C2003/6530, Transcript of Proceedings [2004] AIRCTrans 1006 (19 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6289
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2003/6530
C2003/6532

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

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

RESTRICTIONS IN TORT

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

MELBOURNE

10.12 AM, THURSDAY, 4 MARCH 2004

Continued from 3.3.04

PN920

THE VICE PRESIDENT: My apologies for the delay. Yes, Mr Maddison.

PN921

MR MADDISON: Thank you, your Honour, and thank you for the time overnight to compose some thoughts. Your Honour, I may start with, I suppose, your comments or observations that you put at closing yesterday afternoon, and if we can address those observations in this way. Your Honour, you would be aware of the decision of Commissioner Lewin in the Southcorp matter and comments that he made in respect of issuing orders, not necessarily being a way of resolving underlying disputes. And leaving aside Mr Tuck's, if I can characterise them as quite florid, submissions about the state of the disparity of the parties and where they are all at, it would be our submission the evidence doesn't really support that, but there are a number or at least a couple of issues that the parties have a view about and never the twain shall meet.

PN922

If I can just go through, I suppose, what those issues are. In respect of the Bondeck issue and relocation of employees working on that surface in temperatures as they approach 32, the union, through Mr Bolta, would seek an independent assessment of that and seek to get a WorkCover inspector down there to have a look at the situation and seek to go through the issues and seek to come to some sort of arrangement or agreement in respect of working on that, on the Bondeck, given the input of a WorkCover inspector.

PN923

And in respect of the - what the site meetings or mass meetings, whichever way you want to describe them, but which have been - on the evidence, it will be our submission, there have been relatively few and they have been for very legitimate reasons; for instance about informing people about the table, the number of incidents about the tables and the cable on the Bondeck, certainly, we would say, the evidence supports the view that they weren't about any particular matter but serious matters and legitimate matters.

PN924

The situation at the workplace at the moment is that the site safety committee is made up of Grocon personnel and some union personnel. The Grocon personnel, I suppose, are in the position where they are able to call toolbox meetings and the evidence is that they do that for certain groups as they deem required and as, I suppose, Mr Tuck has pointed out to the union witnesses, the union members of that safety committee don't have the same luxury when they feel there is a certain issue that needs to be communicated to the whole site, they do not have, necessarily, any powers, unless Grocon agree, to be able to do that.

PN925

Now, we would say that it would be reasonable that in certain instances and certain circumstances that there can be an ability to do that and we, I suppose, would seek some sort of, perhaps, a recommendation or setting down some sort of - that could be up to - there can be a meeting of a half hour duration or a meeting every couple of weeks or more or less, as required, and Grocon, I suppose, perhaps, using a phrase about their agreement, cannot be unreasonably withheld or if there is just the ability to have it in certain circumstances.

PN926

THE VICE PRESIDENT: But the difficulty at the moment, as I see it, is - well, there are two elements to it and my comments are impressionistic in the sense that I have read the material. I have not yet done the analysis of contrasting what one witness says about a particular event with the other witness and making any assessment of where that lies - - -

PN927

MR MADDISON: Yes.

PN928

THE VICE PRESIDENT: - - - but I can accept that, in relation to a number of these instances, they have been precipitated by - I will characterise it this way, but it may be a little bit harsh, but - by management failure. There are two particular issues that come to mind. One is in relation to the Bondeck. The evidence is that there have been requests for information about radiated heat from the Bondeck and reflection, to back-up the assertion that there was an 80 per cent reduction.

PN929

In relation to the incident on 16 January there was evidence that the previous day there had been a similar communications breakdown where persons in the immediate vicinity weren't advised of the incident before the Grocon's Health and Safety Officer was advised. So I can accept that in relation to some of these issues the fault or the trigger mechanism doesn't lie with the CFMEU. The difficulty I have that, is that your suggestion that there be some sort of scope for a recommendation for meetings with some frequency, is that the site safety committee doesn't seem to be operating as a committee, at all, it is operating as two separate parts, and the union part pretty much determines which it wants to do and there doesn't seem to be any discussion with the management representatives on that committee.

