C2004/1187, Transcript of Proceedings [2004] AIRCTrans 1160 (26 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 316
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2004/1187
C2004/1188
C2004/1189

APPLICATIONS FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Applications under section 127(2) of the Act
by Southern Cross Electrical Engineering Pty
Ltd and Others for an order to stop or prevent
industrial action re Hismelt Kwinana Plant
Project site

PERTH

2.47 PM, TUESDAY, 16 MARCH 2004

PN1

THE DEPUTY PRESIDENT: Yes, these are three applications which I will hear together. They were lodged yesterday at around 1.30. And now is the first practicable time for me to deal with them and list it for hearing. Can I have appearances, please.

PN2

MR G. BULL: I appear on behalf of three applicant employers.

PN3

MR L. BENFELL: I appear with MR L. McLAUGHLAN on behalf of the CEPU.

PN4

THE DEPUTY PRESIDENT: Mr Benfell. Is that your correct pronunciation? Benfell, is it?

PN5

MR BENFELL: That is correct, your Honour.

PN6

THE DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Bull?

PN7

MR BULL: Yes, thank you, your Honour. We think these matters are fairly straight forward. And the history is demonstrated in the actual application attached to the draft orders that we seek. The Commission may be unaware that there are three certified agreements that cover the work of the clients whom I represent and they have been certified before this Commission. And I don't know whether you want those dates, your Honour, or are you satisfied that they are registered before you?

PN8

THE DEPUTY PRESIDENT: Well, it is not disputed that there are certified agreements that applies to the work in question, is it?

PN9

MR BENFELL: No, your Honour.

PN10

THE DEPUTY PRESIDENT: Yes. Thank you.

PN11

MR BULL: Yes, thank you, your Honour. Now, can I just by way of amendment, there was one employee named in an application which I am now instructed we want him removed. And that is in the application of Nilsen. And there is a name there, an employee, in schedule 1, L. Plunkett or Les Plunkett. I am instructed that he is not taking industrial action, if it is a he. It might be Leslie. If we can have that removed, if your Honour pleases. Now, I can proceed this afternoon, your Honour, by way of calling evidence in respect to the industrial action. I don't intend to propose that initially, subject to the respondent's position. They may say that certain things we say are incorrect and we need to demonstrate that through evidence.

PN12

If it is accepted that there is industrial action, service has been affected, then I probably don't need to do that. Can I say that at this stage the applications are clear, that employees of the three clients whom I appear before this court this afternoon on behalf of, their employees covered by the agreements are taking industrial action. And we say that the industrial action is not that could in any way be seen to be protected action under the Act nor can it be seen to be exempt under the definition of industrial action, that it is somehow related to some sort of a safety issue. That is certainly not the case. Can I say by way of service, your Honour, we have - I am instructed the majority of employees have been personally served.

PN13

Those employees who haven't been able to be personally served have had the applications left at their home or mailing address personally. And, indeed, most employees have been phoned and advised of the application this morning. So, there can be no attempt at any suggestion of a denial of natural justice or these employees aren't aware of what is going on. All employees are aware of what is going on. As I say, the evidence, if we need to call it, will be that the vast majority of had personal service of the applications. And the others, where they weren't answering their door or weren't home, had the application left at their home address, which is all that is required under the Act, in our submission.

PN14

And the union have certainly been served with the applications, so there can be no suggestion that there is some deficiency in service. So, we are then left with the fact as to whether the exercise in discretion of the Commission should be exercised in favour of an order that we seek. And we do seek an order that the employees and the union desist from taking industrial action and do so for a period of 12 months on this site. You will be aware, your Honour, that the industrial agreements are straight forward or the certified agreements are straight forward in the sense that they have the standard dispute settlement clauses. And really there has been absolutely no attempt to follow the dispute settlement clause by any party, whether it be the employers or the union themselves.

PN15

In fact, one could say they have just simply ignored the agreements that they are bound by. There is a clause in there also, a standard clause, in respect to no extra claims. Your Honour, the application sets out the reasons, we are advised, and in some cases my clients haven't been advised, but we understand that employees are taking industrial action. That is, they simply are not at work and haven't been at work since 12 March, on the basis that there is some sort of a dispute with another employer on site, that being Thiess, I think. And the dispute with that employer is with the Metal Workers Union, the AFMEPKIU. We understand that they are seeking a particular employee by the name of Glen King to be employed by that company and that hasn't occurred.

