C2004/2394, Transcript of Proceedings [2004] AIRCTrans 1206 (30 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 10164

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C2004/2394

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by ABB
Australia Pty Limited for orders in respect
to industrial action at the ABB Port Kembla
Workshops site

SYDNEY

1.03 PM, FRIDAY, 19 MARCH 2004

PN1

MR A. SALMON: I seek leave to appear on behalf of my client ABB Australia Pty Limited. With me is MR M. BEZZINA from the client.

PN2

MR A. NEILSON: I appear on behalf of the AMWU and I also note my appearance on behalf of the AWU in these proceedings. For the purposes of leave, I oppose leave on that basis that there are several issues that need to be dealt by this application and it would certainly be the basis of our submissions. But in relation to what Mr Salmon could assist with in relations to these proceedings today, we note that it is a primary function of the Commission to, where possible and where practical, exercise its conciliation powers prior to commencing or arbitration or issuing of any orders pursuant to section 89 of the Act.

PN3

It is on that basis that - with respect to Mr Salmon, he hasn't got involved in this dispute and neither have I, but I act under instructions from the union. But we have serious question marks about whether or not he can resolve the dispute in question. The other point that arose, your Honour, is that conduct of complained by the applicant in this application is no longer actually occurring and it is not threatened, impending or probable size to give rise to a jurisdictional prerequisite pursuant to section 127(1), but that is a matter for formal submissions, so I will save those for later, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, I note that the application is not an application to resolve the dispute, but rather an application for an order. That is rather different to what you just said.

PN5

MR NEILSON: Well, your Honour, certainly we would say that the onus that is imposed upon the Commission by virtue of section 89, it is reflected throughout the Act, and it is certainly present, I believe, in the objects of the Act, and that is to resolve disputes by way of conciliation, and if necessary arbitration. The proceedings that the applicant seeks to continue with today would, of course, require the Commission to exercise its functions pursuant to the Act, and we say that those functions are best exercised by way of conciliation first, and then if that is unable to resolve the issues which, with respect to the other side, I struggle to see what those issues are, given that the conduct complained of is not happening. Then the matter can be pressed and that the application can proceed. It is on that basis that we would oppose Mr Salmon's leave, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Well, I haven't heard the basis on which he seeks leave yet, so thank you.

PN7

MR NEILSON: Yes, certainly.

PN8

MR SALMON: Thank you, Senior Deputy President. On the basis that my friend does not consent to leave, I would seek to make application to have leave in relation to this matter on the basis of section 42(3)(b). If the Commission pleases, I have been involved - notwithstanding the submissions of my friend, been closely involved with my client in relation to this particular matter. The evidence will demonstrate in these proceedings that industrial action was the subject of a matter, and for that matter, a section 127 application before his Honour Justice Munro, which occurred last year, and a recommendation arose as a result of that.

PN9

Senior Deputy President, I was involved in that application, and that did involve some conciliation between the parties, and then a recommendation arose out of it. Unfortunately, Senior Deputy President, the evidence will show there's been a continuation of industrial action at this site, notwithstanding that the parties entered into an agreement, albeit a State agreement, midway through last year. The agreement goes for 3 years, and we have had evidence of continuing total disregard of the disputes procedure under that instrument.

PN10

That disputes procedure is the disputes procedure of the Metals Award. There are special circumstances. The special circumstances are: I have been involved in this matter, Munro J has issued a recommendation in relation to this matter, notwithstanding that very, very strong recommendation. The two unions and the employees have ignored what is required, and the application that I seek to make today under 127 is an extension of that. My friend is of a misguided view to suggest that this Commission must exercise conciliation powers with respect to a section 127 order.

PN11

A section 127 order can be made by the Commission upon two things. Firstly, upon establishing that the Commission has jurisdiction to hear the matter. Secondly, as a matter of discretion where, on the basis of the facts, the Commission should make such an order. If leave is allowed, we would not be seeking the Commission to exercise conciliation powers. We would be in a position to present evidence to this Commission, but notwithstanding a recommendation of Munro J which is crystal clear, the parties at my client's site have continued to involve themselves in industrial action.

PN12

Now, section 127, Commissioner, involves a number of terms, and it involves section 127(1) which states:

PN13

If it appears to the Commission that industrial action is happening -

PN14

we say that industrial action is not happening, and evidence will come in relation to that -

PN15

or is threatened -

PN16

we say that there's no evidence in relation to that -

PN17

impending, or probable.