PN930

My concern is about process. I think there is some merit in dealing with the Bondeck issue in the manner you have suggested. I think it is unfortunate that the parties weren't able to discuss that and reach an agreement on that, but I recognise that the fault isn't all one way traffic. What I want to look at is, and I am happy to entertain whatever suggestions you have for dealing with the specific issues, but two that probably most immediately spring to mind are the communication question, though that would seem to have been resolved in recent times - - -

PN931

MR MADDISON: I was going to address that, but yes.

PN932

THE VICE PRESIDENT: Yes. Well there is that issue and the Bondeck is the more discrete one. But the agreement and the VBIA set up a process for the resolution of issues like this and what is to take place and how it is to work through, and the difficulty with recommendations is that the parties have an agreement about how these issues are supposed to be dealt with and I acknowledge that a 127 order is not always going to be the most effective way of bringing about some sort of attitudinal change, but there has to be an alternative method. I don't think the answer can be, well, it might not be the most effective one, therefore we are not going to do it, there has to be another way of addressing it.

PN933

Now, I think that comes down to some indication that there is a preparedness on the part of the people on the site to follow those procedures and to - and perhaps the Bondeck one is the most obvious one where we can use that as an example. If the procedure had been followed initially we would already have the WorkCover inspection report and we could have someone measuring radiated heat on the Bondeck. From the material there is a difference, they talk about reflection. I am not sure whether that encompasses radiated heat but - - -

PN934

MR MADDISON: I think they are two discrete issues, is my understanding, at least, your Honour about the reflection and radiated heat.

PN935

THE VICE PRESIDENT: No, on the material, I think that is a fair comment. My observation is that there is a process laid down in these agreements. I don't want to put an overlay on that, at this stage, I want the parties to jointly indicate that they are going to follow that process or at least give me some assurance that there is some prospect of that.

PN936

MR MADDISON: I would just - I understand what you are saying, your Honour. I just make a couple of comments, I suppose. Firstly, given the nature of these kind of proceedings, it is in the applicant's interest to highlight the areas of difference rather than areas of agreement, and what you have got in front of you is, I suppose, some over a years worth of incidents on a vibrant construction project, given a certain history. And I just say that by way of background because most things that are dealt with on a daily basis at the site are done by agreement and work proceeds as normal.

PN937

THE VICE PRESIDENT: And there is some evidence to support that. There is some material behind your witness statements that shows there has been consent given to changes in hours at different times.

PN938

MR MADDISON: Yes. So the unfortunate nature of these kind of proceedings is that you get a jaundiced view of the reality of the project; and I would also make, in relation to the site safety committee, that the areas of difference have been highlighted but, as I understand it, most things are done by agreement and certain actions need to be done and people pointed out, be it Grocon or the union representatives, and it is done in an orderly way, and that is what happens on most occasions, other than, I suppose, these couple of areas of difference.

PN939

So - and Mr Tuck has conceded that Grocon haven't necessarily followed the procedures, either; and I suppose I am just trying to deal with where we are today and trying to move forward, and perhaps in an accelerated kind of manner, and trying to deal with some of the areas of differences which have been highlighted. I was talking - I gave some, I suppose, suggestions about safety meetings and having some mechanism of informing people about matters in a dangerous environment that they are working in that people should be aware about, because it appears that there is no mechanism other than when Grocon, how and when they choose to do it.

PN940

In respect of the communication of incidents, given Mr Brinzi's evidence, hopefully that matter may now be rectified and that not all incidents have to go to Mr Brinzi before communicated further; noting a recent incident where that process fell down some bit. In relation to the working hours that the union are taking a pig-headed approach or whatever, I think, on a fair reading of the material the evidence is that there is not, very rarely is there a rejection of the proposals, the complaint sometimes is that it takes a little bit longer than they would like to get agreement, and I suppose the - the agreement deals with Grocon's rights, I suppose, in relation to that, to pursue the matter faster and quicker, if that is their real complaint.

