: I intend to adjourn, just for a short time, to consider those submissions.

SHORT ADJOURNMENT [3.01pm]

RESUMED [3.13pm]

PN129

THE COMMISSIONER: I have considered the submissions of both parties and I acknowledge the submission in relation to the interplay of section 170MW and section 170MP in relation to this application before me. I emphasise, however, that the only application that I have before me is section 127, and pursuant to section 127(3) I have an obligation to hear and determine this matter quickly. I acknowledge the range of options that Mr Nolan sets out, and some of those options may be available to me in the course of determining this particular matter. However, in reaching that particular point, I find it necessary to commence and proceed with the hearing of this 127 application. However, I would certainly grant a short adjournment, Mr Nolan, if you require it, to consider the second affidavit and to seek instructions in relation to that.

PN130

MR NOLAN: Well, if it becomes necessary for me to ask for that, perhaps I can ask for it at the appropriate time.

PN131

THE COMMISSIONER: All right. Thank you, Mr Nolan. On that basis, we will proceed.

PN132

MR HERBERT: I understood that my friend wanted to cross-examine Mr

PN133

Olsson, and he's available and if necessary I will call him for that purpose, but I don't wish to adduce any further evidence from Mr Olsson.

PN134

MR NOLAN: Yes, I do wish to cross-examine him.

PN135

THE COMMISSIONER: Thank you.

PN136

MR HERBERT: I call Lindsay Olsson.

<LINDSAY OLSSON, SWORN [3.16pm]

<EXAMINATION-IN-CHIEF BY MR HERBERT

PN137

MR HERBERT: Mr Olsson, is your full name Lindsay Olsson?---Yes, it is.

PN138

And your work address is Level 9, 379 Queen Street, Brisbane?---That's correct.

PN139

And you're by occupation, a workplace relations consultant?---That's correct.

PN140

And you are the same person who has sworn three affidavits in the combined proceedings presently before the Commission. Is that so?---I am.

PN141

That's the evidence-in-chief of Mr Olsson.

PN142

THE COMMISSIONER: Thank you.

PN143

MR NOLAN: I have some objections to the affidavit before we get to the cross-examination, if I may. At paragraph 23, Commissioner, Mr Olsson offers an opinion about the union's motives or the union's conduct. He can't, of course, speak for the union. Therefore, objection is taken to the second sentence in paragraph 23, the one that commences, "I did because, at this stage it was clear to me that union, through it's failure to participate," etcetera.

PN144

THE COMMISSIONER: All right. I understand your objection in relation to that. Do you really - - -

PN145

MR HERBERT: Do you wish to hear from me now, Commissioner? Commissioner, that's an expression of opinion of - not an expression of opinion; it's an explanation as to why this witness did what he did and explained the opinion basis that he acted upon - or the opinion that he held in order to do what he did. It's the explanation of his conduct rather than being anything in the nature of providing an opinion about the conduct of anyone else.

**** LINDSAY OLSSON XN MR HERBERT

PN146

THE COMMISSIONER: It was his assessment of the action taken to date.

PN147

MR HERBERT: His assessment of the action taken to date in order to explain, "I did this because," and he's explaining his motivation for taking certain action which is based on his own assessment. If he didn't explain why he took certain action, he'd be open to question. he's just revealed that and that's not objectionable.

PN148

THE COMMISSIONER: I understand what you say there, Mr Nolan. It's not - he can't necessarily know what the union's motivation was for.

PN149

MR NOLAN: Well, that's right. Perhaps it could have been better expressed to say. "It was clear to me - it was my opinion that the union had done" a particular thing. If it's understood on that basis, I accept it on that basis.

PN150

THE COMMISSIONER: It's the witness' opinion.

PN151

MR NOLAN: Now, paragraph 27, of course, contains hearsay about the meeting on 20 February. I understand Mr Herbert says that he's got somebody to give some direct evidence about that. If that person is available, we would want that person to give that evidence and our objection is the whole of paragraph 27 because that seems all to be in the nature of hearsay.

PN152

MR HERBERT: Mr Weber is to be called so I don't need to press that paragraph.

PN153

THE COMMISSIONER: And he's not in the room at the moment, Mr - - -

PN154

MR HERBERT: He is and he will be excluded if the cross-examination is to go - but if that issue is not to be dealt with - but I'll ask him to go outside, in any event.

**** LINDSAY OLSSON XN MR HERBERT

PN155

THE COMMISSIONER: Well, I think Mr Nolan is flagging that - - -

PN156

MR NOLAN: Yes.

PN157

THE COMMISSIONER: Yes. So I think it's perhaps best that he be excluded at this stage.

PN158

MR NOLAN: So paragraph 27 can be struck out, then?

PN159

MR HERBERT: It's not relied upon.

PN160

MR NOLAN: Paragraph 27 is not pressed.

PN161

THE COMMISSIONER: Right. Well, we'll delete that from the affidavit. That's what you're agreeing to, Mr Herbert?

PN162

MR HERBERT: Yes, Commissioner. It doesn't take it any further. Mr Weber is here.

PN163

THE COMMISSIONER: Right.

<CROSS-EXAMINATION BY MR NOLAN [3.17pm]

PN164

MR NOLAN: Thank you, Commissioner.

PN165

Can I just ask you to look at paragraph 20 of your affidavit, please, Mr Olsson?---Just excuse me. I'll just - haven't got a copy of it at the moment.

**** LINDSAY OLSSON XXN MR NOLAN

PN166

Oh, you haven't got a copy of it? Perhaps we can give you a copy of it?---Thank you.

PN167

THE COMMISSIONER: Well, has the witness sworn that that's a true and correct copy of his affidavit?

PN168

MR HERBERT: He hasn't identified the file copy. He did swear that he is the same person who has filed affidavits. If it is necessary - the affidavits themselves depose to the correctness of the information in them - - -

PN169

THE COMMISSIONER: Yes.

PN170

MR HERBERT: - - - but if it's necessary to identify his signature on the file copies, perhaps I should do that, if the Commission has any concern about that, if it's appropriate to do it now.

PN171

THE WITNESS: Yes, it is, Commissioner.

PN172

THE COMMISSIONER: Thank you. For the record, we will indicate that is done - - -

PN173

MR NOLAN: Thank you, Commissioner.

PN174

THE COMMISSIONER: - - - and there's no vulnerability at all, Mr Herbert.

PN175

MR HERBERT: Thank you, Commissioner.

PN176

THE COMMISSIONER: And that's been marked as exhibit 1.

**** LINDSAY OLSSON XXN MR NOLAN

PN177

MR NOLAN: And you've got a copy of that affidavit with you now in the witness box?---Yes, I have.

PN178

Yes. Can I ask you to look at paragraph 20? You say there that Mr Ravbar attended a meeting with the applicants and yourself on 30 January 2003. How long do you say that meeting took?---I'd say that meeting took approximately - about 40 minutes.

PN179

40 minutes? I see. At that meeting, you discussed a number of matters to do with the terms that you had proposed to the union for a new certified agreement for those who you represented?---That was the document that we were discussing from.

PN180

Yes. So there was a document that formed the basis for the discussion of the substantive terms of any proposed enterprise agreement. Is that right?---Which was given to Mr Ravbar by myself when he attended that meeting.

PN181

Yes. And you were aware, weren't you, that there had been a general list of claims that was the subject of the union's general demands right across the industry?---The only claims that I was aware of was - which was on 6 November in relation to notification, initiating a bargaining period that was given to a number of my clients which I received which was just a - a form 40, just giving an outline of an ambit log of claims. That was the only documentation that I was aware of, despite continued requests to receive the full document.

PN182

Yes. Well, that's something that you attached to your affidavit, haven't you, that notification? Do you have that there?---That's correct.

PN183

Now, that's attachment 1, isn't it? There was a letter dated 6 November 2002?---That's correct.

**** LINDSAY OLSSON XXN MR NOLAN

PN184

And attached to that is R40, isn't it?---That's correct.

PN185

And all of the persons that you represent here had received a copy of that, on or about 6 November 2002?---That's correct.

PN186

So you knew, didn't you, at that stage, if you look at sub-clause D, that the union was after wage increases of a certain kind? Do you see that first dot point?---Yes, I do.

PN187

And you knew that they were after a 36-hour week, based on a nine-day fortnight, applicable from 1 July 2003?---Yes, I did.

PN188

You knew that they were after superannuation increases, set out there in the third dot point?---Yes, I did.

PN189

You were aware that they wanted increases in fares and travel allowances in the way the specified. Right?---Yes.

PN190

You knew they wanted increases to site allowances?---Yes.

PN191

You knew they wanted the redundancy under Bert to be increased from 1 January by - what is it - an amount of $63?---Yes.

PN192

You knew that they wanted an increase to their weekly income protection?---Yes.

PN193

You knew that they wanted a change to the insurance policy to ensure that there was top-up pay for two years as a result of a workplace injury?---Yes.

**** LINDSAY OLSSON XXN MR NOLAN

PN194

And you knew that they wanted these other things that are set out in the remainder of those dot points which I won't read out to you. Is that right?---It - it formed part of their ambit, yes.

PN195

Well, you say it formed part of their ambit but you've seen logs of claims, haven't you, served by the union before?---Yes, I have.

PN196

And you'd agree with me, wouldn't you, that logs of claims are quite a different and distinct document to a notice of this kind?---Yes.

PN197

You knew, didn't you, that, whereas there may have been some ambit in the things that were set out under the dot points in paragraph D, that this represented the core of the demands that the union was going to pursue against your members for the new enterprise agreement?---I couldn't say I'd be sure because it was never expressed to me by the union in - in relation to any meetings of what were their core subjects or what weren't their core subjects.

PN198

I see. Well, so far as you were concerned, you had brought to your attention this notice of the initiation of a bargaining period and that set out particular claims, didn't it?---It did.

PN199

So as at 8 November you knew that the union wanted to pursue those claims that were set out in the notice, didn't you?---Yes, I did.

PN200

And you took the trouble, on the faith of that, to construct your own shopping list of matters that your members - or your clients wanted to pursue with the union?---Some number of months later, yes.

PN201

And they were matters that you put to Mr Ravbar on 30 January in the meeting to which you refer at paragraph 20?---Which he'd received prior, on 10 December, as well.