PN18

We will provide evidence to this Commission, and supported by submissions that, given what has happened on this site, evidence will show that industrial action is probable, unless we start to provide an adequate deterrent to the employees in the union to stop taking industrial action, and to follow the procedure which they agreed to under a relevant instrument. That is the basis of this order. Senior Deputy President, they are my brief submissions in relation to my application that I be allowed leave in this matter.

PN19

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Neilson, was there anything you wanted to say?

PN20

MR NEILSON: Your Honour, I've made my submissions with respect to the leave, and I maintain the opposition.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Having heard the submission, I am satisfied that there are special circumstances that make it desirable that the representation be as sought, and I grant leave.

PN22

MR NEILSON: Your Honour - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Salmon, I think, it is over to you. You wanted to say something, Mr Neilson?

PN24

MR NEILSON: Yes, I did, your Honour. I raised a jurisdictional point, and I'm not sure whether I want to hear from Mr Salmon first, or wanted to deal with that jurisdictional point first. Mr Salmon, it is his application, if he wants to outline his case then he is more than entitled to do that, but the jurisdictional point I take may result in this matter being dismissed, or the Commission refrain from hearing it. As such it may be worthwhile hearing that point first, rather than listening to Mr Salmon, and then us raising that particular point.

PN25

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN26

MR NEILSON: Your Honour, you will see from the application of ABB that the agreement that regulates the parties is an agreement registered within the State jurisdiction. It is registered under the New South Wales Industrial Relations Act. It is registered as the ABB Australia Pty Limited, Port Kembla, Workshops Enterprise Agreement 2003 to 2006. Now, the Commission would be aware of the operation of section 111AAA of the Act, which provides that the Commission is to cease dealing with industrial disputes in certain circumstances.

PN27

Those certain circumstances are where the wages and conditions of employees and the employer are governed by the State. Section 111AAA says that:

PN28

If the Commission is satisfied that a State award, or State employment agreement governs the wages and conditions of employment of particular employees whose wages and conditions of employment are the subject of an industrial dispute, the Commission must cease dealing with the industrial dispute in relation to those employees, unless the Commission is satisfied that ceasing would not be in the public interest.

PN29

Now, your Honour, by admission, and I don't think - I hope it is not denied, because it is obviously the case that the employees and the employer that is party to this particular dispute is governed by that particular State registered agreement. With respect to my friend, I find it somewhat bemusing that they actually make application pursuant to section 127, given that the parties are currently before the New South Wales Industrial Relations Commission.

PN30

Following the disputes procedure that my friend alluded to earlier, before Commissioner O'Neil of that Commission, the parties are in relation to that matter are dealing with a separate issue, but if my friend alleges that there has been some form of industrial action taken and it is subject to evidence only in allegation at this stage, then it is within their powers to refer the matter to the State Commission pursuant to section 130, and if they believe orders should be made then they have that option pursuant to section 136 of the State Act.

PN31

Your Honour, therefore, we are somewhat concerned that this company has brought this matter to the Federal Commission when the State Commission is well aware of the parties, it has an agreement registered under its terms, under its Act and, certainly, Commissioner O'Neil has intimate knowledge of the issues between the parties and also the conduct of the parties. Now, Mr Salmon is making some reference to, in his earlier submission, that these employees have engaged in industrial action on previous occasions and Munro J has made a recommendation therein, not wanting to comment on the recommendation from Munro J.

PN32

I will say that if Mr Salmon is alleging that these employees have taken industrial action on several occasions and their behaviour warrants some form of sanction from the Commission, then we would say that is certainly best dealt with by Commissioner O'Neil of the State Commission, given that he has dealt with the parties on a previous occasion and would indeed have that requisite knowledge in dealing with the application. Your Honour, certainly, it is our application that the Commission should cease dealing with the industrial dispute on the basis that there is a State Agreement in place and the parties have utilised the disputes settlement procedures before the State Commission on several occasions. Now, the Commission does have a discretion with respect to the public interest to continue dealing with that particular matter.

PN33

THE SENIOR DEPUTY PRESIDENT: Well, just before you go on to that.

PN34

MR NEILSON: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: I seem to recollect that I have also dealt with the parties previously, have I not?