PN941

The other issue, I suppose, is a big more vexed, the de-watering issue in the calculation for purposes of inclement weather provisions. Now, on the evidence, Grocon say one thing that we don't include the de-watering time for the purpose of calculating when the four hours accumulate, the fours is up the people can go home; although Mr Browne gave some evidence of recent events where they appear to have done that. But, in any event, clearly there is a difference of view in relation to that.

PN942

Now, your Honour, we say that that is not particular to that site, that it is an industry issue, and there is some evidence before you that the matter is being addressed through the VBIA consultative committee. Your Honour, there is also meetings between the CFMEU and the MBA proposed next week in respect to that issue; and it may be that through those processes that the broader industry issue about the de-watering hopefully will be resolved, because it is an issue broader than Grocon, and I know Grocon rely upon one decision from the disputes brought in relation to RACV.

PN943

Now, there is not evidence before you about a more recent decision but certainly Mr Van Camp was involved in it and knows well about it because he gave submissions in relation to that but, in that decision the disputes board, at that RACV site, in similar circumstances about the de-watering, came up with a non-decision and said that this is effectively an industry thing and until the industry works it out we are not going to necessarily decide on this matter. So I just point that out. It doesn't necessarily assist in the resolution of the issue there but it is an industry issue and the industry is looking at it, generally. That is what the union has to say in relation to your observations, your Honour.

PN944

I was going to make some submissions in respect of the orders that are being sought, and I will try and keep those brief, your Honour. Your Honour, the applicant, in this matter, as the Coal and Allied decision has indicated, the onus of proof of, although no strict onus applies, but they do have the onus of demonstrating that there is sufficient evidence to provide that an order be made. Now the company are making an application based upon what they say is an intermittent history.

PN945

Now, the evidence before you, from Mr Coker, is that this year there has been two hours lost. Now, knowing the application was lodged in the beginning of December, we would say that the threat is not to the requisite level which would persuade you, in our submission, to give such orders.

PN946

THE VICE PRESIDENT: So it is the third limb of the jurisdictional requirement that you challenge? You say that there is no - the industrial action is not probable?

PN947

MR MADDISON: Is not threatened and pending or probable, and I suppose probable - - -

PN948

THE VICE PRESIDENT: Yes, I think it is only probable that Grocon is arguing, but - - -

PN949

MR MADDISON: Yes, and we say it is not probable.

PN950

THE VICE PRESIDENT: So the other two limbs are not contested? That Grocon is affected etcetera?

PN951

MR MADDISON: It would certainly be our submission that it is not threatened or impending, given that - - -

PN952

THE VICE PRESIDENT: Yes, just a moment. No, I meant that you are not contesting that the person making the application has standing - - -

PN953

MR MADDISON: Okay. Sorry, your Honour.

PN954

THE VICE PRESIDENT: - - - or that the certified agreement regulates the work, etcetera. You are focusing on the contention that there is industrial action - or industrial action is probable, which, I understand that is the essence of Grocon's contention that there is a probability of industrial action on this site.

PN955

MR MADDISON: In respect of their own employees, yes, your Honour. In respect of the subcontractors that they have attached to annexure A:

PN956

Although the subcontractors may be regulated by an award or certified agreement...

PN957

We will make submissions about there is just no evidence about when people are being paid from the subcontractors and what may or may not have been industrial action, even in the past. But we say they do have standing to bring the application under 127(1)(c) and they are a person directly affected, under subsection 2. But we do say that, on the evidence, that no industrial action is probable. We can provide a copy of a Full Bench decision and I this will be the only decision that I will be providing, your Honour. It is another Full Bench decision of CBI, not the CBI Full Bench that my friend refers to in his outline of submissions.