**** LINDSAY OLSSON XXN MR NOLAN

PN202

Sorry?---The list - the document that Mr Ravbar was given on the 20th, they were also served to the union on 10 December of the - - -

PN203

All right. Well, that was in your notice initiating the bargaining period?---That's correct.

PN204

And on 30 January, Mr Ravbar actually went through the document that you'd put forward to the union, didn't he?---The document that was given to Mr Ravbar - eventually that document was gone through by the parties present, yes.

PN205

At that meeting on 30 January?---That's correct.

PN206

Yes. And it was true, wasn't it, that Mr Ravbar made certain comments about some of the claims that had been put by you to the union?---To my memory, two.

PN207

I beg your pardon?---To my - to my memory, two. There's was two - - -

PN208

Two of the issues that you'd put forward?---Two of the issues. Two of the issues out of a full document that he was prepared to comment on.

PN209

Yes. And they were two issues, weren't they, that were of particular significance for your people?---They were part of our claim.

PN210

Yes. Well, wouldn't you describe then as two key parts of your claim?---I'd say that they formed a basis of our whole document.

PN211

Well, what do you mean by that? They were important; they were at the core of the demands that you wanted to pursue with the union?---You could say that.

**** LINDSAY OLSSON XXN MR NOLAN

PN212

Yes. And those two issues were the request that you'd made for what was referred to as sectionalised rates. Is that right?---Sectionalisation was one of them, yes.

PN213

Yes. And the other one was an issue of a re-painting allowance, wasn't it?---It was - yes, it was, yes.

PN214

Yes. Perhaps you might just indicate what is meant by the re-painting allowance, as I've described it?---Oh, re-paint is - which - which forms part of the - the present or the expired EB which forms part of - on re-paints, that's - they're only required to - 90 per cent of the EB rates are applied on re-paints instead of the full hundred per cent rates of the - of the EB.

PN215

And why was important that you wanted to push that claim with the union, get the union's agreement to that?---Well, it formed part of the document in relation to - or sectionalisation or re-paint in relation to if a company was signatory to an enterprise agreement, it would apply to them, whether they were working on Lang Park or whether they were painting my house at home. So that was the formation of the 90 per cent of the sectionalisation which allowed the company - if they were performing duties outside of a specific dollar value or in a regional - regional area, well, then, their particular EB rates wouldn't apply to them so that they could be competitive.

PN216

And you were aware, weren't you, in the course of that discussion, that there were other general industry issues in relation to fare allowance and expected wage increase that would apply under the enterprise agreement that were raised and discussed by Mr Ravbar, with you?---There was no particular issues in relation to fares and travel - my recollection that I can remember that were raised.

**** LINDSAY OLSSON XXN MR NOLAN

PN217

Wasn't mentioned at all, you say?---What - what I'm saying is, what was mentioned by Mr Ravbar when he attended the meeting was (1) he didn't have a document that was served upon him in - 10 December. We proceeded to give him that document. He had a copy of that. In his hand, he had two or three draft agreements in relation to EB agreements that he made mention from in relation to a request that he would be given a copy of that. He wasn't able to give us a copy because they hadn't been signed by the particular companies. What he did was scantly mention a few issues in relation to the core points of that particular document, what was pretty well once conceded by a couple of major companies in relation to - by that, I mean the increase in BUS, increase in BERT and so forth and give us a general descriptor of what was going to be accepted by the union in relation to formulating an agreement. We then proceeded to go through our document briefly. By want of, "No, no, no, no, no, no, no, no; "I'll take that back, discuss it with wally, " "No, no, no, no, no, no, no," "Take that back and discuss it with Wally," that was the intent and that was the content of discussions that took place.

PN218

Right. Just getting back to what you said the bigger employers had raised, this issue of the rates of pay that was likely to occur in BERT and BUS, they were issues that went to what the expected increase everyone would agree to in those matters?---That was his understanding of what was going to be accepted or what the union were going to accept once the major companies had agreed to at that stage.

PN219

Yes, yes. And he was telling you that to indicate to you what the Union's thinking was on those key issues of wages and those industry funds, wasn't he?---That was what he put to us, yes.

PN220

Yes. And it would have been - isn't it fair to say that some of your members wouldn't have been at all surprised to hear what he said about those issues?---I couldn't say.

PN221

Couldn't you?---No.

**** LINDSAY OLSSON XXN MR NOLAN

PN222

So you didn't talk to your own members about that?---I spoke to my members after the meeting in relation to what was raised.

PN223

Well, you wouldn't have been surprised yourself, would you, that he raised those issues and said that there was a general level of wage increase and increases for BUS and BERT that they expected?---No, they weren't a surprise, they weren't a surprise to me, no.

PN224

No. And they weren't a surprise to you because that was probably what the thinking was throughout the industry in terms of what this wages round would produce. Is that right?---That could be correct, yes.

PN225

Well, what do you say?---I can't speak on behalf of the rest of the industry. All I can say is I've got an opinion on what I believe was going to be the benchmark on whatever it was. It was - - -

PN226

Yes. And it lined up with your own personal understanding of what the industry was going to accept?---Almost, yes.

PN227

Yes. And that included the issue of the 38 hour week?---38 hour week?

PN228

Sorry, 36 hour week?---36 hour week, yes.

PN229

Yes. So those issues, 36 hour week, a likely wages outcomes, increases to BERT and BUS, they were matters that occupied some discussion early in the meeting and there was, if not an overt consensus, there was a bit of an understanding that those sorts of issues were going to be settled along the lines that Mr Ravbar indicated?---I wouldn't say there was a discussion. It was more or less put to us in relation to, this is what's being conceded, so this is pretty well much going to be the benchmark of what the agreement will look like. If that's what you - if you call that discussion, well - - -

**** LINDSAY OLSSON XXN MR NOLAN

PN230

Well, but there nothing surprising about any of that, was there?---I was surprised that it was conceded by companies, yes.

PN231

Well, but if it had been the case that this was conceded by a number of companies, you wouldn't have been surprised that it was put on the table with your people as well?---No, I wasn't.

PN232

And the expectation would be that if those other companies had made those concessions, your people would probably make similar concessions?---Similar concessions, yes.

PN233

Yes. And so what really occurred then, was that there was a discussion about those general industry-wide issues, and then there was a focus upon the shopping list that you had - that your people had that were perhaps issues that were peculiar to your people's interest, namely, very importantly, the sectionalised rates and the re-painting?---Yes, well, I wouldn't call it a shopping list. I'd say it was a true log of claims that we served upon a Union that we were seeking discussions on.

PN234

An ambit claim?---I honestly don't believe that it's an ambit claim, no.

PN235

But however it's characterised, there were those two pretty important issues, the sectionalised rates and the re-painting, that's right?---Which had already been conceded before with the re-paint and the EB three years prior, and sectionalisation is a common division in a number of building EBAs. So it wasn't - we were trying to seek two things that were never consented by the Union ever before.

PN236

Yes. And no doubt you pointed that out to the Union and said, well, look, you've agreed with us before, what's the problem now?---That was discussed in relation to - - -

**** LINDSAY OLSSON XXN MR NOLAN

PN237

Yes. And Mr Ravbar wasn't under any compulsion, was he, to take those things up and make any concessions there and then?---He didn't make any concessions, no.

PN238

No. And what he said in fact was that he might be sympathetic to those claims if he could be absolutely confident that all the people who you represented were going to live up to their side of the bargain. Something along those lines?---I think that was discussed. What was more or less said was that he had his firm opinion in relation to these issues, but that only his firm opinion, being no, but he would at least take these two matters out of at least 20 matters that were raised back to Wally for discussion, being the secretary of the CFM, yes.

PN239

Yes. And he pointed out to you, didn't he, that a number of the painting employees had been the subject of big money clubs by the Union because of underpayment of wages?---Not at the meeting on the 30th, no.

PN240

Didn't he. It was something he certainly pointed out to you at one of the other meetings if not at that meeting?---It wasn't pointed out to me at any meeting, it was pointed out to me on a telephone conversation later on.

PN241

All right. Well, you became aware, if you weren't aware at the meeting on 30th January, that a real issue that was of concern to Mr Ravbar was the fact that a number of the persons who you represented had been the subject of significant money claims by the Union in the preceding months and year?---No, I can't say that.

PN242

You can't say that?---No, I can't.

**** LINDSAY OLSSON XXN MR NOLAN

PN243

I see. Do you say that you don't have any knowledge at all of that complaint being made by Mr Ravbar?---No, I can say that there was a telephone conversation that took place between me and Mr Ravbar over a matter of programming a further meeting after he received a letter from myself terminating our bargaining period, where he availed himself to show his face at a meeting, which we were able to schedule - which was already scheduled and conceded to be on 20th February. And during that conversation, he brought up some issues in relation to the industry in general, being the MPA, Master Painters' Association, and major contractors couldn't deliver on Union membership, which was raised, and also that a couple of companies, who aren't party to this application, that he had some aforementioned claims against them for all payments.

PN244

And just getting back to the meeting on 13 January, one of the things that was said was that - is there a person called Mr Sarri, who attended that meeting?---Yes, Frank Sarri, yes.

PN245

And didn't Frank Sarri make the point that it was a bit hard at that stage for them to finalise exactly what the outcome of the negotiations would be, because they wanted to know what the builders were doing?---No, that is not my recollection, no.

PN246

You don't recall that being said?---No, I don't recall.

PN247

You don't say that that was never said?---I can't say that, I just don't recall.

PN248

Now, you have agreed that Mr Ravbar said that he was unsympathetic to those two issues of the sectionalised rates and the repainting allowance, but he did say that he would take the matter to Mr Trohear, didn't he?---He said he would take the matter to Mr Trohear, and we were hoping to hear back from Mr Ravbar at the further two scheduled meetings later, which he didn't attend.

**** LINDSAY OLSSON XXN MR NOLAN

PN249

Yes. Well, he told you, didn't he, later on that he was stuck on the - I am just looking at paragraph 21 - on 6 February, that he was stuck in negotiations with the, I think, the Master Builders, and that that meeting with the Master Builders went on all day, which wasn't expected, and for that reason he hadn't been able to get back to you, and he - do you remember having a conversation with him about that?---No, not at all, not in relation to the 6th.