PN36

MR NEILSON: I think you have, your Honour, on a separate section 99 application and I think my recollection is that you also expressed concern at that time that there was a State Agreement in place and what powers you had to issue any orders in the terms sought by the company, or directions for that matter.

PN37

THE SENIOR DEPUTY PRESIDENT: My memory is hazy on what it was about, but I certainly do recall dealing with the parties before. Anyway, sorry, carry on.

PN38

MR NEILSON: Yes, your Honour, so on the basis of section 111AAA, we would certainly say that the Commission should refrain from dealing with the matter under these circumstances and the Federal Commission, your Honour, would be aware that it is not in the business of rewarding forum shopping. Where parties have sought to utilise sort of State or Federal, or whatever suits their needs, or whenever possible, the Commission has looked upon those types of applications harshly in the past and certainly, we would submit, that they should continue to look upon them harshly now.

PN39

The only discretion the Commission has to refrain from ceasing to deal with the dispute is pursuant to the public interest. Now, your Honour would be aware - and I don't think I'm putting anything that Mr Salmon is not agreeing to - the industrial action that is alleged is not happening and I think in his words, it is not probable - sorry, it is not happening and it is not impending either, but on his belief, it is threatened or probable. Given that, your Honour, we would say that there is no public interest in dealing with this particular dispute because there is no urgency. If the industrial action was continuing and was taking place at this very moment, then that certainly would give rise to the Commission's public interest test.

PN40

Given that it is not occurring and it is not impending, it is only threatened or probable as alleged, then it is within the capacity of Mr Salmon to walk out of this hearing room today and lodge the matter down in the State Commission and it could be dealt with swiftly under its terms and procedures as it has been. With respect, your Honour, I understand that your Honour has listed this application at short notice and inconvenienced your timetable as well, but we do not see how this Commission can continue to deal with this particular matter, on the basis, that both parties by agreement have consented to have their agreement registered in the State Commission and that is regulated by the State Industrial Relations Act, not the Workplace Relations Act.

PN41

If ABB wanted to have a Federal Registered agreement, then it could have taken that up and it could have had one registered in this Commission, but it chose not to. It chose to rely on the Industrial Relations Act and now when they say it is not convenient, they seem to come to the Federal Commission to get it to exercise its powers. We would certainly say that they can only have one, they can't have both. Your Honour, I also raise another jurisdictional point and that is, I note my appearance for the AWU today. I received a telephone call from Mr Andy Gillespie, who is the State Secretary - the Secretary of the AWU, Port Kembla Branch - and also some correspondence from Mr Phil Reid asking me to appear.

PN42

They have said that they have not received a copy of the application that has been filed by Fisher Cartwright and Merriman, and when they contacted Mr Salmon to ask why the matter was still being heard in the Federal Commission, given that the industrial action had ceased, Mr Salmon had hung the phone up on them. I have a signed statement to that regard with respect to the conduct of Mr Salmon that I won't seek to tender because I don't necessarily see it as assisting the parties, but in relation to that service, your Honour, we received - that is the AMWU - received a copy of the facsimile application on 17 March 2004, at approximately 5.07 pm under the hand of Mr Salmon. That is the only copy that has been presented to the AMWU to the best of our knowledge and the AWU maintain that they have not received a copy of the application.

PN43

Now, the reason that I raise that particular issue, your Honour, is that the rules of this Commission, and in particular rule 72 of the Workplace Relations Act and of this Commission, prescribe how service is to take effect. Unfortunately, your Honour, and Fisher Cartwright and Merriman are no strangers to industrial proceedings and they are no strangers to the procedures under this Act. Rule 72 provides that:

PN44

Service must be effected in a number of ways and none of those ways is provided for by facsimile.

PN45

Your Honour, the applicant, if it wished to effect service by facsimile - and we keep in mind that section 127 applications are often urgent and parties need to serve them as quickly as practicable - that is why the rules have an exemption under them to apply to the Commission to seek a order with respect to substituted service. Now, from the documents that we have received, Mr Salmon has not applied for an order for substituted service so, therefore, we raise issues with in fact the service of the documentation.