PN958

Your Honour, if you can have regard to - it should be on page 4 of 7 of the Internet version that I have provided, at paragraph 7. It refers to a letter, 24 May, signed by Jim Davidson, imparting the resolution of a mass meeting, direct threat to engage in industrial action. At paragraph 9 the Full Bench refers to Coal and Allied and in the extract from Coal and Allied, the last sentence in the italics, said:

PN959

The direction under section 127 must be that the industrial action stop or not occur, hence the order specific to the industrial action found to be happening or to be probable for the purpose of attracting the jurisdiction...

PN960

It then goes on in paragraph 10 and it refers to the decision, which I am sure you are aware of, of his Honour Marshall J in the MTIA matter about being specific again to the industrial action. The industrial action found to be, in this instance, probable. Then if you go over to paragraph 12 - - -

PN961

THE VICE PRESIDENT: Is it the proposition here that the order travelled beyond the threat?

PN962

MR MADDISON: Well, your Honour, what we would be saying is that, and it refers again to the other Full Bench CBI, that it would be our submission that if you found, as a jurisdictional requirement, that industrial action was probable, the orders need to be tailored, if you like, to the industrial action you found to be probable not industrial action at large.

PN963

THE VICE PRESIDENT: Yes.

PN964

MR MADDISON: If you found, for argument's sake, that industrial action was probable about the Bondeck matter then the orders would need to be confined to that, that the other CBI Full Bench doesn't stand for the proposition that because certain things have happened in the past you can make orders at large. It would only support a proposition that further industrial action about a certain matter was probable, based on that history. That was, in our submission, is the import of this decision and the import of the word "the" instead of "any" in section 127. And we would say that you would need to make certain findings in respect of the various categories, if you like, that the applicant in this matter complain about.

PN965

Your Honour, in respect to those matters, in relation to the Bondeck and removing people prior to 35 degrees, now the evidence is a bit unclear about whether it has - if it does fit under the definition of industrial action because it appears people have been paid. Now, we would also say that in the VBIA under clause 26(1)(ii), which Mr Tuck took the union witnesses to, that prior to 35 degrees people can be relocated, and it doesn't require agreement, it doesn't require consultation. Further to that, we would say that under section 26 of the Occupational Health and Safety Act that somebody in Mr Bolta's position has the right to remove people from immediate risk that they consider.

PN966

Now, we would say that the relocation people off the Bondeck in temperatures less than 35 degrees does not constitute industrial action; and further, we would say, given what we have put to your Honour today about involving a WorkCover inspector that you could be satisfied - if you are against us on those matters that you can be satisfied that no industrial action was probable in respect of that matter.

PN967

In respect of the site meetings or the meetings which, in the evidence before you, in our submission - and I won't go into too much detail because you have already had some submissions in respect to the safety meetings - we would say that that there is no matter currently before you which you can say there is threatened any meetings about. A couple of issues about the table; it seems to have been cleared up about the siren, it seems to have been resolved. There are no threatened matters where - - -

PN968

THE VICE PRESIDENT: But they are not arguing a threat - - -

PN969

MR MADDISON: I am sorry, probable - - -

PN970

THE VICE PRESIDENT: They are contending that action is probable - - -

PN971

MR MADDISON: Yes.

PN972

THE VICE PRESIDENT: - - - and the contention is that it is probable having regard to past failure to follow agreed procedures. That is the essence of the argument as I understand it.

PN973

MR MADDISON: Yes. I understand that, your Honour, and I suppose all we say is that - - -

PN974

THE VICE PRESIDENT: So whilst the table issue might be resolved - - -

PN975

MR MADDISON: Yes.

PN976

THE VICE PRESIDENT: - - - that is not to say there won't be other issues that will arise where, on past behaviour, it is put that they won't follow the procedures in the agreement and there will be a difficulty.

PN977

MR MADDISON: Yes, and I understand that is what they say. If I can just traverse the - without having to go back to these matters and do the discretionary matters separate. In relation to that, we would say as a matter of discretion, even if you did come to that conclusion, that the meetings that have been held could not be categorised as illegitimate, that there have been certainly bona fide matters and serious incidents which have resulted in the workforce being informed about matters that have happened on the site. We say that that is not illegitimate and would warrant you using your discretion not to grant any orders.