PN250

I see. Do you remember him saying to you in relation to one of those meetings, that he had asked somebody to ring up and tell you that he couldn't attend, and that apparently a phone call hadn't been made?---No, the only two conversations that I had with Mr Ravbar were one on the 15th, where he indicated that he couldn't attend the meeting on the 16th, which we rescheduled for the 23rd, which was fine. And then on the 23rd a call was put in to me by - I missed the call but it was on my voice mail - by Mr Ravbar stating that he was tied up in meetings, you're going to be pissed off but unfortunately I can't get out of it. That's the only phone conversations had in relation to that.

PN251

Now, you made no separate overtures to Mr Trohear notwithstanding some of those difficulties and having another meeting?---No, I didn't.

PN252

Now, on 18 February you received a notice of an intention to take industrial action which was dated - - - ?---Which was forwarded to me on behalf of my clients, yes.

PN253

Yes. And it was dated 14 February 2003. So you knew, on and from 18 February, that the union intended to take industrial action?---That was what was on their action, yes.

PN254

Yes. Well, I mean, if you took it at face value, you were on notice that they were going to take industrial action on and from the 26th?---I suppose it depends if you take it on face value. Unions do that, then they withdraw the night before but, you know, on face value, yes.

**** LINDSAY OLSSON XXN MR NOLAN

PN255

So as far as you knew, there was going to be industrial action starting on 26 February, and you knew that from 18 February, didn't you?---Yes, through notice of intention to take industrial action.

PN256

Yes. Now, you say that on the - now looking at paragraph 26, you say that on 18 February you received a telephone call from Mr Ravbar - - - ?---Mm.

PN257

- - - in relation to your letter dated 17 February - that was the one where you withdrew your bargaining period. Is that right?---That's correct.

PN258

And you say that:

PN259

During that conversation Mr Ravbar asked me why the applicants had withdrawn their notices -

PN260

and you go on to make some comments on that?---Mm.

PN261

Now, when you received that phone call, that was after you had received the notice?---That's correct.

PN262

Yes. Now, you don't say anything at all in that about having said to Mr Ravbar, "Well, hang on a minute, I've just got a notice that the union is going to take industrial action next week"?---Mm.

PN263

You haven't mentioned that at all, have you?---I didn't mention it with Mr Ravbar, no.

PN264

You didn't mention it to him?---No, that's right.

**** LINDSAY OLSSON XXN MR NOLAN

PN265

Is that right? So you knew that the industrial action was going to be taken the following week by the union - - - ?---Mm.

PN266

- - - and you didn't regard it as significant enough to raise it with Mr Ravbar when he called you on the 18th?---What was raised in relation to that, in a conversation I recall with Mr Ravbar on that date, was that - was in relation to this particular point; the conversation contained a number of other matters as well. My conversation to Mr Ravbar was that in relation to their strike action that they were going to take place. This is when we convened when - at his suggestion and that he was prepared to have further discussions with myself and the Committee on 20 February which was already a programmed day, an exchange of letters that we were prepared to have discussions. And during my discussion with Mr Ravbar was that would he not - would his organisation, if we continue to have discussions, not take protected action against my clients, and he said, "I can't give you that guarantee".

PN267

All right. So as far as you were concerned, on 18 February, the CFMEU was going to take protected action against your clients?---Through their notice, that's correct.

PN268

Yes. You didn't say to him on 18 February, "Well, hang on a minute. This is an entirely inappropriate thing to do. We're going to make an application to the Commission to stop you from taking this industrial action"?---I didn't say that because that wasn't a matter that I had discussed with my clients in relation to which form of action we were going to take. We had a programmed agreed meeting, and we had a program - meetings which were agreed upon between myself and the CFMEU to have discussions in relation to reaching a certified agreement.

PN269

Yes. And you had already had some discussions on what - 30 January - along those lines?---We had one - one meeting was attended by Mr Ravbar.

**** LINDSAY OLSSON XXN MR NOLAN

PN270

Yes, and you had a couple of meetings that were aborted for various reasons but you knew on the 30th, didn't you, what Mr Ravbar's view was about your log claims as well as the union's claim?---No, because Mr Ravbar hadn't availed himself of the opportunity to get back to us in relation to what his position was.

PN271

He told you, didn't he, what the expected outcome was on the wages front, and on BERT and on BUS, and he told you what he thought of your log claims, didn't he, on 30 January?---But he was going to seek advice from Mr Trohear and he would report back to us. At that stage, he had not reported back to myself or the committee to say whether it was dead on the water, we would consider it, or not.

PN272

And he sent a copy - didn't he send some material to you on the 18th, about the union's position?---He sent the EBA - a Queensland Building Industries Sub-Contractors kit, which was mailed to me.

PN273

That's right. And then he saw you again on the 20th, didn't he?---No, he didn't see me on the 20th, no.

PN274

Sorry. He saw your colleague on the 20th?---Seen the EBA negotiating committee on the 20th, yes.

PN275

Yes. And there were some discussions that took place there that you weren't privy to?---I wasn't privy to the discussions there, no, just the report which was given to me afterwards.

**** LINDSAY OLSSON XXN MR NOLAN

PN276

Yes, you heard later on about that. So you said nothing at all to Mr Ravbar on the 18th that unless he really got cracking and did something that met your satisfaction, that he would run the risk of it being said that he hadn't genuinely tried to negotiate with your people?---As I said, the conversation that took place on the 18th - Mr Ravbar instituted the phone call in relation to why we withdrew our bargaining period. As I said to him, "We withdrew our bargaining period because it was obviously it was a waste of time to try and reach an agreement with your organisation because you haven't facilitated or been negotiating in good faith on our programmed meetings", and once I said that to him he said, "Well, I'm available on the 20th. I'm prepared to have further discussions." I said we were prepared to have further discussions at any time. Unfortunately they can't be there. I'm in a Magistrates' Court matter. Changed the meeting from 2 pm to 1 pm, and also while we had that conversation, as I said before, our discussions with you in relation to if we were going to continue to program these meetings as we've agreed to before, that - would his organisation take no industrial action against my clients, to which he said no.

PN277

And he said no. So you knew then the industrial action was going to go ahead so far as the CFMEU was concerned, on the 18th, when you spoke to him?---Potentially, yes.

PN278

Yes. And you didn't say to him, on the 18th, "Well, look, Mr Ravbar, you want to watch yourself here because your organisation runs the risk of losing the protection for this industrial action because you've failed to negotiate in good faith, or genuinely, with us"?---I didn't say this to Mr Ravbar because at that particular stage I hadn't convened a meeting with my clients to get any direction of which way were going to proceed, one way or the other.

PN279

Well, isn't it more accurate to say that you didn't say it because it hadn't occurred to you then. Is that right?---Obviously there's a number of things that occur to people throughout the duration of negotiations of what options are available to them. But it wasn't something that I could say, on behalf of myself, to threaten Mr Ravbar or inform him of that, because I had no direction from my clients that we were going to proceed in any particular way.

**** LINDSAY OLSSON XXN MR NOLAN

PN280

Yes, but you're an industrial relations consultant. You set yourself up, don't you, to give people industrial advice?---Yes, I do, but I'm not - I'm also engaged by clients, and unless I've been instructed by my clients to say (a) or (b), well, then I don't say (a) or (b) until I get a mandate to do so.

PN281

Yes, but you were engaged by your clients to give them advice about the course of this dispute, and the negotiations with the CFMEU?---I've been involved since July of last year.

PN282

Yes. And ordinarily I would expect that in that role you would give them advice about their rights under the Act?---That was given to them, yes.

PN283

Yes. And so the logical thing to do, I suggest to you, would be to consider the position that your clients enjoyed, vis-a-vis the CFMEU, at each particular stage in the discussions and negotiations with the CFMEU?---It wasn't until my - until the meeting took place on the 20th between Mr Ravbar and the EBA committee, and I was given a report, that we were able to reconvene a meeting with my clients to inform them of what had happened, and on advice from myself - or for a mandate - from whatever - there was strategies put in place after there in relation to what course and what track we could do down prior to me speaking to Mr Ravbar.

PN284

Well, on the 18th, you say yourself that your members had sent to you these notices that the CFMEU had sent to them saying they were going to take industrial action from the 26th?---Yes, I received those, yes.

PN285

Well, presumably they didn't send it to you just, you know, because it was a nice thing to do. It was a part of the ongoing industrial engagement between them and the CFMEU, wasn't it?---The reason why the documentation was forwarded to me was - the reason why it was forwarded to me from 6 November - it was in relation to compile a documentation in relation to our discussions that we've tried to instigate with the Union, so that we could have some form of documentation in relation to what had happened between the two parties, which is all in my evidence today.

**** LINDSAY OLSSON XXN MR NOLAN

PN286

Well, you'll agree with me, won't you, that when you got the notice on the 18th - when you received on 18 February, the logical and sensible thing to do immediately was to see, at least make some prima facie assessment of the industrial action, whether or not it was protected, unprotected, what the circumstances were?---It wasn't my position to come to any assumption in relation to that, because as far as we were concerned, we were still negotiating in good faith and we were continuing to, and wanted to continue negotiating in good faith. We were able to - I was able to obviously advise my clients after the date of the 20th, after the meeting with Mr Ravbar, in relation to what strategies were available to them in relation to this protected action.

PN287

So on 18 February, you hadn't turned your mind at all to whether or not the CFMEUs industrial action was unprotected action?---Obviously I'd formed a view in my own mind of what I believed the chain of events, but I'd formed no opinion at that particular stage of what it was, no.

PN288

Yes. And you were happy to have another meeting, or arrange a meeting, on the 20th where further discussions could take place?---We were happy to do so after he failed to attend and notify us that he wouldn't attend the two meetings prior to, so once Mr Ravbar phoned myself, (a), I was happy that he was talking to me; and (b), I was happy that he was going to attend any meetings that were scheduled, or agreed to be scheduled.

PN289

And you made no allegation to Mr Ravbar on the 18th that there was something wrong with this notice, that it was, you know, a put up job, that there had been a failure to negotiate in good faith up until that point, did you?---No, I didn't. The point I made was, on behalf of my clients, that if we continued to have discussions, would his organisation not take protected action, or take strike action against my clients and he said no.