PN46

Given that my instructions are from a telephone call with the AWU this morning, they deny ever receiving service of this particular documentation. We have particular concerns about it as well, your Honour, and certainly Mr Salmon, if he would have dealt with the issues when Mr Reid, the State President of the AWU down there, telephoned him, then maybe we wouldn't be in this position today. That being said, they have not complied with the rules of the Commission with respect to service.

PN47

We would certainly say that the section 111AAA would prevent, or should prevent, subject to your Honour's discretion and determination, prevent this Commission from dealing with this industrial dispute and it should be, if Mr Salmon so wishes, and if he is still concerned about the - or his client is still concerned about the action being threatened or probable - then he can refer it to the State Industrial Relations Commission which is where, on my understanding, the parties are due to convene for a conference some time next week before Commissioner O'Neil.

PN48

If the parties are due to convene for that conference next week before Commissioner O'Neil, I'm sure on application Commissioner O'Neil would make time available as quickly as practicable to him and to the applicant, given the urgency of the situation. It is on those basis that I raise certain jurisdictional points with respect to the application lodged, your Honour, and I would certainly seek to have them determined before Mr Salmon presses with his application.

PN49

THE SENIOR DEPUTY PRESIDENT: What do you say about the fact that, apparently, the agreement refers to the Metals Award dispute resolution procedure?

PN50

MR NEILSON: Your Honour, my understanding is that the agreement refers - in specifically clause 7 - it says that:

PN51

This enterprise agreement shall be read and interpreted wholly in conjunction with the Metal Engineering and Associated Industries Award 1998, the parent award.

PN52

Now, nowhere in that description does it mention that it is a Federal Award. There is a State Award which is called in exactly the same terms, that is the Metal Engineering and Associated Industries Award so therefore, your Honour, there is a dispute with respect to what is in fact the parent award. Now, given that the agreement has been registered in the State Commission, we would certainly say that it is the State Award, and I understand that some discussions between Mr Phillips of our union and ABB have occurred whereby - that had been the previous position agreed to between the parties.

PN53

With respect to the relationship to the parent award and given what we would say the ambiguity about what is the parent award, and with respect to the Commission, the Commission in determining and interpreting which award would apply would be outside of its power on the basis it is a judicial termination that is provided for by the Workplace Relations Act, that is a power conferred upon the Federal Court. Given the ambiguity of what we say is the relevant award, and if Mr Salmon seeks an interpretation of that award and whether or not replies to these particular circumstance, then he should refer it to the Federal Court and/or he should refer it back to the State Commission. That is what we say about the parent award, your Honour.

PN54

I will say this, because Mr Phillips is unable to be here today, he is on leave, but he was somewhat surprised that ABB lodged the application in the Federal Commission and certainly would have preferred the matter to be dealt with by the State Commission who are dealing with the current parties in relation to another industrial dispute. In relation to the parent award issue, there has been an issue that has been presented in front of the Commission on previous occasions. Mr Phillips is of the opinion that ABB had given him a commitment that they recognised that the State jurisdiction was the appropriate jurisdiction to deal with the matter and that the State Award was the appropriate award to deal with the particular issue.

PN55

THE SENIOR DEPUTY PRESIDENT: So just looking at clause 7 of the agreement, it says:

PN56

The enterprise agreement shall be read and interpreted wholly in conjunction ...(reads)... Part I.

PN57

You say that the award in the State jurisdiction has exactly the same name?

PN58

MR NEILSON: To my understanding, your Honour it is referred to as the Metal Engineer and Associated Industries Award, yes.

PN59

THE SENIOR DEPUTY PRESIDENT: 1998 Part I?

PN60

MR NEILSON: I am not sure about the Part I, your Honour, but I believe it was amended in 1998, to the best of my knowledge. I would certainly say, to assist the Commission in interpreting that, given the parties registered the agreement in the State Commission, I am unable or unaware of any provision in the New South Wales Industrial Relations Act which allows an agreement to be underpinned by a Federal Award. Your Honour would be aware that the Workplace Relations Act has a provision in there whereby certified agreements can be underpinned by State awards.

PN61

I am not sure if there is a reciprocal arrangement within the New South Wales Industrial Relations Act and I would certainly be surprised if there was. I am happy to defer to Mr Salmon, if he knows of any particular provision that allows a Federal award to underpin a State agreement.

PN62

THE SENIOR DEPUTY PRESIDENT: Mr Salmon.