PN978

In relation to the working hours matter, the company says the union's pig-headedness, or whatever phrase was used, we would say that on the evidence before you - and I have made submissions about that, your Honour - that with the complaint, it is not that there is a denial or a rejection but the yes answer that they want comes a little bit too slow and we say that that is not industrial action and, on the evidence before you, there is no industrial action probable in respect of that matter.

PN979

In relation to the de-watering, we say, your Honour, that again it is a matter that, on the evidence before you, it is unclear on what occasions it may or may not have been industrial action, given the evidence. The other thing we would say in respect of the de-watering issue again, Mr Tuck took the union witnesses to the VBIA in clause 26.1.4 where it says:

PN980

It is agreed by the parties that prior to an employee leaving the site due to inclement weather, consultation shall take place between union representatives and site management.

PN981

And the evidence of Mr Bolta was very clear in relation to that, that there would be consultation in relation to those issues but agreement not reached. We would say that there does not need to be agreement and again that this is a matter contemplated through Grocon agreement with the union through the incorporation of VBIA and would not be industrial action as defined.

PN982

In relation to the other species of industrial action that the applicant complains about, the statewide stoppages or political stoppage, depending upon your persuasion, I suppose, how you categorise these things, but what we would say in relation to that, that - and I don't have copies, unfortunately, but there is a Federal Court decision of French J, which goes to the effect that the Commission should be, I suppose, slow to move and issue orders in relation to interfering with people's political rights, I suppose, to express a view.

PN983

THE VICE PRESIDENT: Was that a case involving injunctive relief in relation to a 127?

PN984

MR MADDISON: Yes, it was, your Honour, and - - -

PN985

THE VICE PRESIDENT: Are you sure it was French J? Lee J ring a bell?

[10.43am]

PN986

MR TUCK: It is French J in Lang who talks about political action. The issue I think, your Honour, just to interpose, was whether or not that political action was in fact industrial account.

PN987

MR MADDISON: Yes.

PN988

MR TUCK: He found it was.

PN989

MR MADDISON: Yes. He found that it was, and I don't take issue with that. But, as a matter of discretion, there was comments made about the Commission - - -

PN990

THE VICE PRESIDENT: In any event, I will read the judgment.

PN991

MR MADDISON: I can get a copy of that, your Honour, provided to yourself and my friend, who seems to know the decision I am referring to.

PN992

THE VICE PRESIDENT: Certainly. I am not sure he agrees that it has quite the same character that you are seeking to ascribe to it, but - - -

PN993

MR MADDISON: That seems to be the case with any decision, I think, your Honour. You put whatever gloss suits your argument seems to be the normal course of events. those are the submissions about why orders should not be made, and just also, just there is a matter of discretion. I have mentioned some discretion matters, but in the final matter of discretion, in your decision in Patrick Stevedores talking about the conduct of the parties, and Mr Tuck has indicated perhaps some fault can be levelled at his client, and we would say that they have come here without doing things that they can do under the agreement which could have resolved some of these matters, and we say that the conduct would be a consideration in your discretion.

PN994

If you are against us on all those matters and you decide that the order is to be issued - can I just take you - I just want to add another couple of comments in respect of the draft orders that have been kindly provided. I take you to parties bound, your Honour, and make firstly some submissions about the union and their officials, and I don't make these submissions to distance ourselves from the membership at the project, but there is just simply no evidence about any officials, of sufficient evidence of the officials or the union doing anything. The evidence is all about what happens on the site and their personnel down there.

PN995

Similarly with the CEPU; the same submission would apply, that there is just really a lack of any real evidence about those matters. In relation to the annexure A, the subcontractors, there is certainly perhaps some evidence that these people were involved in things that went on, but whether or not their individual employers paid people or agreed for people to attend any meetings or what they do in relation to de-watering, or what the steel fixer employer does in respect of Bondeck, there is just no evidence of any of those matters. And it may be Grocon have a particular view and that view has been made known to the Commission, but what, for instance, Otis Elevator Company Pty Limited's view on these matters is we just don't know.