PN16

And, as I say, it is very unclear as to exactly why our employees are on strike, but the feedback generally simply is that the employees of my clients are on strike because their lending support to the claim of the Metal Workers Union that this particular employee be employed by Thiess. Now, your Honour will be aware that that matter has been before this Commission previously and, indeed, on 9 March an order from this Commission issued requiring the union to attempt to get the employees back to work and for the employees themselves to return back to work. That, unfortunately, for what it is worth, hasn't been successful and the matter is currently before, I understand, Lee J in the Federal Court for breach of the orders.

PN17

And this is simply an extension, from what we are advised, of that dispute. Previously the employees of my clients were exempt from the industrial action. However, on Friday 12 March our employees joined that industrial action. And, as I said before, while we are unclear - because there has been no attempt. Just a blatant disregard of the certified agreement dispute settling procedures. No-one has come to my clients and said: look, we have got this dispute. This is the issues. And we want to sit down and talk about it. And if we can't resolve, then we should send it off to the Commission for a conference to have it resolved. But there has been no attempt to follow that.

PN18

It is just simply, let's walk out the gate, is the instructions that I have received. And on that basis, your Honour, our submission simply is that it can't possibly be protected industrial action. It is industrial action without any merit. And it is industrial action that, at the end of the day, is really something that our clients, it is beyond their control. This is the worst kind of industrial action where we are being penalised because of the actions or inactions of somebody else, whether it be another union or another employer, and this is some sort of a secondary attempt by another union and members of that union to illegitimately put pressure on our clients to try and somehow influence the dispute with another union.

PN19

And in our submission, if there are any reasons as to why a section 127 order should issue, this would be one of them. Where our hands are clean. We come to this Commission having attempted to comply with all our obligations. The certified agreements provide benefits to the employees and, hopefully, it provides benefits to the employers. And that is, when we sit down and reach an agreement where we pay significant wages and benefits to employees, we have got some understanding that during the life of that agreement there won't be any industrial action. Or if there is some sort of industrial dispute, then the workforce will at least comply with their obligations under the dispute resolution procedures and attempt to resolve it in a sensible way without recourse to just walking out the door which is what happened on Friday.

PN20

I understand, your Honour, that there was a meeting this morning. Involved all of the employees at the Hismelt work site, obviously including members of the companies whom I represent. And obviously whether there was a vote or otherwise, I don't know, but obviously the employees didn't return to work. And I understand there is possibly another meeting tomorrow. But we don't get any feedback. We don't get the courtesy of either the union or the employees or workforce telling us why they are taking industrial action. What is it they want us to do to resolve this dispute? We can't employ this person. He is not an electrician. There is no suggestion that we employ the person that is the centre of the dispute.

PN21

But we just have to cop the industrial action, as you will be well aware of, your Honour. The contractors whom I represent have contractors with the project and they have obligations to meet. They have got timetables and schedules to meet. And obviously they are completely thrown out when you have this type of industrial action. Not just for one day but at least since Friday. It is now Tuesday and it doesn't appear that - they are not planning to go to work tomorrow. And we aren't going to be doing anything that we know of that is possible for us to do at least anyway to try and remedy this dispute. So, we are at our wit's end in respect of trying to resolve the matter, because it just seems to be beyond us.

PN22

And on that basis, your Honour, we say that the 1278 order should issue. I know it is certainly a discretionary decision. But it is something within the discretion that you have. And we say that we have met and can meet with without any difficulty whatsoever the primary onus or the evidentiary onus in the first instance that there is industrial action. It is in breach of the certified agreements. It is not lawful. And it is without merit. And on that basis the order should issue. So, your Honour, I have people from the companies here who can go through the brief history of this dispute. They can go through and say how the employees have been served with the dispute.

PN23

They can go through it and say how the dispute resolution procedures are not being complied with. Not even attempted to be complied with. And how the dispute is affecting their project and their contracts with the client. And that they are suffering a financial loss. And they don't seem to be able to provide any remedy in respect of trying to resolve this issue. And why they require the employees to return to work forthwith and why they urge that this Commission issue the orders as we have requested in the form that we have requested. So, I am happy to put them in the witness box, your Honour, but that may not be necessary, subject to what the unions says. Maybe if we can hear what they have to say, we can narrow down the issues in dispute. If your Honour pleases.