PN63

MR SALMON: Thank you, Senior Deputy President. If I could firstly refer to my friend's submission about my telephone discussion with Mr Reed. Mr Reed called at 1 pm yesterday and asked me whether an application would be proceeding under 127 and I informed him that it would. He requested that I withdraw the application. I said that I would not, on behalf of my client. Senior Deputy President, Mr Reed then entered into some argument with me about the matter, raised his voice. I attempted to reply to Mr Reed but was unable to do so and accordingly I terminated the call.

PN64

Senior Deputy President, in relation to my friend's jurisdictional argument and in relation to service, my submission will be those submissions should not form any barrier to this Commission today, to hear and determine a section 127 order. Section 111AAA goes to whether parties, who have lodged disputes or are before this Commission, are governed by State awards and State agreements. It says "governs wages and conditions".

PN65

Senior Deputy President, the industrial instrument that applies to my client is the ABB Australia Proprietary Limited Port Kembla Workshops Enterprise Agreement 2003-2006. That was a State instrument made by the Industrial Relations Commission of New South Wales by Commissioner Connor. Senior Deputy President, this agreement is underpinned by an award of this Commission. My friend has made an error in relation to his submission. The Metal Engineering and Associated Industries Award (1998) Part I, is a Federal award. There is no doubt it is a Federal award.

PN66

THE SENIOR DEPUTY PRESIDENT: Certainly the award I am looking at. Is there an award of the same name in the State Commission?

PN67

MR SALMON: From my knowledge, Senior Deputy President, there is no award of that same title in the New South Wales jurisdiction. I believe the award in New South Wales is the Metal and Engineering State Award or words to that effect. Not 1998 Part I. To put the matter beyond doubt - - -

PN68

THE SENIOR DEPUTY PRESIDENT: That can fairly easily be checked, can it not?

PN69

MR SALMON: The put the matter beyond doubt, if one turns to the disputes procedure of the State instrument, which is underpinned, we submit, by the Federal award, it says:

PN70

The parties to this agreement are committed to eliminating industrial disputation -

PN71

these are interesting words given the circumstances that my client faces -

PN72

preventing any interruption to the performance of work and the consequential loss of production and wages ...(reads)...Industry Award 1998.

PN73

I submit that is the Federal award. That is a Federal award. We are not dealing with a State award. This is a State instrument, underpinned by a Federal instrument. We are not dealing with circumstances involving employees who are governed totally - all their terms and conditions are governed by State instruments. Senior Deputy President, this agreement says that the "enterprise agreement shall be read and interrupted wholly in conjunction with" that Federal award.

PN74

It does not oust the Federal award. It is to be read, interpreted and worked wholly in conjunction with that award. So matters not arising under this agreement will fall onto the Metals Award. In this particular case, there is one particular matter of interest in this matter, that is the disputes procedure. The disputes procedure of the Federal award applies to the agreement and I will come to that very shortly, Senior Deputy President.

PN75

In my submission, if a party is governed by an instrument of this Commission, wholly or partly, it is in the public interest that this Commission can exercise its powers. To have a situation where parties to a Federal instrument cannot use the auspices of this Commission and the Workplace Relations Act in relation to Federal matters would be nonsense. It would be an absolute nonsense. Senior Deputy President, the Metal Industry Award disputes procedure contains certain steps required by parties to take if there is a dispute or grievance at the workplace and I will hand up a copy of that procedure.

PN76

Now, Senior Deputy President, I do not have the copy of the whole award, only the particular clause. I take the Commission to the document which contains the dispute resolution procedure of the Federal Metal Engineering and Associated Industries Award (1998) Part I. Clause 3.2.1(c) provides:

PN77

If the matter is unresolved the employer may refer it to a more senior level of management or to a more ...(reads)... refer the matter to the Australian Industrial Relations Commission for assistance in resolving the matter.

PN78

Now, if the parties were minded in this agreement that the Federal award did not apply, it would appear in the agreement. It does not appear. There is the reference to the Federal award in the agreement. If the parties were minded to use some other alternative disputes procedure, including the State jurisdiction, they could have done so. They didn't do that. In my submission, the agreement speaks for itself. There can be no doubt, and I would see whether the union actually reply to this, whether there is doubt about whether the Metal Industry Award Part I applies. If that is there submission, I would submit that is totally wrong.

PN79

THE SENIOR DEPUTY PRESIDENT: Do you say that ABB is respondent to the Federal award?