PN996

We would say that any order, if you were to grant the order, could only be confined to Grocon and their employees. In respect of 4, we made submissions about that the order should be tailored to any industrial action you would have found probable in respect to certain species or categories that the applicant has complained about it, and we just point out that the Federal Court has previously read down broad orders, and, your Honour, we make the comment that the decisions say that people need to be aware of what they need to do to be complying with an order, and your Honour is in a position to make it very clear about what it is, rather than an order at large which is being sought currently.

PN997

THE VICE PRESIDENT: Does that mean an order could be issued prohibiting any action which is in contravention to the dispute settlement clause in the certified agreement?

PN998

MR MADDISON: What we would say in relation to that is that the evidence is not that - the evidence is only - before you is in respect of certain matters and there is no evidence that other things, and I think Mr Coker gave some evidence that Grocon had taken at least one thing to the disputes board, and he wasn't quite sure what that was. So it appears that not all that is going on is in contravention of their - and we would still say that it needs to be, in our submission, tailored to - - -

PN999

THE VICE PRESIDENT: I wasn't suggesting that everything that has been going on is in contravention. But does it come down to how you characterise the probable action?

PN1000

MR MADDISON: It may well. It may well. The company, in Mr Coker's original statement, and, sir, that is in paragraph 38 of his first statement, talks about five categories. So I suppose that is - and he uses the word "characterise", so taken from the applicant's material about how they characterise what is going on and making submissions in respect to that.

PN1001

THE VICE PRESIDENT: Yes. But I suppose my point is ultimately it is how I characterise it that - - -

PN1002

MR MADDISON: I appreciate that.

PN1003

THE VICE PRESIDENT: And I take the point that there needs to be the relationship between however I characterise it and the order that is issued.

PN1004

MR MADDISON: The other point I would make in relation to that, part of the problem may arise that people might not necessarily know at the time whether they are in breach of the dispute settlement procedure. If we take some of the evidence in relation to de-watering, there appears to be some evidence before you that sometimes people get paid and sometimes they don't. Now, a person might not necessarily know that they have breached the dispute resolution procedure until the following week when their pay comes in. But at the time when they are doing what they thought was right, they may well have been in breach of an order that was drafted in that fashion.

PN1005

Turning to the order as sought, in paragraphs 4.3, 4 and 5, specifically, made submissions that there is just simply no evidence about the CFMEU doing anything, and we would say that that should come out, including the written notice that is sought. There may be some notices upon seeking a notice like that if there is evidence that was that the union, through their officials who were procuring and encouraging certain action, but in the absence of that we would say that there is no justification to seek that. Made submissions about paragraph 5, about defining industrial action, and whatever you may find is probable.

PN1006

In respect of service, we say that this matter should be an onus on the applicant to serve people who are bound by an order and not - and contract that out to the unions. We would also say, in respect to the term and date, that - I am not making these submissions to try to obviously sway the Commission from making an order or not, but it may be at the site seen as perhaps an aggressive step by Grocon to do this and to take the order.

PN1007

I mean, it may be, given submissions that we said earlier in referring to a decision of Commissioner Lewin that an order of a short duration, if you were to do - to give one, a short duration, you would start to see what - if it is being sought on the basis - obviously on the basis of what they say has happened, but to try to implement some sort of cultural change, then it may be that a shorter one with the ability, I suppose, for the applicant coming back and seeking extension or whatever, but a short one first and see what effect that has, rather than one hanging over people's head for a much longer duration. Thank you, your Honour. Those are the submissions of the CFMEU.

PN1008

THE VICE PRESIDENT: Thank you. Mr Tuck?

PN1009

MR TUCK: Your Honour, there is only a couple of things I wish to address. The order is directed at primarily behaviour which ignores the obligation under the dispute resolution procedures or the safety resolution procedures, and it is the company's submission that the history which is set out in the chronology attached to our submission sets out a pattern of behaviour that demonstrates that the union, through its delegates, chooses not to follow those procedures in circumstances where both Mr Browne and Mr Bolta were able to give evidence that they had read those procedures and were aware of them and had a working knowledge of those procedures.