PN24

THE DEPUTY PRESIDENT: Yes. Mr Benfell, do you have any comments?

PN25

MR BENFELL: Yes, sir. We seek to have this matter adjourned. The notice of the hearing of this matter was received by the union late yesterday afternoon. Unfortunately, Mr McLaughlan, who is dealing with the dispute, has been giving evidence before the Senate Inquiry into the Building and Construction Industry sitting in Perth today. And so I have had insufficient time to receive appropriate instructions from him. Additionally, there has been inadequate service of the application and the draft order and the notice of the time, place and hearing of this matter. If you go to the orders sought - and the orders sought seem to be the same in the three matters.

PN26

The orders sought include an order against some 47 individual employees that they, firstly, stop engaging in industrial action by refusal to attend to work. Secondly, that they must not engage in industrial action before any - be any refusal to attend for work. And, thirdly, that they must attend work as normal without any restrictions, limitations or delays. There are very serious orders to be made against individuals. The union can provide evidence that as of this morning at 7 am during a mass meeting of the employees concerned, approximately half advised the union that they knew nothing about these proceedings.

PN27

Obviously they have not been served. And as you are aware, your Honour, there would be a denial of natural justice if this matter was to be heard before the individuals named in the application have been served and are aware of the proceedings. If they are not aware of the proceedings, then the proceedings should be adjourned to allow them to become aware. As they are individuals, they may need to seek independent legal representation. But, of course, they can't do that unless they are aware of the proceedings. Secondly, the application sets out allegations of previous industrial action at the site. The union challenges the veracity of those allegations. And the allegations appear to be broadly the same.

PN28

The first three allegations are in reference to Perth metro. temperature reached 37.5 degrees celsius. Those matters relate to occupational health and safety issues. They were not industrial action. Following that, there is also reference to an on-going strike beginning on 5 March 2004 and the perceived reason given is AFMEPKIU members went on strike in support of the union's dispute with Thiess Pty Ltd or, alternatively, for the employment of a Mr King. The CEPU or our members were not involved in that dispute and yet it is put to the Commission that that is - - -

PN29

THE DEPUTY PRESIDENT: Where is that, Mr Benfell?

PN30

MR BENFELL: Sorry. I beg your pardon. For example, on page 10, which is part of the Southern Cross application, under point 7, there is a table on page 10. The first three matters were occupational health and safety matters. You might recall, your Honour, that was a very - it was a, sort of, heave wave in Perth at the time, giving rise to power shortages, etcetera. The matter I am referring to just now though is the second last reference. When action started on 5 March 2004. And the perceived reason is the AFMEPKIU members went on strike. And it is referred to in the other applications in similar terms, except it also talks about the AFMEPKIU insisting that Thiess Pty Ltd employ a Mr King.

PN31

And that is on page 17 of the - sorry, you haven't got our page numbers, your Honour. We received this as a one facsimile. It is under item 7 in the Downer application. The crucial point is, members of the CPU and the CEPU were not involved in that activity or action. And yet it has been put to you as a reason or as an example of allegedly on-going industrial disputes involving our members and our union. And that is not the case.

PN32

THE DEPUTY PRESIDENT: Are you disputing that there is industrial action occurring now, Mr Benfell?

PN33

MR BENFELL: No.

PN34

THE DEPUTY PRESIDENT: So, there is industrial action occurring?

PN35

MR BENFELL: I understand so.

PN36

THE DEPUTY PRESIDENT: Yes.

PN37

MR BENFELL: But the point we make is important, your Honour, in that at point 8 of the applications, and they seem to be the same again, the term of the order sought relies upon the allegation there has been consistent industrial action.

PN38

THE DEPUTY PRESIDENT: Yes.

PN39

MR BENFELL: And authorities that are given under point 8 rely upon the assumption there has been on-going industrial action. And that you should make an on-going order for all industrial action that may happen in relation to any issue in the future.

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MR BENFELL: And we say that you can't rely upon that authority because it can be distinguished, or those authorities.

PN42

THE DEPUTY PRESIDENT: Well, what you are saying is there is no pattern?

PN43

MR BENFELL: No, exactly. Yes. Hence, those authorities - - -

PN44

THE DEPUTY PRESIDENT: And that the basis to establish a pattern is erroneous?