PN80

MR SALMON: Yes, they are by virtue of their respondency to the Australian Industry Group, which, of course, is an employer association party to the Federal award. So in terms of instruments, we do have a fairly unusual situation of a State agreement underpinned by a Federal award but that does not prevent it from happening. There can also be circumstances where the parties are bound by a State award and enter into a Federal enterprise agreement, and of course the thrust and the objectives of the relevant State and Federal Acts are to enable parties to enter into whatever instruments, or agreements they want to enter into. My submission in relation to 111AAA is that we are not dealing with circumstances where employees are solely governed by a State instrument. We are dealing with circumstances where Federal provisions do apply and specifically a disputes procedure applies.

PN81

Then, if the Commission is not with me on that I would submit that it is in the public interest that you do deal with the matter where we say and submit, that a Federal instrument does apply and to not do so would make the whole process of 127 orders and other machinery under the Federal Act ridiculous. Senior Deputy President, there was a matter listed before Commissioner O'Neil in Wollongong which I attended on behalf of my client.

PN82

THE SENIOR DEPUTY PRESIDENT: Just before you go on to that, can I take you back to the wording of section 111AAA(1)?

PN83

MR SALMON: Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: It would appear from that, wouldn't it, that the question is whether a State Award or State Employment Agreement, governs the wages and conditions of employment of particular employees?

PN85

MR SALMON: My submission in relation to that, Senior Deputy President - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Is wages and conditions the subject of an industrial dispute?

PN87

MR SALMON: Senior Deputy President, my submission in relation to that is that we are not dealing with a circumstance where a State Employment Agreement governs the wages and conditions of employment. What we are dealing with is a circumstance where a State Employment Agreement governs some of the wages and conditions and the other conditions are covered by a Federal instrument.

PN88

THE SENIOR DEPUTY PRESIDENT: So what other conditions are covered by the - you have referred to the "disputes procedure".

PN89

MR SALMON: Disputes procedure.

PN90

THE SENIOR DEPUTY PRESIDENT: Are there other conditions that you say - - -

PN91

MR SALMON: That is clearly by the parties. Any other provision that is not in the agreement that is contained in the Federal Metal Industry Award Part I. Clearly, you have got an agreement saying the dispute settling procedure of that instrument will apply. Senior Deputy President, I appeared in a dispute notification in the State jurisdiction before Commissioner O'Neil in Wollongong on 20 February. In that hearing I submitted to the Commission on hearing it that there are jurisdictional issues in relation to the application. The parties agreed to confer and the parties agreed to confer about that matter.

PN92

To make a submission that we have agreed, or my client has agreed, to a State jurisdiction to resolve disputes is just not correct, and also would not stand, given that we applied last year before Munro J for a 127 order and got a recommendation. My client has not made any agreement with the two unions that it is the State Commission that would be applicable in relation to a dispute.

PN93

Senior Deputy President, in relation to service my submission is that both the AMWU and the AWU were served with the applications by way of fax. This Commission has rules, obviously, in relation to service. Rule 6 provides that:

PN94

The Commission may dispense with compliance with any of the requirements of the rules before or after the occasion for compliance arises.

PN95

Senior Deputy President, we are dealing here in circumstances where a very strong recommendation was issued by a Judge of this Commission, that has been ignored. As soon as I was instructed in relation to this matter we attempted to serve the AMWU and the AWU as quickly as possible and that was undertaken through a facsimile process. To prevent the application from going ahead on the basis that they weren't served correctly, in my submission, would not be fair and reasonable in the circumstances.

PN96

The unions know what this matter is about. The unions have been here before in relation to these particular issues and if we are ruled against that, then we will simply serve it again, because what we are dealing with here is circumstances for a 127 order that we say, given the history of this enterprise, industrial action is probable. Unless something is done about it the employees and the union will continue to take industrial action costing my clients $65,000 a day, which is unacceptable. They have entered into an agreement - - -

PN97

MR ..........: I can prove it ..... .

PN98

MR SALMON: I have said it earlier in my submissions, so that is all right. They have entered into an agreement, Senior Deputy President, about particular matters, including wage increases, measures for flexibility. They also agreed in relation to a disputes procedure, but they are just ignoring it. If the Commission pleases, I submit that on the basis that my client's employees terms and conditions of employment fall under federal and state instruments, the Commission should hear the matter, and that it is in the public interest that the Commission should hear the matter.