PN290

Yes?---That was all that was said.

PN291

And so can I suggest to you you didn't make that suggestion to him because it hadn't occurred to you on the 18th to make that suggestion to him?---What suggestion was that?

**** LINDSAY OLSSON XXN MR NOLAN

PN292

That he was not negotiating in good faith?---Could you put the question to me again?

PN293

Well, you didn't say to him on the 18th, "Hang on a minute, you're not negotiating in good faith. How can you take protected action?"?---No. I didn't say that.

PN294

And I've suggested to you that you didn't even turn your mind to whether or not he was negotiating in good faith on the 18th when you spoke to him, did you?---My mind had been turned for a period of time whether the CFMEU had been negotiating in good faith, probably since November of last year.

PN295

But whether you turned your mind to it, you made no suggestion to him at all that the notice of intended industrial action was something that you would be disposed to challenge because it lacked good faith?---No. The reason why I didn't make a comment, because I wasn't authorised to make any comment on behalf of my clients.

PN296

I see. But you were authorised to arrange another meeting on the 20th?---That meeting had already been arranged and had been agreed to by evidence in my affidavit, which was already set down for the 20th, and all I did was confirmed that we were going to be there, irrespective of whether Mr Ravbar turned up, as we'd been at the two meetings prior.

PN297

Well, of course, if the CFMEU had been - had not been genuinely endeavouring to reach agreement on the 18th, at that time you could have made an application to the Commission, couldn't you, to have the protected action notice set aside?---There was - that was only a notice to take industrial action. The unions used that as a threat to tip organisations and companies into signing. Until such time as the strike action takes place, you don't know whether it's going to take place or not.

**** LINDSAY OLSSON XXN MR NOLAN

PN298

So you wouldn't have considered securing some tactical advantage for your own clients by making an application of that kind back on the 18th?---Not on the 18th. It wasn't discussed, as I said before.

PN299

Yes. So moving forward to the 20th, you say you weren't at that meeting on 20 February?---That's correct.

PN300

Well, when did the suggestion arise that the union was not acting in good faith?---Well, it was more or less - well, it was more or less raised at that particular meeting, and it's only hearsay which was reported to me, and I'm sure Mr Weber will confirm that when he gets the opportunity, was what come out of that meeting was that, if the contractors or my clients are good boys, and by that his interpretation was that if they don't make any 127 applications, or 170MW applications, well, then, you may get sectionalisation.

PN301

I see. Well, was that something you say that was discussed with you after the meeting?---That's correct. It was discussed - Mr Weber called me after that meeting and give me a report of what took place at 20 February.

PN302

And can I suggest to you it was after that meeting that you then sat down and - perhaps with your colleagues and said, "Well what can we do now to avoid this industrial action that's apparently going to take place on the 26th"?---It wasn't at that particular stage. Obviously advice had been sought all the way throughout this in relation to what our options may or may not be, but they were explained to my clients in relation to what was available to them under the provisions of the Commission.

PN303

When you say advice was sought, what are you talking about there?---What I'm talking about there is in relation to advice was given to my clients as I'm obliged to do of what options are available to them under the provision of the Act.

**** LINDSAY OLSSON XXN MR NOLAN

PN304

This is advice from you to your clients?---That's correct.

PN305

Well, when did you advise your clients that they could make this application, either under section 127 or under 170MW?

PN306

MR HERBERT: Well, with respect, examining the entrails of who gave what legal advice to whom in relation to these matters has got really nothing to do with this application. We're dealing with a question here as to whether there was genuine attempt to reach an agreement, not what advice, what strategic advice Mr Olsson may have given his clients in what was obviously a hot industrial issue relating to the CFMEU. They're not entitled to use these proceedings to go behind the curtain of the advice that might have been given by an employer organisation to its clients.

PN307

MR NOLAN: That's just not right. We're perfectly entitled to explore the motives of the applicant in this application because there are big discretionary issues that you need to turn your mind to of the kind that I addressed you earlier, and from this witness's own evidence, submissions can be made about exactly how this dispute evolved and exactly how credible this section 127 application, for a start, is, and it's perfectly germane to the issues of law and the issues of discretion that you need to address, Commissioner.

PN308

THE COMMISSIONER: Well, I don't think there's any actual issue of confidentiality that we'd be breaching there, Mr Herbert, is there?

PN309

MR NOLAN: There's no privilege.

PN310

MR HERBERT: Well, with respect, there may well be. I don't know where this is going, but it is - my friend is seeking to cross-examine as to what advice was given when and to whom in relation to strategic steps - - -

**** LINDSAY OLSSON XXN MR NOLAN

PN311

MR NOLAN: That's right.

PN312

MR HERBERT: - - - taken in an industrial dispute. Now, with respect, that has nothing to do with this question. My friend would like there to be an MW application here so he could deal with something in that. It isn't here and he's having trouble dealing with that. This is simply a question as to whether the jurisdictional facts for a 127 application exist, namely, action is being taken in a given context, and once that is established, then there is simply the discretion vested in the Commission to determine whether that action and its consequences are sufficiently severe, as it were, that they ought to be visited with consequences under the Act.

PN313

Now, who took what step in relation to deciding whether to take an application now or to wait to see how a meeting went later and things of that kind can't possibly be on any of those issues. It might be nice for the CFMEU to know what thinking was going on in the other camp so that they can use it next time, but it's got nothing to do with these proceedings. Now, this cross-examination has a distinct air of fishing in order to find out what strategies are adopted on the other side so that there is some - there will be some ability to use that next time these parties are in controversy with each other, and that's simply not permissible.

PN314

THE COMMISSIONER: Mr Herbert, you raised section 170MP with me in relation to - is that a provision that you intend to rely on in these proceedings?

PN315

MR HERBERT: Yes. 170MP is the provision which renders the action taken as being unprotected.

PN316

THE COMMISSIONER: Yes, but isn't pertinent to that whether there was bargaining in good faith and whether in fact negotiations were going to proceed during that time?

**** LINDSAY OLSSON XXN MR NOLAN

PN317

MR HERBERT: 170MP deals with the question as to whether - - -

PN318

THE COMMISSIONER: Genuinely trying to reach agreement.

PN319

MR HERBERT: Genuinely have tried to reach an agreement with the employer. That is, whether the party who took the action genuinely tried to reach an agreement with the employer. That has, with respect, nothing to do with the question of what the employer's ultimate strategies might be in relation to dealing with actions which were being lined up against it. And that is the industrial action which, in a sense, was going on behind the scenes, or as a parallel activity to the negotiations.

PN320

I use negotiations in a very loose sense of the word, but the exchanges between the parties are the evidence of whether there was a genuine attempt by CFMEU to reach an agreement with these employers, and that really has essentially nothing to do with the question of the industrial action at the time.

PN321

THE COMMISSIONER: Well, Mr Nolan, I think the issues that you are raising are pertinent, but in terms of the interaction between the employers and the union as per the way it is framed in section 170MP is that you can ask your questions in relation to what events actually did occur, because I mean, as I understand it, that is what I have to look at in relation to 170MP and the interplay.

PN322

MR NOLAN: Well, that is right, but I am entitled to ask - I am entitled to cross-examine about all the facts and circumstances, becuase you have to draw inferences from found facts, and a complaint is being made here to the effect that my client has failed genuinely to negotiate. Now, I don't want to telegraph anything to the witness, but you can see where I am going, and the credibility of that complaint very much stands or falls on some of the circumstances that I am exploring in cross-examination.

**** LINDSAY OLSSON XXN MR NOLAN

PN323

And I must say I am - perhaps I am having less trouble than even I anticipated in pursuing that, if the vehemence of Mr Herbert's objection is any indicator - but it is very relevant. It is centrally relevant to the situation becuase this allegation is being made, you have got to be satisfied about a certain course of conduct, and the credibility that attaches to the allegations made against my client has itself to be explored, including the motives and the circumstances in which the allegation comes forward.

PN324

THE COMMISSIONER: All right. I will allow the questions in relation to - - -

PN325

MR NOLAN: Thank you, Commissioner.

PN326

Now, Mr Olsson, you say sometime after the meeting on the 20th, you had a meeting with your people; is that right?---That is correct.

PN327

And what I asked you was: was that the time when you gave your people advice, or the subject of an application under section 127 was made?---What was - what was said at that report-back meeting in relation to what the options were available to my clients in relation to (a) the discussion that took place with Mr Ravbar on the 20, Mr Ravbar's comment in relation to which was a very important issue in relation to his comment to my clients that if they continue to be good boys they will - they may get sectionalisation. So what had to be considered in relation to my clients was well, what are our options in relation to can we challenge this, can we challenge the bargaining period in relation to this strike action, what options are available to us there? Are we better just to sit on our hands and just pray and hope that Mr Ravbar has mercy on my clients and gives them, becuase they are good boys, and gives them sectionalisation, or do we wait and see whether the CFMEU do take industrial action, and if they do then take industrial action, it means: (a), well, the good boys is off, so the only options available to my clients then will be to make an application, a 127 application.

**** LINDSAY OLSSON XXN MR NOLAN

PN328

I see. Well, of course - and we will get to Mr Weber's evidence eventually - but when Mr Ravbar raised these things on 20 February, one option available to your clients who were in the meeting was to take him up on his suggestion and put together a series of propositions that could be agreed upon to settle their part of the dispute. That was an option available to him, wasn't it?---Option available to the union as well to be able to give my clients at least a copy of the proposed agreement that was presumably signed by other companies.

PN329

But just focusing on your option, you had an option to take the initiative, didn't you, and say to Mr Ravbar, all right, well, what you have suggested to us sounds plausible, let's just put that down in writing and reach an agreement along the lines you suggest. What prevented that?---That - what prevented that was Mr Ravbar stating that he was going to take strike action against my clients.

PN330

Well, of course, if your people had come forward with a proposition that was satisfactory to Mr Ravbar, the question of strike action could have been resolved?---It wasn't a matter of me putting together a proposition of a client. It was, unless were prepared to sign off on the agreement that had been signed off by a couple of major builders, well, then, that was our only option. That was the only thing that would avail us from strike - my clients from strike action.