PN45

MR BENFELL: Yes.

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MR BENFELL: Hence, those authorities are of not much use to you in your considerations.

PN48

THE DEPUTY PRESIDENT: But you are not disputing that there is industrial action occurring now?

PN49

MR BENFELL: No, we are not disputing that.

PN50

THE DEPUTY PRESIDENT: Yes. So, what you are really asserting is that if order should issue, it should not be of the nature of the order that is requested, especially in terms of the term of the order?

PN51

MR BENFELL: Yes, that is, if the matter is to be heard.

PN52

THE DEPUTY PRESIDENT: But you are also seeking an adjournment on the basis of a lack of service? Is that - - -

PN53

MR BENFELL: To the individuals concerned, yes.

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MR BENFELL: Otherwise they are being denied the opportunity to put their case to the Commission.

PN56

THE DEPUTY PRESIDENT: I see. You are aware I issued orders for this project for another union?

PN57

MR BENFELL: I heard that in passing, your Honour.

PN58

THE DEPUTY PRESIDENT: Yes. And there are other proceedings for that other union and other employers occurring tomorrow.

PN59

MR BENFELL: I understand so.

PN60

THE DEPUTY PRESIDENT: Yes. Sorry, I interrupted you, Mr Benfell.

PN61

MR BENFELL: That is fine, your Honour. So, we say the terms of the order are too broad because they seek to have a restraint on - at point 8 it talks about:

PN62

The order should cover all industrial relations issues that may be pursued.

PN63

And obviously that is much too broad, given the circumstances. But, more importantly, at part of the orders sought, and I refer to the order in relation to Southern Cross Electrical Engineering Pty Ltd, as I understand they are the same in all terms, under paragraphs 3(d) - - -

PN64

THE DEPUTY PRESIDENT: Just a moment. To make sure I have got the right one. Yes, Southern Cross. And item?

PN65

MR BENFELL: 3(d). Which refers to the union, its officials, agents and employees. And it goes on for some time. That paragraph of the order cannot be given any real meaning. It is ambiguous. If you look at it closely, one cannot give it any meaning. And as you are aware, your Honour, the authorities are very clear on this matter. Any 1278 order must be clear and unambiguous. And (d) is neither clear or unambiguous.

PN66

THE DEPUTY PRESIDENT: I am not sure I am following you. You might need to expand on it.

PN67

MR BENFELL: I am saying that you cannot make any sense of (d). What is (d) asking the Commission? If the order was issued as it currently stands, what is required of the union or its members under (d)?

PN68

THE DEPUTY PRESIDENT: Yes. Let me just read it slowly.

PN69

MR BENFELL: In any event, my friend may be able to help and may be able to explain what it does say. But on a close reading, I can't find any discernible meaning. I can say, your Honour, that there is a report back tomorrow morning at 7 am on site of our members. And as you indicated, there are on-going discussions between the AMWU and the employers in a related matter. Sorry, beg pardon. My friend has just advised, the meeting at tomorrow morning is not on site, but there is a meeting at 78 am tomorrow morning of the employees concerned.

PN70

THE DEPUTY PRESIDENT: Of the employees of these employers, subject to these applications?

PN71

MR BENFELL: Yes.

PN72

THE DEPUTY PRESIDENT: Is that what you are saying?

PN73

MR BENFELL: Yes, yes.

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR BENFELL: I can advise the Commission that the union is prepared to recommend to our members at that meeting tomorrow morning that they return to work. Given the union's preparedness to give such an undertaking, it is appropriate for the Commission to adjourn the matter because we are confident that if this matter would be heard again on Thursday or Friday, the industrial action is likely to be no longer - - -

PN76

THE DEPUTY PRESIDENT: Occurring.

PN77

MR BENFELL: - - - occurring. But we are not confident that if an order was issued today that our ability to recommend a return to work would be furthered. That completes our submissions.

PN78

THE DEPUTY PRESIDENT: Well, presumably, you would be - if an order issued today, if it ordered in the sort of terms that is requested, you would be informing the employees concerned that they may be directed to return to work and the consequences of not following that direction that could flow.

PN79

MR BENFELL: That is correct, your Honour. We say that if you were to issue an order today, given that there is no evidence that the named individuals are aware of these proceedings, then we may also have to seek a remedy elsewhere.