PN99

With respect to service, that the Commission dispense with the compliance of serving the document in person, as we have served the document by facsimile, if the Commission pleases.

PN100

THE SENIOR DEPUTY PRESIDENT: Why do you say the public interest?

PN101

MR SALMON: I say the public interest, Senior Deputy President, because if a union or an employer or employees are covered by a federal instrument it is in the public interest that they be able to use the machinery of the Workplace Relations Act in relation to existing, threatened or probable industrial disputes. That includes making application for orders under section 127. To prevent a party who is bound by a federal award, but also covered by a state agreement, from making an application under 127, in my respectful submission, is not in the public interest.

PN102

THE SENIOR DEPUTY PRESIDENT: Why not? Or to put it the other way, you previously stated that it was in the public interest to - where a federal award applies - allow that option. Why is it in the public interest?

PN103

MR SALMON: Because if parties are bound by a federal instrument, rights and obligations arise as a result of being bound by that instrument and an Act that regulates that instrument - it would be in the public interest that an Act that regulates that instrument be allowed to apply and not be fettered. If the Commission takes the submission that my client's employees and my client itself operate in part under a federal award and a state agreement it is in the public interest that my client be allowed the opportunity to use mechanisms in relation to the Act giving rise to the federal award.

PN104

THE SENIOR DEPUTY PRESIDENT: Why is this not pursued in the state jurisdiction?

PN105

MR SALMON: Because, Senior Deputy President, the parties have turned their minds to a disputes procedure under the agreement which provides that this Commission deals with the disputes. It was open for my client, as it did last year, to make an application under the Federal jurisdiction for a 127 order in these circumstances. My client has instructed me to pursue this jurisdiction in relation to obtaining an order. There is no similar provision under 127 under the State jurisdiction. So there is no equivalent as 127 stands in the Federal Act under the State Act. They are my submissions in relation to that, Senior Deputy President.

PN106

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Neilson, anything you would like to follow up?

PN107

MR NEILSON: Yes. My friend misleads the Commission when he says that there is no equivalent provision under section 127 of the State Act. There is a different matter being covered by section 127 but there is actually section 136 under the State Act which deals with the issuing of dispute orders. Those dispute orders have been and are issued on a number of occasions to stop and prevent industrial action and that is certainly the intent of section 127, and that is certainly what can happen pursuant to 136.

PN108

If those dispute orders are breached then the applicant or whoever has breached them is then liable to penalty pursuant to section 139 of the State Industrial Relations Act which provides the State Commission in Court session with the power to issue fines of up to $10,000 per day of breach and also cancel the registration of industrial associations. So my friend's submission that there is no power under the State Industrial Relations Act or equivalent power under the State Industrial Relations Act to deal with industrial disputes we say is not necessarily correct.

PN109

Yes, there is no power under section 127 because it deals with another matter under the State Act, but certainly under 130, 136 and 139, they could refer that matter to the State Commission and it has the power to deal with it in a swift manner. In relation to my friend's submission with respect to the disputes procedure, the disputes procedure - to confuse the situation even more, clause 37 refers to the Metal and Engineering and Associated Industries Award 1998. Now, is that the same award to which it refers to earlier in clause 7 which provides for Part I or are we to take the deletion of Part I as something to be relevant.

PN110

With respect, your Honour, that is a matter of interpretation which once again needs to be referred to the Federal Court. It is a judicial power that is unfortunately, from the union's point of view, not conferred on this Commission. This Commission has a limited power of interpretation pursuant to section 170LW when agreements - - -

PN111

THE SENIOR DEPUTY PRESIDENT: The power you consistently ask me to exercise in your favour, I might add.

PN112

MR NEILSON: Yes, certainly, that is why I said unfortunately from the union's point of view.

PN113

THE SENIOR DEPUTY PRESIDENT: Sorry, I mis-stated the position, the power which you consistently ask me to accede in your favour.

PN114

MR NEILSON: Yes, certainly, and that is why I said, your Honour, from the union's point of view it is an unfortunate incidence that the Act does not confer that power because we do ask you to make that determination on numerous occasions. The reason I raise it here is because you have an inconsistency between clause 7 and clause 37. Clause 37 makes no reference to Part I so are we to take that that it is in fact a reference to the State Award?