PN331

Well, so on the 20th, they were presented with a specific proposal to which they could have acceded, and - - -

PN332

MR HERBERT: Well, with respect, my learned friend - - -

PN333

MR NOLAN: I am sorry.

**** LINDSAY OLSSON XXN MR NOLAN

PN334

MR HERBERT: Look, I must take issue with this. My friend objected to the evidence that Mr Olsson gave about the meeting on the 20th. He is now cross-examining him about the activities of the meeting of the 20th having succeeded in having that material struck out of his affidavit. Now, he objected on the basis that Mr Olsson can't say what happened at the meeting, or who said what to whom. I accepted that; that matter was deleted. Now, we are seeking to make a point about what could and couldn't have been done, or was and wasn't done at that meeting. You can't have it both ways, with respect.

PN335

MR NOLAN: Well, I can have it both ways becuase I am not having it both ways. What I am legitimately able to put to this witness, Commissioner - - -

PN336

THE COMMISSIONER: Well, I should say at this point, 27, the entire paragraph is struck out.

PN337

MR NOLAN: Yes. But I am asking this witness about the options that were confronting him and his clients consequent upon the meeting of the 20th. He says - - -

PN338

MR HERBERT: At the meeting of the 20th, you said.

PN339

MR NOLAN: Well, at, or consequent upon; it doesn't really matter. He can speak, he is a person who is giving industrial advice to his clients. He is coming here and saying the union failed to negotiate in good faith. He accepted that on 20 February in the meeting Mr Ravbar laid out a proposal for their acceptance or rejection. He has accepted that, and there is no - - -

PN340

MR HERBERT: Well, with respect, he hasn't accepted that. That is a complete mistake of the evidence, and he has been objected to in relation to saying anything that happened at that meeting. Yet my friend is verballing, with respect to him, as to what was said at that meeting and is now seeking to rely on that from the bar table. And that evidence has not been given, and it has been objected to by him.

**** LINDSAY OLSSON XXN MR NOLAN

PN341

MR NOLAN: Mr Weber can give direct evidence about this in due course, and he will.

PN342

THE COMMISSIONER: All right. Well, I think at this point, Mr Nolan, I did concede to that being deleted.

PN343

MR NOLAN: Yes.

PN344

THE COMMISSIONER: And it was only that a report was received. I mean, all of that information on 27 was deleted, and in fact - so at the moment, all we have is that there was - with 27 deleted, I don't even know that we have that he had attended.

PN345

MR NOLAN: He didn't attend that meeting.

PN346

THE COMMISSIONER: No, no. We don't even have that Mr Ravbar attended that meeting with that 27 deleted, but he has agreed to that and that is about all.

PN347

MR NOLAN: Well, I can put propositions to him to say that Mr Ravbar was there. He knew this later on.

PN348

THE COMMISSIONER: I don't think Mr Herbert is objecting to that.

PN349

MR NOLAN: Well, I think he is.

PN350

THE COMMISSIONER: I think he is objecting to what the witness has conceded about that meeting on the 20th.

**** LINDSAY OLSSON XXN MR NOLAN

PN351

MR HERBERT: I am also, with respect, objecting to what my friend just said. He puts propositions to this witness about what happened at that meeting and what was said at the meeting by Mr Ravbar. I tried to do that.

PN352

THE COMMISSIONER: And that will have to be put to Mr Weber.

PN353

MR HERBERT: And it was objected to and it was taken out of the proceedings. He is now trying to go around the ruling which he secured himself.

PN354

MR NOLAN: Well, I am not, with respect, but anyway I can perhaps approach it a different way.

PN355

THE COMMISSIONER: All right.

PN356

MR NOLAN: No doubt it will still attract objection.

PN357

Just for the purposes of the question, assume that Mr Ravbar put particular propositions on the table at that meeting of the 20th?---But he didn't.

PN358

Well, I am asking you to just assume that he put particular propositions on the table on the 20th. It would have then been open to those in attendance to either accept or reject the propositions; do you agree with that?---If that is what would have happened, yes.

PN359

All right. Now, you had a meeting later on after that meeting with the people who were in attendance at the meeting on the 20th; is that right?---Yes, yes, I was.

**** LINDSAY OLSSON XXN MR NOLAN

PN360

And I think you said a little while ago - but correct me if I am wrong - that they said that Mr Ravbar had said if you agree to certain things you will be looked after?---Mr Ravbar said one or two things, and it is obviously - it has been what has been reported to me. Two things were said; the most important thing was that if you continue to be good boys, you will get your sectionalisation.

PN361

All right?---And the other thing from memory is that the other concern was that my clients hadn't had a history of being able to deliver union membership to the CFMEU.

PN362

All right. Well, those were matters regarding which there could have been agreement from your people to the union, weren't they?---My - the purpose of myself and the EBA contractors committee were able to negotiate the agreement, if we had the opportunity to do so up to a point, and then take it back to the rest of the contractors in relation to for rejection or agreement or report.

PN363

All right. And so the EBA contractors committee could have said to the union we are going to recommend that we accept what Ravbar said on the 20th, in the hope that that will settle the dispute; couldn't they?---I don't know.

PN364

What, they couldn't have done that?---The EBA committee could have - as you have said, it is all - I put this to you; this may have happened, this may not have happened. The circumstances before me are - they have the ability to be able to hold discussions; we have the ability to charter, to be able to have discussions in relation to reaching a point which we believe was an agreement which would be accepted by the contractors and take it back to the other contractors for agreement.

PN365

Yes. And on the 20th after the meeting when you had the meeting with your people they told you a particular proposition had been put and that was a proposition that they rejected?---The only proposition that was put was that if they continued to be good boys they may get sectionalisation; that was the only proposition that was put.

**** LINDSAY OLSSON XXN MR NOLAN

PN366

But it was a proposition that was put, wasn't it?---If you call that a proposition, yes, it was put.

PN367

Yes. And it was a proposition to which a response could have been offered; is that - - -?---They could have offered a response, yes, they could have.

PN368

Yes. But they elected not to make a response to that, but to consider another course; namely, to make an application to the Commission to try to cut off the industrial action in the manner that you have now attempted with the section 127 application?---That was forced upon them by strike action taking place.

PN369

So when was the decision made to make the application to the Commission?---The decision to be made to make application to the Commission was taken and was made about 6.30, 6 o'clock, 6.30 of the morning that the strike action took place.

PN370

So 6.30 on the morning of the 26th?---That's correct, that's when - - -

PN371

All right. So between the evening or the afternoon of 20 February, and the morning of 26 February, the industrial action was of such great significance that no one had even lifted up a pen or a telephone to make an application to the Commission; is that what you're saying?---No, what I'm saying is you asked me when the application was made.

PN372

Yes?---I'm telling you the application was made and filed on that day.

PN373

Yes. Well, how do you account for the delay between 20 February and the morning of 26 February?---Because strike action only took place on that morning.

**** LINDSAY OLSSON XXN MR NOLAN

PN374

I see?---So hence the application for 127 to get orders.

PN375

So did you believe, did you, that you couldn't make an application until the strike action had actually taken place?---It's not a matter of whether - what I believed or not; it was a position that we made - or a tactical, call it whatever it was, in relation to that application was made once strike action had taken place because there was a real threat - that was when the strike action took place.

PN376

I see. But you were on notice from the 18th that there was going to be a strike, weren't you?---Potentially, yes.

PN377

Yes. So was that something that - did anyone give any thought to what should be done between the 20th and the morning of the 26th?---Well, obviously we still had meetings scheduled and we were hoping that we would be continuing down the path of trying to reach a certified agreement with the CFMEU without them taking strike action because we'd been trying to negotiate for eight months to reach a certified agreement, to no avail.

PN378

Well, when was the decision finally made that an application would be made under section 127?---The application was made on that morning that the strike action took place.

PN379

On the morning of the strike action; all right. Now, after the 20th and before the morning of the 26th, you don't say that you sent any further entreaties to the union, or complaints or anything of the kind?---No, there was no exchange between the parties on my understanding from the 17th - that was the last exchange - well, the last exchange was the verbal exchange with Mr Ravbar by phone on the 18th.

PN380

Yes, but as far as your people were concerned, you had the meeting on the 20th with him?---That's correct, yes.

**** LINDSAY OLSSON XXN MR NOLAN

PN381

Yes. Just a minute. Were you told, after the meeting on the 20th, were you told by anyone who attended that meeting that Mr Ravbar had said to those in attendance that they could take the matter of the sectionalised rates up personally with Mr Trohear if they were so inclined?---No, that wasn't reported to me, no.

PN382

That wasn't reported to you. Yes, there's no further cross-examination, if it please the Commission.

PN383

THE COMMISSIONER: Thank you. Mr Herbert.

<RE-EXAMINATION BY MR HERBERT [4.12pm]

PN384

MR HERBERT: You were asked what was reported to you in relation to that meeting at some length; what was - and you were asked in particular about the position as to propositions that were put at that meeting of 20 February that could have been accepted. What proposition or propositions were reported to you as having been put at that meeting that were capable of acceptance, that fell within the scope of the ambit claim, as you described it, on - that fell within the - that was contained in the initiation of the bargaining period notice. What propositions were put at that meeting - - -?---The only propositions - - -

PN385

- - - that fell within the scope of that notice?--- - - - were the sectionalisation.

PN386

And what proposition was put in relation to the sectionalisation?---That if my clients were good boys, they may get sectionalisation.

PN387

So that's the proposition that was put, was it, at the meeting, so far as you were informed?---So far as I was informed, yes.

PN388

Anything else that falls within the form R40 scope?---Nothing that was informed to me from that meeting, no.

**** LINDSAY OLSSON RXN MR HERBERT

PN389

Right. Was a document handed over, anything like that?---No documents were handed over by the union.

PN390

All right. Can I take you back? You were asked about the meeting on 30 January that you did attend, did Mr Ravbar arrive with any documentation that might ordinarily be part of a negotiating process?---On 30 January, no. He only attended with a couple of draft documents. He didn't have a copy of our log of claims or their log of claims, no.

PN391

He didn't have a copy of the document you delivered being the employers claims with him?---That's correct.

PN392

And he had a couple of draft agreements, did he?---That's correct.

PN393

Did you see them?---No, I didn't.

PN394

Did he show them to you?---No, he didn't.