PN1010

We are also able to say that they simply don't follow them, and they gave that evidence, we - no, we don't have the authority to put people off. We understand that, and the inference must be that they understand or they don't have that authority, because they can't point to any place in the agreements where they have it, and they understand what the agreements say in their evidence. So the plain evidence of Mr Browne and Mr Bolta is choose not to follow the agreements. They deliberately choose to ignore them and they choose to say that the site safety committee, made up of the union members, makes decisions.

PN1011

That site safety committee does include a member of the CEPU, and so the evidence before the Commission, we say, is that that group of people are making deliberate decisions about what they say should be the procedures in effectively ignoring the agreement made by the CFMEU and the company, because they choose to say, uniquely to that site, that we believe there are certain dangers, whatever they might be, and we choose to deal with them in this way.

PN1012

If we want to pull people off, we will describe that as an immediate risk to people, whereas that doesn't occur, as we understand it, in other sites where there is an understanding - the industry practice, for example, is 32 degrees. But there is apparently an immediate risk to health and safety at Exhibition Street, notwithstanding the industry practice of 32 degrees. Now that, we say, is not the approach to be taken. That is not the manner in which to deal with these issues. The company - I don't want this to be overstated. The company won't say it is perfect in the way it has dealt with things but the company has given evidence of its view as to each of these issues and how it has dealt with them.

PN1013

There may be a view from time to time that the company could have been better, but what the company is not doing is breaching its obligations under the Act, or any of its obligations under the agreement, nor can it be said that because it sounds like a good idea that the site meeting be held, that that site meeting automatically becomes not an illegitimate - it is clearly unlawful. There are processes to deal with these issues. They are processes that have been agreed between the union and the company, and just because it seems like a good idea to Mr Bolta and to Mr Browne doesn't make that stoppage of work any less illegitimate.

PN1014

It highlights, in my submission, the illegitimate nature of those stoppages. It highlights it because there is an agreement that they are aware of and they choose to ignore it because they say that it is really important that we all sit down and talk about the table form incident, because we don't want people spreading rumours. That is simply not contemplated under the agreement. It is not necessary, and it is because Mr Browne and Mr Bolta choose to have a unique way of reading their obligations, or simply just choose to ignore them. Now I hesitate at this time to give evidence from the Bar table, but this morning at the site there was a curry-like smell in the top deck. Mr Bolta's answer to that was to remove people from the top deck and he asked Mr Brinzi to have people removed. Mr Brinzi said no, and he wanted the towers in the area tested on the basis of Legionella.

PN1015

MR MADDISON: Your Honour, we - I mean, I don't know if he wants to reopen the case or not. Mr Bolta is here. Put him in the box and seek instructions if he wants to pursue this line. I mean, it is a little bit kind of late-ish.

PN1016

THE VICE PRESIDENT: If you are contesting the bar table statement - is that the effect of what you are saying?

PN1017

MR MADDISON: Yes. Yes, we are. Yes. Mr Bolta is here - - -

PN1018

MR TUCK: I won't press them, your Honour.

PN1019

THE VICE PRESIDENT: Yes, okay. Can I just bring you, Mr Tuck, to one proposition, and that is that the scope of the order versus how one characterises the probable action. What do you say in relation to that? As I understood your argument it was that what the specific instances you refer to in the evidence show is an unwillingness to follow the disputes procedures, both in respect of general matters and in respect of health and safety issues.

PN1020

MR TUCK: Yes, your Honour.

PN1021

THE VICE PRESIDENT: And the order is expressed, obviously, in broad - - -

PN1022

MR TUCK: It is not in our interest to have an order that is not enforceable.

PN1023

THE VICE PRESIDENT: No.