PN80

THE DEPUTY PRESIDENT: Yes. Although the Commission has previously canvassed the issue of service of individuals, Mr Benfell, and has formed the view, not as presently constituted, but as formed a view, and it seems the right view, that where there are unions party to agreements and orders of this nature are sought, that despite rule 25(4) that given the expedition that these matters are expected to be dealt with, that service on the union may well be deemed to be sufficient service.

PN81

MR BENFELL: It depends on the terms of the order, I think. But I thank you for our advice on that point. If the order is against the union, that is one matter. But if it against - - -

PN82

THE DEPUTY PRESIDENT: Yes. It might be different. Yes. I will have to review those authorities in any event, Mr Benfell, so don't rely on them as though they are gospel.

PN83

MR BENFELL: That completes our submission, your Honour, unless you have any further questions.

PN84

THE DEPUTY PRESIDENT: Thank you. Thank you. Mr Bull, do you have any - - -

PN85

MR BULL: Yes, just a couple of things, your Honour, if I may. I just wanted to clarify - and I have just noticed that, your Honour, the point 7 of the application which seems to be consistent with the three applications, does refer on 5 March to industrial action. And it is misleading to give the impression that employees of the companies concerned were actually on strike. That is not the case. What it says there is and the perceived reason is AFMEPKIU members went on strike in support of the union's dispute with Thiess. I am instructed one of the companies had some metal work type classifications and those employees actually went on strike. Not the electricians of the same company.

PN86

But I don't want to give the impression that the electricians went on strike on 5 March. They didn't. The electricians went on strike on 12 March. I am not sure if I cleared that up. I will just say, one of the companies did have metal worker employees. I will just find out which one that was. Southern Cross. They had five employees doing fabrication.

PN87

THE DEPUTY PRESIDENT: In any event, I think the issue really, from that table, Mr Bull, is that if it is to establish a pattern of behaviour, there is a challenge to that.

PN88

MR BULL: Yes.

PN89

THE DEPUTY PRESIDENT: I would assume that the reason for the table to establish a pattern of behaviour is the term of the order being sought for 12 months. Now, you will be, I am sure, conscious of the views I expressed with respect to the AMWU matter, that if an order of that length, and on the basis of a pattern of behaviour is sought, then there should be full and proper opportunity for the parties against whom the order is sought to be made to be prepared and take instructions and otherwise be able to properly deal with the matter.

PN90

MR BULL: Yes, your Honour. I am certainly cognisant of that fact. We say that we don't need to rely on the pattern of industrial action. We certainly don't accept that on 16, 17 and 18 February there was action taken on - removal from work by the employees on the basis of an occupational health and safety matter. That is really stretching it to now raise that now sometime nearly a month later, when there has been no application for - these people weren't paid. So, there can be no application or no genuine - - -

PN91

THE DEPUTY PRESIDENT: Well, if the circumstances are similar to the circumstances in other applications where I dealt with that issue - - -

PN92

MR BULL: Yes.

PN93

THE DEPUTY PRESIDENT: - - - then a conclusion in that other issue may well be a similar conclusion that would be reached here.

PN94

MR BULL: Well, the circumstances are, I am instructed, identical. And - - -

PN95

THE DEPUTY PRESIDENT: In any event, they all relate to aimed support at a pattern of behaviour with the term of the order for 12 months.

PN96

MR BULL: Yes.

PN97

THE DEPUTY PRESIDENT: And what I am saying to you is that those issues all have to be canvassed and proper scheduling of hearings that the union and anyone else is alerted to what the full basis of your claim is and assertions are and what evidence you will lead, the basis of that evidence, and the like. It is a little different to an order of a lesser term being sought.

PN98

MR BULL: Yes. Well, your Honour, certainly in your discretion you are able to issue an order of whatever prescription you feel inclined to do so. And if that is a lesser period than the 12 months requested, then that is - - -

PN99

THE DEPUTY PRESIDENT: Well, what I am saying is, that if you want to pursue a 12 month order, I would list it for hearing in a manner that there has been full and proper opportunity for the unions and anyone else to be fully prepared.