PN395

Did you ask for them?---Yes, I did.

PN396

And he refused?---Yes, he did.

PN397

And did he present to you any documentation at all that outlined the matters which, if accepted, would resolve an agreement between you?---No, nothing was given to us.

PN398

And did he tell you what was the status of the documents that he had in his hand and wasn't going to show you?---The status of the documents were draft documents, that he wasn't in a position to show us because they hadn't been signed off by the proposed contractors.

**** LINDSAY OLSSON RXN MR HERBERT

PN399

And did he tell you that if you agreed to these secret documents, that there would be a resolution between you - - -?---No.

PN400

- - - or anything like that? Did he make any claims on behalf of the union, saying, "If you agree to this set of demands, then we have a deal"?---No.

PN401

You say that he commented on two of the issues that you raised, in anything other than, "No, no, no". Those two issues you've mentioned were the sectionalised rates and the repainting allowance. How many issues were raised by you for comment or agreement?---There was at least - we tried to go through the entire document. There would have been at least - - -

PN402

That's the employer document?---The employer document. There would have been at least about 15 points that were raised by us at that meeting in relation to crib time, etcetera, etcetera.

PN403

And did - when he said no, you mentioned before he said, "No, no, no", did he make any counter proposal in relation to any of those issues?---No, he didn't.

PN404

In a to-and-fro negotiating sort of way?---No, there was just, "No, no, no, refer to Wally".

PN405

And the matters that he said he would refer to Mr Trohear, was there ever any response back to you - - -?---No, I haven't received any response.

PN406

- - - other than the reported response that, "If you be good boys, they may consider it"?---That's the only response back.

PN407

Now, it was put to you by my learned friend that the way that meeting went, that's the meeting on the 30th, that there was a discussion of general industry issues raised by Mr Ravbar, that is, the sort of rates the union had considered were going to be accepted out there in the industry, and then there was a focus on the employer proposals after that?---That's correct.

**** LINDSAY OLSSON RXN MR HERBERT

PN408

Was there any attempt made to bring those two levels together.

PN409

MR NOLAN: I object. Objection. This is about the tenth leading question that's been asked in re-examination. I haven't objected so far but Mr Herbert should be asked to ask proper questions in re-examination. It's not an opportunity just to cross-examine your way out of cross-examination.

PN410

MR HERBERT: I'm sorry, I thought I re-stated my learned friend's question. If he objects to his own question, it's a problem because it's already on the transcript. I re-stated his question and the proposition he put to the witness as I noted it, was the one that I put to the witness, that is, that there was a discussion of general industry issues followed by a focus on employer proposals; that's my friend's words.

PN411

MR NOLAN: But then you went on to put a leading proposition to him.

PN412

MR HERBERT: Then I went to ask a question. The question I asked was, having said - my friend said there were two things being discussed. I asked the question: was there any attempt made at the meeting to bring those two issues closer together. Now that's not leading.

PN413

MR NOLAN: Well, that's the objectionable part of the question. He should have been asked then a non-leading question about what occurred at the meeting, not words put into his mouth to agree to.

PN414

MR HERBERT: Well, I stand by the question, Commissioner. It's not a leading question at all. It's a question that's intended to ascertain - - -

PN415

MR NOLAN: A yes answer.

**** LINDSAY OLSSON RXN MR HERBERT

PN416

MR HERBERT: - - - whether an attempt to do a certain thing was - happened or not.

PN417

THE COMMISSIONER: Was there any connection between those two things.

PN418

MR HERBERT: Was there an attempt made to draw those two issues together in a negotiating fashion; that's what this - that's the way in which it was cross-examined upon and I'm entitled to clarify whether anything happened other than a mere statement of two positions.

PN419

MR NOLAN: But not by putting leading questions.

PN420

MR HERBERT: It's not a leading question, with respect, Commissioner, at all.

PN421

MR NOLAN: Yes, it is.

PN422

THE COMMISSIONER: Well, Mr Herbert - - -

PN423

MR HERBERT: Well, I could go the long - I'm sorry, Commissioner. I can go the long way round and say - - -

PN424

THE COMMISSIONER: It might assist me in relation to this objection.

PN425

MR HERBERT: Well, Mr Olsson, can you recall what was then said in relation to the proximity of those two positions, that is, the general industry position and the employer proposals; do you recall what was said about that, if anything?---There was no discussions in relation to combining or massaging a document together. There was - points were raised by Mr Ravbar in relation to what he perceived were the industry concessions or standards and then we proceeded to go through our employer document which was just replied upon in relation to, "Tick, no, no, no, yes, yes".

**** LINDSAY OLSSON RXN MR HERBERT

PN426

All right. Now, at any point in your discussions, Mr Olsson, at that meeting or any other telephone conversation that you were asked about or that you've given evidence about, or in any report you had of the meeting of 20 February, was a proposition put that was capable of being accepted so as to create an overall agreement for Master Painters?---No proposition has been put to us, no.

PN427

And where in - if it was a - you were asked today to agree to the union claim or the union's position in relation to the matter, where in those discussions that you had with Mr Ravbar is that articulation of the claim that you would have to agree to; does such a thing exist?---No, nothing exists.

PN428

Thank you. I've nothing further.

PN429

THE COMMISSIONER: Thank you, Mr Herbert. I'm assuming, Mr Herbert, we've dealt with the one page affidavit that deals with Havecoat as well in these - with this witness that - - -

PN430

MR HERBERT: Yes. Yes, that - I should - I'm sorry, it was probably my fault. I dealt with the matter in a way that ordinarily happens in Courts as opposed to the Commission, but I perhaps should formally have tendered each of the three affidavits. I understand the first affidavit upon which the cross-examination was conducted as been marked as exhibit 1.

PN431

THE COMMISSIONER: I think we nearly did get to that point.

PN432

MR HERBERT: Yes, that's my fault. Could I ask that the affidavits which I read, as it were, or referred to in opening as being the second and third affidavits also be marked perhaps as exhibits 2 and 3 respectively, that is the 11 paragraph affidavit dated 27 February is the second one, and the three paragraph affidavit dated 27 February in the Havecoat matter is the third one.

**** LINDSAY OLSSON RXN MR HERBERT

PN433

THE COMMISSIONER: Well, the second affidavit, Mr Nolan, was the one that we still had at the site where you required the adjournment in relation to that or you were going to notify me.

PN434

MR NOLAN: Yes.

PN435

THE COMMISSIONER: I'm assuming in relation to affidavit 1 and 3 that certainly you have cross-examined in relation to those - - -

PN436

MR NOLAN: That's right.

PN437

THE COMMISSIONER: - - - and are you satisfied that we can admit that second exhibit that Mr Herbert refers to as well?

PN438

MR NOLAN: Well, it's all on information and belief, that second affidavit. Perhaps it can be admitted subject to weight and I'll just need to take some more specific instructions some time this afternoon or this evening about that.

PN439

THE COMMISSIONER: Well, do we - are you intending to call Mr Weber?

PN440

MR HERBERT: Yes, he's outside now.

PN441

THE COMMISSIONER: And he is referred to in that second affidavit.

PN442

MR HERBERT: I could perhaps ask him to verify the details so far as they relate to his business.

PN443

MR NOLAN: To his company.

**** LINDSAY OLSSON RXN MR HERBERT

PN444

THE COMMISSIONER: Yes, in relation to paragraph 4.

PN445

MR HERBERT: Yes. I could do that while he's in the witness box.

PN446

THE COMMISSIONER: So are you content to proceed on that basis, Mr Nolan?

PN447

MR NOLAN: Yes.

PN448

THE COMMISSIONER: All right. Well, I'll mark - this witness has then dealt with all three of those exhibits.

PN449

MR HERBERT: Yes.

PN450

THE COMMISSIONER: Exhibit 2 is the affidavit as you've set out of 27 February which is in fact the 11 paragraph exhibit, and exhibit 3 is the three paragraph exhibit.

EXHIBIT #2 ELEVEN-PARAGRAPH AFFIDAVIT DATED 27/02/2003

EXHIBIT #3 THREE-PARAGRAPH AFFIDAVIT DATED 27/02/2003

PN451

THE COMMISSIONER: And that concludes the evidence of Mr Olsson?

PN452

MR HERBERT: Yes.

**** LINDSAY OLSSON RXN MR HERBERT

PN453

THE COMMISSIONER: Thank you, Mr Olsson?---Thank you.

<THE WITNESS WITHDREW [4.24pm]

PN454

MR HERBERT: I call Steven John Weber.

<STEVEN JOHN WEBER, SWORN [4.25pm]

<EXAMINATION-IN-CHIEF BY MR HERBERT

PN455

MR HERBERT: Mr Weber, your full name is Steven John Weber, spelt W-e-b-e-r; is that so?---Yes.

PN456

And your employment address is unit 6, 22 Palmer Place, Murarrie?---yes.

PN457

And you are a director of Tripart Proprietary Limited, one of the applicants in these proceedings?---Yes.

PN458

And, Mr Weber, are you a member of the Master Painters Association?---Yes.

PN459

And are you also a member of a sub-committee of that body put together for the purposes of engaging in enterprise bargaining negotiations?---Yes.

PN460

And, Mr Weber, in particular, can I ask you about a meeting that you attended which was also attended by Mr Ravbar of the CFMEU on the 20th of this month?---Yes.

PN461

Do you recall that meeting?---Yes.

PN462

And who else was there with you and Mr Ravbar?---Frank Sarri of A.F. Sarri Proprietary Limited and Chris Dennis from Higgins Coating.

PN463

Right. And what was your intention in being there?---To see if the union had come up with any further thoughts on negotiating for the EBA.

PN464

And what time of the day was that held?---1 pm.

PN465

Now - - -

**** STEVEN JOHN WEBER XN MR HERBERT

PN466

THE COMMISSIONER: Sorry, what time was that?---1 pm.

PN467

Thank you.

PN468

MR HERBERT: And had you been in attendance at earlier scheduled meetings that - meetings that were scheduled to be held with Mr Ravbar at which he didn't turn up?---Yes.

PN469

Now, on this particular occasion, when Mr Ravbar did turn up, did he bring with him anything in the nature of a document or a negotiating position - a written negotiating position?---No.