PN1024

MR TUCK: And a number of the points raised by Mr Maddison do have merit, in the sense that the order ought to be focussed on what we say is a problem industrial action. Primarily, it is the failure to follow the disputes procedures in respect of issues that arise at site, and also in relation to the safety dispute procedures. There are two sets of procedures set out.

PN1025

THE VICE PRESIDENT: Yes.

PN1026

MR TUCK: There is a disputes procedure in the agreement. There is a disputes procedure and a safety procedure in the VBIA, and there is a disputes procedure in the award. We say the evidence is clear that it is probable, particularly when you consider the evidence of Mr Bolta and Mr Browne, that they are aware of these procedures and they choose not to follow them, and it is probably if they have that attitude that they are going to do it again next time, there is an issue, so either whether it be an industrial issue in relation to the agreement or a safety related issue.

PN1027

There has been issues in relation to - particularly in relation to overtime for crane crews, and there was obviously a misunderstanding of the obligation in respect of crane crews and overtime and the exception, in that Mr Browne wasn't aware of that, he said in part of his evidence.

PN1028

THE VICE PRESIDENT: I think part of his evidence was that Grocon had sought the agreement of the union, which suggests that the site manager may not have been aware of the exception either.

PN1029

MR TUCK: I think the site manager would say that at an abundance of caution and dealing with the reality of the situation that he was seeking the buy-in of the CFMEU in respect of those issues. Notwithstanding that, your Honour, we say that there are concerns about the way in which those provisions operate and that Mr Browne would seek to involve himself in the manner, we say, that indicates that he doesn't give proper respect to the operation of clause 7(f) of the agreement. Your Honour, without trying to draft an order on my feet, we say the order ought to be directed to those matters, and we would not propose that the order go beyond - unnecessarily beyond what we say is the probable industrial action that we say is likely based on the evidence.

PN1030

But we certainly say that the CFMEU ought to be bound. The CFMEU, through the agreement, places - certainly has a role for the delegates and whether they be the shop steward or the OH&S representative they do act, we say, in the manner so as to bind the CFMEU, and that the CFMEU can be said to have been organising the industrial action. Your Honour, we certainly don't suggest that the recommendation that there be - that there be a recommendation of toolbox meetings, that the union have a number to have over a monthly period. There is a procedure already in the agreements to deal with these matters. It hasn't been followed and we are loath to be coming here complaining about industrial action and end up with, in fact, authorised industrial action, your Honour. That would be a very disappointing outcome.

PN1031

THE VICE PRESIDENT: I can see that would be an outcome you wouldn't be enthusiastic about.

PN1032

MR TUCK: No, I am sure Mr Van Camp, my instructor, would not be enthusiastic that that was the outcome.

PN1033

THE VICE PRESIDENT: Well, what do you say in relation to the Bondeck proposal?

PN1034

MR TUCK: As I understand, the Bondeck proposal is to have an inspector come out, consider that - that wouldn't be contested. That is part of the procedure and that can be followed in any event, and on one view we would be enthusiastic that that be followed. There is no interest in the company in exposing people to any health and safety risks. So if we were advised that there was a health and safety risk we would, you know, seek to deal with it. We don't believe that there is, and throughout the industry Bondeck is used throughout Australia, and we are not aware that there is an issue in relation to this. But if there is then it needs to be dealt with, so we wouldn't resist that at all. They are my submissions, your Honour.

PN1035

THE VICE PRESIDENT: Thank you. Well, if there is nothing further, I will reserve my decision in respect of this matter but I don't want the delay that will be occasioned by that to stand in the way of the Bondeck issue being dealt with. We seem to be moving into a period of warmer weather, so I don't see any reason why the parties can't meet, discuss that issue and arrange for an inspector to be on site whilst we have the relevant temperature. So if you can go ahead in relation to that proposition, and I will, no doubt, say something about it in the decision in any event. But I don't want the fact that it may take me a few days to finalise the decision to stand in the way of the parties discussing those issues. All right. Nothing further? I will adjourn.

ADJOURNED INDEFINITELY [11.07am]