PN100

MR BULL: Yes. Well, your Honour, what we are saying is, and that is obviously not disputed, that there is industrial action. It has commenced last Friday. We haven't been told not the least this afternoon what the reason is. But we have now been told - - -

PN101

THE DEPUTY PRESIDENT: But you have been told there is going to be a recommendation there will be a return to work tomorrow morning. Now, on the assumption that recommendation is followed and on the assumption that the union officials would fully inform the employees concerned of the consequences that my flow from continued industrial action, if an order issued now, (1) it is unlikely that it would able to be served and complied with in a way that would lead to a return to work before then anyway, would it?

PN102

MR BULL: Well, your Honour, we say a number of things about that. And that is, we don't know what is going to happen tomorrow. I mean, it may well be that there is a recommendation to return to work and the employees don't return to work or it may well be that the recommendation to return to work, they do return to work and then they go out on strike the following day or at some other time in the future over the same issue. It just seems to us that if - there is nothing to be lost if an order issues that subject to the fact that they don't return to work tomorrow morning, that the order should stay in force. As I say, we have got no reason to think that they are going to return to work tomorrow. No reason whatsoever.

PN103

And, you know, how people put recommendations to return to work is really up to the union. And I don't think that should be a reason or an explanation as to why an order shouldn't issue. We are concerned that this will just drag on. And we know, your Honour, that similar orders have issued on the same dispute with other unions, and they haven't been complied with. We are concerned that the failure to - - -

PN104

THE DEPUTY PRESIDENT: But their behaviour has been a little different too, hasn't it, here, Mr Bull?

PN105

MR BULL: In respect to what?

PN106

THE DEPUTY PRESIDENT: The employees and when they have taken the action, what action they have taken, if they have.

PN107

MR BULL: Yes. One certainly would have to concede, because the electricians haven't been on site as long as the other unions, the CFMEU and the Metal Workers, obviously the opportunity to or the inclination to take industrial action hasn't occurred over such a long period. But they have certainly taken industrial action in February. Those circumstances are identical to the matter before you and it is just a nonsense argument to now say in March - - -

PN108

THE DEPUTY PRESIDENT: But you didn't seek orders on those?

PN109

MR BULL: We didn't because there weren't any certified agreements registered, your Honour.

PN110

THE DEPUTY PRESIDENT: I see.

PN111

MR BULL: And, therefore, I think that is why we didn't. Now, can I just say in respect to service, we say you have correctly identified the discretion you have under the Act and the rules, that you can waive the rules if required. But we don't think you need to do that. I am saying, and I am happy to produce evidence this afternoon, that all employees have been served in one form or another. Now, it seems strange to say there is some denial of natural justice when this morning they say, well, half the workforce has told us they know about it. The other half don't. Well, they all know about it now, don't they? That is just seems very, very strange to say, well, we told them about it, but they said they hadn't actually been served.

PN112

They know about it. And the argument to say, well, they don't have individual representation, well, the half that have been served, are they up here having individual representation? They are not. And if they all require the service to be personally delivered them, we would be very surprised to see any of the individuals up here with personal representation, other than the representation provided by their union. So, that just has no weight and has no legs, in our respectful submission. The fact is all employees have had the documentation given to them personally. And because there was a meeting at 7 am this morning, doesn't mean service stopped at 7 am this morning.

PN113

Service has been continued through the day. Well, it was listed for 2.30. All employees are aware of it. The union conceded the fact that they are aware of by the fact that they raised it at their meeting this morning. So, if any employee was that concerned about it, he could have been today saying, well, I haven't been served. I don't know anything about it, other than the union saying through some hearsay submission that they don't know anything about it, which just can't be the fact. And as I have said, my clients are prepared to say on oath that all employees have been served either by personal service or having the documentation delivered to their home address.

PN114

So, I don't need to go through the Act, your Honour, in respect to the need to deal with these matters promptly. We don't see any purpose would be served by having this matter adjourned for another day. It may well be that the employees return to work tomorrow and, if so, they will have complied with the order. There is no problem. So, there is nothing lost. There is no prejudice to either the employee or the employers. And we still maintain that the order should issue. And if there is some question about service, I am happy to - in your mind, your Honour, that you need to see more evidence that these documents have been served, I am happy to call evidence in that respect.

PN115

As I say, the undertaking given by the union is welcomed but at the same time, because we haven't been told why the circumstances have changed, what is the reason these employees will go back to work tomorrow as opposed to why they have been off for the last - since Friday, Saturday, Monday and today. If there is going to be a - - -

PN116

THE DEPUTY PRESIDENT: Presumably they will be told the consequences of not.