PN470

Did he put to you any details of any - - -

PN471

MR NOLAN: Well, I object to this, a leading question again. Perhaps the witness can be asked a proper question.

PN472

MR HERBERT: What did Mr Ravbar say to you in relation to the union's position on the matters that might ordinarily be found as conditions of a certified agreement? What did he say to you was the union's position on any matters at all that you can recall?---Mr Ravbar first started off with the fact that one of the points that we'd asked for at the other meeting that he had attended, which was sectionalisation, he said that they had looked at it and they weren't saying yes and they weren't saying no. He then went on to, and this happened more than once during the meeting, to make it abundantly clear that there be no negotiations with subcontractors until they had the builders put to bed, so to speak.

PN473

Now, no negotiation with subcontractors. Who do you mean by subcontractors?---Subcontract groups.

**** STEVEN JOHN WEBER XN MR HERBERT

PN474

And where do you fit into that?---We're one of those. We're the painters.

PN475

So a reference to subcontractors that you've just mentioned was a reference to, for example, painters?---Yes.

PN476

You, you being one of them?---Yes.

PN477

All right. So he said there was to be no agreement with yourself, with painters, until what?---Until they had the majority of the builders signed up on a memorandum of understanding.

PN478

All right. Did he put a proposal on the table for you to agree to?---No.

PN479

Well, what other discussion was there about conditions of employment that might form the subject of an agreement between you?---I brought up a point that some of the members had employees that were working under a ABN system and was there any room for movement in that, and the answer was no.

PN480

So you asked for some consideration of employees working under ABN numbers. There is a particular issue in the industry about that, is there?---Yes.

PN481

And he said the answer is no?---Yes.

PN482

Were there any other issues raised at that meeting, or put to you that were capable of acceptance?---No. Just the main point, I guess, was the sectionalisation and he couldn't say yes and he couldn't say no.

**** STEVEN JOHN WEBER XN MR HERBERT

PN483

Now, you've mentioned that Mr Ravbar said there would be no agreement with subcontracted groups, such as yourself, until they had signed off for the major builders. Did he tell you what was the - what was happening with the major builders, or where that was at, so that you understand where your arrangements might be?---At that point, Mr Ravbar said that the, and I can't remember the amount of builders, but he said they had a number of builders that had signed the memorandum of understanding and that there was, I think, approximately eight that were not signed, or that had not signed, or had indicated that they weren't going to sign.

PN484

Did he indicate how far in the future it was going to be that they had their sign off with the builders so that they could come and then agree with you?---No.

PN485

And - - - ?---No. There was no specific date.

PN486

Only that - - - ?---Or no - and no general indication.

PN487

And no general indication. So no specific date, no general indication as to when he would be able to come back to you and reach an agreement with you?---Correct.

PN488

But he did indicate that there were approximately eight who - of the builders that he'd identified who had not signed at that point?---Yes.

PN489

That's on the 20th of this month?---Yes.

PN490

Have you or anyone that's in your group that you know of heard from the union since that that position is now changed, that they are now in a position to agree with subcontract groups, despite the fact that the contractors may not have signed?---No.

**** STEVEN JOHN WEBER XN MR HERBERT

PN491

Have you heard back, for example, that the contractors have now signed and they can now make an agreement with you?---No.

PN492

Have you had any further contact, you or any member of your group that you know of - that's the EBA contractors committee - have you had any contact from the CFMEU that they are now in a position to progress an agreement with you, since 20 February?---Not with me directly, no, and not with any of the other contractors in the group that I know of.

PN493

Thank you. Now, just one further matter, Mr Weber, while you're there. Could the witness perhaps, for completeness, be shown the affidavit, which is exhibit 2.

PN494

I'll show you my copy. That's a stamped copy of the Commission. Could you look at paragraph 4 of that affidavit, and that says something about you and your business?---Yes.

PN495

Could you read that - - -

PN496

THE COMMISSIONER: I have two copies, Mr Herbert, if you - - -

PN497

MR HERBERT: Thank you. Thank you, Commissioner.

PN498

Could you read that carefully and could you confirm to the Commission that what's set out in that statement as having been attributed - statements attributed to you are, in fact, true and correct?---No. There's one - it's not just the Ellington Apartments. It's also River City Apartments. There's two jobs that those potential liquidated damages apply to.

PN499

So it's true as far as it goes, but it also applies to another - - - ?---Site.

**** STEVEN JOHN WEBER XN MR HERBERT

PN500

- - - another site as well?---Yes.

PN501

Are they being done in conjunction with each other, are they?---Yes, they are.

PN502

And so the - does the industrial action also affect that - delays in relation to that second site that you've mentioned?---Yes, they do.

PN503

All right. So where one reads, "Work to be done at the Ellington Teneriffe Apartments", that should also include reference - - - ?---Read "River City Apartments."

PN504

- - - reference to River City Apartments as well?---Yes.

PN505

Thank you. But, otherwise, that paragraph is correct?---Yes.

PN506

That's the evidence-in-chief of Mr Weber.

PN507

THE COMMISSIONER: Can I just clarify there, that $19,000 per day, is that per site?---No.

PN508

It's a cumulative figure for both of those two apartment blocks?---Correct. It's $14,000 per day for River City Apartments and $5000 a day for the Ellington Apartments.

PN509

MR HERBERT: Otherwise, that's the evidence of this witness, thank you, Commissioner.

PN510

THE COMMISSIONER: All right. Thank you. Mr Nolan?

**** STEVEN JOHN WEBER XN MR HERBERT

PN511

MR NOLAN: Commissioner, could I suggest, having regard to the time - it's now 4.30 - that this witness's cross-examination be stood over to tomorrow morning? We obviously - and this is the first time we've heard evidence directly from this witness. I need to get some instructions about that. We need to consider whether or not we'll get our own affidavit to put on to respond to any of the things that have been said. Having regard to the discussion that we've had earlier and the fact that the employers have had since the 18th to put this application on, or even on the most charitable view to them, the afternoon of the 20th, the advantage is all one way if we're not given an opportunity to consider this material and have a proper opportunity to respond to it. And we really will need overnight to do that and to come back and to make a reply.

PN512

THE COMMISSIONER: What do you say to that, Mr Herbert?

PN513

MR HERBERT: Well, Commissioner, for a start, it's just not true. I'm sorry. I don't know where my friend keeps getting this from.

PN514

MR NOLAN: From your evidence.

PN515

MR HERBERT: But I repeat, Commissioner, section 170MP only operates to make the action unprotected after the action has commenced. My friend read from MW before, because he wants this to be an MW application but it isn't. MP is phrased in different terms. It only applies unless the organisation has, before the person began to - begins to engage in industrial action, genuinely tried to reach agreement. And you don't know that until they begin. If you bail them up the day before, the allegation would be made - if on the 25th, a section 127 application had been made, the allegation would be made, you don't know whether they're not genuinely going to try and reach an agreement before they begin, because they haven't begun yet.

**** STEVEN JOHN WEBER XN MR HERBERT

PN516

And 170MP governs this matter. MW, as my friend pointed out, is marginally different. It contains a reference of that kind, but it also contains a reference to planning industrial relation or - industrial action or organising or intending to organise. So that MP is the section which qualifies the protected industrial action provisions and makes action which would otherwise be protected unprotected. But it only, as it were, kicks in or applies after the action has commenced.

PN517

So this suggestion that we could have brought a 127 application - Coal and Allied says that we brought a 127 application on the 18th or the 20th, we could not prove that the action would be unprotected, because we would have to say something might happen after it begins - well, a state of affairs might exist in a week's time after it begins, and we would be met with the suggestion, well, it may and it may not, but that's not enough for a 127, and that's what Coal and Allied says. So it's not true to that this application could have been brought before, because you don't know until it begins.

PN518

THE COMMISSIONER: And you're basing that on the definition of industrial action?

PN519

MR HERBERT: Yes. But the industrial action has - doesn't begin until it begins, as - and there is a wealth of authorities - - -

PN520

THE COMMISSIONER: The reason I ask you that is because in 127 it talks about - - -

PN521

MR NOLAN: Pending and probable industrial action.

PN522

THE COMMISSIONER: - - - pending, threatened - - -

**** STEVEN JOHN WEBER XN MR HERBERT

PN523

MR HERBERT: Yes, yes. But Coal and Allied tells us that, because section 170MP says that 127 order doesn't apply to protected action, the Coal and Allied decision - I can give you a reference to the passage of Coal and Allied that says this. And my friend referred to it quite correctly earlier. It's at - it's under the section 2.5.7 in the internet copy that I've given you, and at the end of that section was the passage my friend was adverting to earlier. It's page 19 of that print copy - internet copy I've given you, and it's the paragraph in the middle of the page:

PN524

It follows, in our view, in exercise of a question of 127, an order should not be made in relation to industrial action that is considered to be protection action or plainly likely to be protected action.

PN525

So if, in prospect, it looks as if it will be protected action, there is no point in making a 127 order because it will be of no effect because under MT it can't apply to a protected action. If action is looking like it is going to be protected when it is taken, a 127 order, on this authority, should not be made. If, however, one waits to see when it is taken and it turns out that it was not preceded by the appropriate actions on the part of the maker of the action, then 170MP says it is not protected, despite ML. And that's something that one has to wait until it occurs. I mean, one could take a punt a day or two before and immediately be in a position of being met with an argument of that kind that you can't bring a 127, or else some sort of artificial or cosmetic remedial action might be sought to be taken to try and restore some protection to the action.

PN526

But in those circumstances, there is simply no basis or a very tenuous and probably an incorrect basis for bringing 127 proceedings up until yesterday, and you've heard the evidence. Mr Olsson said the decision was taken at 6.30 yesterday morning when the action started at 6 am. Now, there has been no delay. The material was filed and served yesterday. The union has had it for 24 hours; that's more than most people get under section 127 applications. They've had the material, they've had the affidavit of Mr Olsson. My learned friend may have got it when he stepped off the plane today but that's not my client's fault. And it shouldn't be something that penalises my client. So it's not - - -

**** STEVEN JOHN WEBER XN MR HERBERT

PN527

THE COMMISSIONER: Did Mr Olsson say the decision was taken or the application was made?