PN117

MR BULL: Well, that doesn't seem to have affected other employees on the site. But if these electricians were more concerned about it, then so be it. But, as I say, we don't have much faith in that recommendation. We are told by the other unions who have brought it to the attention of the workforce that they have got orders against them and they should return to work, and they haven't returned to work. So, that is why I say we don't have much comfort from the undertakings given by the union this afternoon that they are going to make a recommendation. Your Honour, I don't want to - - -

PN118

THE DEPUTY PRESIDENT: Well, that is all they can do.

PN119

MR BULL: Yes, that is all they can do. All I am saying is, it doesn't mean that the employees will return to work. As I say, the union this afternoon have made no attempt to explain what the dispute is about and why the employees of these contractors have even been on strike in the first place and as to why tomorrow morning there will be a change in circumstances other than an order may issue. But, your Honour, I mean, one avenue would be that the order to be stayed until after 7 am tomorrow morning to see what does happen. But that is a matter for your discretion, your Honour. But we still maintain that the order should issue and all the necessary requirements have been complied with.

PN120

THE DEPUTY PRESIDENT: What, so, an order issued to come into effect when industrial action is not occurring?

PN121

MR BULL: But, your Honour, if - - -

PN122

THE DEPUTY PRESIDENT: On the basis it is now occurring?

PN123

MR BULL: Well, if it is, certainly, yes. That wouldn't be unusual, your Honour, because if the order went for 1 month and employees returned to work in a week's time, then the order is still in effect when they are back at work. I mean, it seems strange to us for the union to say, well, we are a bit concerned that if you issue an order, they may not go back to work. And then there is an argument, well, if you don't issue an order and we tell them an order may issue, then they will go back to work. It doesn't seem to have much sense to us. And our submission is, the order should issue. And there has been no adequate - there has been no attempt to provide any explanation for the industrial action, other than to say, well, the action taken early in February wasn't industrial action.

PN124

It was over a safety dispute. It got too hot. But on this occasion, it just simply - there is, in our submission, no way anybody could justify the industrial action that has occurred over the last three or four days and that is why there has been no attempt to justify it. And we don't believe that we should be hamstrung by the non-issuance of an order, simply because the unions say, well, tomorrow we will make a recommendation they return to work.

PN125

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Bull. Mr Benfell, do you want to respond to any of that?

PN126

MR BENFELL: I don't want to spend all afternoon responding to every point, your Honour, but I have to respond to a couple, unfortunately. It is correct to say that those who attended the meeting this morning as a result of Mr McLaughlan's advice, became aware of the hearing today. But we don't take lists of people attending these meetings and we are not unaware of exactly who had attended and who didn't. But the point is, they may have become aware of the hearing, but there is no - the Commission cannot be assured that they were in receipt of the application or the order sought. And that is the main thing. In relation to other organisations and allegations that other orders have not been complied with, well, that is not of much interest to us.

PN127

I mean, I am surprised, I must say, that the union's undertaking to recommend a return to work in the circumstances of this dispute has been taken so lightly. Quite frankly it surprises me because the surest way of getting a return to work is for the union to voluntarily encourage and recommend to members to return to work and I'm surprised that, that undertaking has been dismissed so lightly.

PN128

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Benfell. I am satisfied and it is conceded that it appears that industrial action is occurring in relation to the work that is regulated by certified agreements. I also note that an undertaking has been freely given, not requested, and as Mr Benfell has stated volunteered that that undertaking I think should be given considerable weight and is an undertaking that in the absence of it may well have resulted in an order issuing and in the absence of compliance with the recommendation that the union has undertaken to give to employees tomorrow still may well result in an order issuing.

PN129

I am satisfied that jurisdiction exists for an order to issue. I am not of a mind for those reasons that an order should issue at this time. I will adjourn the proceedings and, Mr Bull, should you require the matter to be re-listed it will be re-listed at short notice. If you require, however, for an order of the nature sought with the terms sought I will approach it in the same manner that I have approached it with the matters involving another union and other employers in that appropriate time should be given, basis given and for full capacity for preparation of any opposition to an order issuing. This matter is adjourned.

ADJOURNED INDEFINITELY [3.30pm]