PN528

MR HERBERT: The decision was taken he said at 6.30 and the application was filed during the day. The Commission records will show when it was filed: that's when the actual decision was taken to bring proceedings. Mr Olsson said because his clients had been told, "If they were good boys, things would happen," and when it turned out the action did occur, obviously "good boys" was out the window, I think was the expression he used. "Being good boys", that is, refraining from taking proceedings, didn't work and didn't protect them, and that's something again one can only know after the action has commenced. And within 30 minutes of the commencement of the action, the decision was taken. My instructing solicitor certainly weren't around filing the material at 6.30 in the morning, but the Commission records will show that it was filed during the day yesterday.

PN529

THE COMMISSIONER: No. I meant the application prepared at that time.

PN530

MR HERBERT: The application certainly wasn't prepared at that time either. The application was certainly prepared prior to that to be filed in that time and there was - but again one doesn't know until action actually occurs in relation to these matters. And as one sees, there was a group that was initially included and subsequently another employer was added once it was apprehended that they were caught in the net. There are a much larger number of painters in Queensland than - or members of the organisation than are applicants in these proceedings because the only applicants - speaking on behalf of the Master Painters Association, the only applicants of these proceedings are those members of the association who have been the subject of strike action. It's a very small subset of a large group.

**** STEVEN JOHN WEBER XN MR HERBERT

PN531

Those members of the Master Painters who received notices of this kind on the 18th have not brought applications under 127, because it's turned out not to be necessary. My friend says on the other hand they all should have done it. All umpteen dozen of the members of the organisation should have made application on 18 February because they received a notice from the union. And as it turned out, there are now in fact only seven of them or eight of them that are eligible candidates, because they're the only ones who can say that there will in fact be action and unprotected action at that because it's not been preceded by the relevant activities on the part of the union.

PN532

So the premise of my friend's suggestion that this application could have and should have been brought a week before it was is false. And the suggestion that this matter should go off on some fairly lazy program so that - and the suggestion that there's no reason why cross-examination of this witness can't be undertaken - Mr Ravbar I note has been sitting listening to all of this evidence that has been given by Mr Olsson and Mr Weber, and I'll be saying something about that later. There is no reason why he can't give instructions to my friend in three minutes flat in relation to that issue. This has all been done at great cost to my clients not to the CFMEU. In this respect, the matter ought to proceed for such hours as the Commission has available this afternoon.

PN533

MR NOLAN: Well, it's quite wrong in our submission to suggest that somehow or other they were prevented from making any application. Section 127 says:

PN534

If it appears to the Commission that industrial action is happening or is threatened, impending or probable in relation to the thing specified an application can be made.

**** STEVEN JOHN WEBER XN MR HERBERT

PN535

Now, when one can imagine that if an application had been made in the timely fashion back on the 18th or at the latest on the 20th, and the union came along and then said, "Oh, no, we're prepared to enter further negotiations", the sort of scornful rebuke that would have attracted. It would have been said, "Oh, that's just a colourable attempt to get out from under the inevitable consequences of your conduct in trying to avoid the section 127 application." The employers wouldn't have meekly accepted that and walked away and said, "Oh, well, too bad, we've been snookered there. We'd better wait until the strike starts". I mean it would require extraordinary naivety to accept that that would be the case if it didn't suit them to say so.

PN536

The fact of the matter is they could have made the application on the 18th; they could have made it on the 20th. They waited until the last minute to make it. And now they want to get every tactical and procedural advantage that they can wring out of the Commission as a result of that. All we're asking for is an opportunity overnight to consider this material and to consider whether or not we put an affidavit on and what we do. Mr Herbert can make all the submissions he likes about the fact that Mr Ravbar has been here and anything else that is relevant to the proceedings tomorrow morning.

PN537

It's hardly expecting too much of the Commission, or of the applicant in this case, to require that we be given some modest measure of procedural fairness in this having regard to the fact that they could have made - and despite what Mr Herbert says, they could have made this application days ago. Why should they wait until it occurs because the industrial action - when one looks at the definition of industrial action, one sees that it's very widely cast. When one comes back to 127, 127 is triggered if it appears to the Commission that the industrial action is happening or is threatened, impending or probable.

PN538

If what they say is true today, it was just as true back on the 18th as a probable or pending or likely, and nothing that can be said can avoid that logical proposition in submission. It's not to big an ask in our submission for us to have overnight to absorb this material, and make some endeavour to come to grips with it, and make a decision whether or not we put evidence in reply on. If we're not given that slight indulgence, as I say, we just suffer even more procedural disadvantages as a direct result of the conscious decision made by the employers in this case to file the application when they did; namely at the eleventh hour.

**** STEVEN JOHN WEBER XN MR HERBERT

PN539

THE COMMISSIONER: I'll consider that issue in a moment.

PN540

MR NOLAN: Thanks.

SHORT ADJOURNMENT [4.47pm]

RESUMED [5.03pm]

PN541

THE COMMISSIONER: Did you have something you wanted to say, Mr Herbert?

PN542

MR HERBERT: Yes, Commissioner. We discussed the matter and to relieve you of the necessity to make any decision about the matter, the parties are now agreed that we won't press the question of cross-examination at this point unless you had another view about the matter - a firm view about the matter. But we would ask for, if possible, the matter resume at the earliest available time tomorrow.

PN543

THE COMMISSIONER: All right. So do you intend to perhaps bring further evidence tomorrow morning?

PN544

MR NOLAN: Well, I'd better have some discussions about that now. I'm really in your hands about that but I really - - -

PN545

THE COMMISSIONER: Well, the reason I ask that is it will assist with the programming of tomorrow as to how much time you'll require.

PN546

MR NOLAN: Yes, well, we won't need a lot of time but I'd appreciate - frankly I'd appreciate a 10 o'clock start - - -

**** STEVEN JOHN WEBER XN MR HERBERT

PN547

THE COMMISSIONER: Can't do 10 o'clock - - -

PN548

MR NOLAN: - - - because if we're going to put some material together, we've got to - - -

PN549

THE COMMISSIONER: - - - Mr Nolan. We've already got a matter set down at 10 so I was looking at 8.30.

PN550

MR NOLAN: 8.30. I get up a lot earlier than that but - it's 9.30 my time, I'll have had breakfast well and truly by then.

PN551

THE COMMISSIONER: Well, we could perhaps put some pressure on the 10 o'clock matter and bring it on at 11 which is 10 o'clock your time, isn't it?

PN552

MR NOLAN: Yes. No, it's 12 o'clock our time.

PN553

THE COMMISSIONER: 12 o'clock.

PN554

MR NOLAN: So you say you'd start at 11 or start at 10.

PN555

THE COMMISSIONER: Start at 11.

PN556

MR NOLAN: Start at 11.

PN557

THE COMMISSIONER: Yes.

PN558

MR NOLAN: Start this matter at 11?

**** STEVEN JOHN WEBER XN MR HERBERT

PN559

THE COMMISSIONER: Well, the only alternatives I've got is starting at before 10, so I'm happy to start at 8 or 8.30 otherwise - - -

PN560

MR NOLAN: Well, my preference would be to start at 11 and that gives us an opportunity to put together some material in the morning if we have to do that and - - -

PN561

THE COMMISSIONER: If we start at 11, we've got three very short agreements at 2 and we've got another matter at 3.30.

PN562

MR NOLAN: Oh, we'll be finished before - well before 2 if we start at 11; well before. Whatever - well, I don't want to speak for Mr Herbert, but I'm absolutely confident we'll be finished - - -

PN563

THE COMMISSIONER: How much time do you have in submissions, Mr Herbert?

PN564

MR HERBERT: I've made half of them already, Commissioner.

PN565

MR NOLAN: Time and time - - -

PN566

THE COMMISSIONER: That's why I'm pinning you down now.

PN567

MR NOLAN: Repeatedly, yes.

PN568

MR HERBERT: Yes. Well, I need to: you're not getting the message. Commissioner, I would think - - -

**** STEVEN JOHN WEBER XN MR HERBERT

PN569

THE COMMISSIONER: I hope that wasn't directed at me, Mr Herbert.

PN570

MR HERBERT: No, no, I was - - -

PN571

MR NOLAN: Just a bit of sledging at the bar table, Commissioner.

PN572

THE COMMISSIONER: Because I have got all night to think about it, Mr Herbert.

PN573

MR HERBERT: No, just bar table sledging, Commissioner. I would think no more than 10 or 15 minutes at the outside would be my submissions. That would be the long version, but the question of evidence, we don't know whether evidence is to be called or not. And it may well be if there's any challenge made to the evidence that's been given so far here that some very short extra evidence might need to be called on behalf of the employers, but I think all up it would - that extra evidence should occupy no more than another 10 minutes or so.

PN574

THE COMMISSIONER: All right. Well, if we start at 11 the process would be that I'd be sitting through then.

PN575

MR HERBERT: Yes, that's - - -

PN576

THE COMMISSIONER: That we wouldn't be taking a luncheon break.

PN577

MR NOLAN: That's fair enough.

PN578

MR HERBERT: Yes, that's fine.

**** STEVEN JOHN WEBER XN MR HERBERT

PN579

THE COMMISSIONER: All right. Well, we'll adjourn and we'll reconvene at 11 o'clock tomorrow morning. And if, in fact, you intend to bring evidence, would you have affidavit material to me before then. Would that be your plan?

PN580

MR NOLAN: We will make every effort to do that if it's okay.

PN581

THE COMMISSIONER: All right. Thank you.

ADJOURNED UNTIL FRIDAY, 28 FEBRUARY 2003 [5.09pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AFFIDAVIT OF LINDSAY OLSSON DATED 26/02/2003 PN35
LINDSAY OLSSON, SWORN PN137
EXAMINATION-IN-CHIEF BY MR HERBERT PN137
CROSS-EXAMINATION BY MR NOLAN PN164
RE-EXAMINATION BY MR HERBERT PN384
EXHIBIT #2 ELEVEN-PARAGRAPH AFFIDAVIT DATED 27/02/2003 PN451
EXHIBIT #3 THREE-PARAGRAPH AFFIDAVIT DATED 27/02/2003 PN451
WITNESS WITHDREW PN454
STEVEN JOHN WEBER, SWORN PN455
EXAMINATION-IN-CHIEF BY MR HERBERT PN455