PN115

THE SENIOR DEPUTY PRESIDENT: Whether or not that is so, it is not disputed, is it, that clause 7 refers to the Federal Award?

PN116

MR NEILSON: Well, your Honour, I can't make any admissions there, not without speaking to the parties who drafted and agreed on it, but certainly on the face of it, it would look to refer to the Federal Award, yes, I concede that.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes, so that it would appear that, well, on the face of it the clause says that the agreement shall be read and interpreted wholly in conjunction with the award, which appears to be the Federal matters award.

PN118

MR NEILSON: Yes, your Honour, you can take that, but whether or not that then flows over to what could potentially be a deliberate act by the drafters of the agreement to delete the reference to Part I under the terms of the award which is provided for at clause 37. We don't know the intentions of the drafters of the agreement and whether or not we can ascertain that here today for the purposes of a jurisdictional point I think is beyond the powers of this Commission and beyond the powers of the parties today to adduce that evidence, your Honour.

PN119

In relation to my friend's submissions about the disputes settlement procedure, it says that yes, they have a state of - and correct me if I'm paraphrasing it incorrectly - but yes, they have a State agreement but that State agreement allows the parties to come under a dispute to the Federal Commission for resolution of that dispute. Now, your Honour, that would seem to me to be a ridiculous situation to be in. If the parties get into a dispute with respect to the interpretation, as we seem to be here now, do we then come to the Federal jurisdiction to have the Federal jurisdiction interpret a State agreement? It would just seem to be a little bit silly and certainly a waste of both Commissions' time.

PN120

Now, with respect to interpretation, your Honour, the State Commission has a power of interpretation pursuant to section 175 of the State Act which can be acted upon by Commissioner O'Neil as a Commissioner of that Court. If my friend makes a submission as to jurisdiction and as to the relevance of the State Commission with respect to the exercise of the disputes settlement procedure and he made reference to the fact that he raised that application before Commissioner O'Neil in Wollongong, then that matter can be dealt with by Commissioner O'Neil pursuant to section 175 of the State Act.

PN121

It is not a matter that can be dealt with, unfortunately, by this Commission. So in terms of addressing the public interest, it is perhaps in the public interest for Mr Salmon to refer the matter back to the State Commission, have the State Commission rule on whether or not it is empowered by the disputes settlement procedure pursuant to its power of interpretation. If it rules that it is not, then it is certainly within Mr Salmon's ability to refer the matter back to the Federal Commission for determination.

PN122

The reason why I say that this matter is not urgent, given Mr Salmon's own admissions that the industrial action is not happening and it is not threatened. Mr Salmon can, of course, take his time to refer it or he can ask for an urgent hearing, but given the parties are currently due to report back before Commissioner O'Neil in a couple of days' time, I think it is, then it can be addressed there. Given that the industrial action is not happening and given the application and the issues that the union raises with respect to the jurisdiction of the Commission, I think the Commission would need to take some time to consider the issues that have been raised here today because they are quite serious and certainly may give rise to whatever action that may be taken by either party.

PN123

Certainly, your Honour, on the basis of what we say are the powers of the State Commission and in terms of the interests of the applicant in trying to have this matter dealt with as quickly as practicable, then if they wish to have that matter dealt with quickly, as they say they do, then they can refer it to the State Commission. The State Commission can solve all of these issues in one fell swoop, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: So do you say that the matter that is before Commissioner O'Neil is the matter which was the alleged cause of the alleged industrial action here?

PN125

MR NEILSON: Your Honour, my instructions are that it is not, but there are some issues between the parties that are being - I wasn't actually present, Mr Salmon was and he may be able to correct me, but my instructions are that it was not. The issue in dispute between the parties with respect to the present application has been resolved, on my instructions. The matter has gone away. The company has given a response and you will see that in our application that they have given a response. The employees have returned to work and have continued to work since that time.

PN126

In relation to the issue of service, your Honour, my friend dismisses the argument as irrelevant on the basis that the Commission has a power to waive the rules of the Commission. Yes, the union acknowledges that the Commission has the power to waive the rules retrospectively. The concern for the union certainly is, your Honour, that the issuing of section 127 orders is quite a serious matter and as Marshall J said in the MTIA v AMWU, it is a very serious step:

PN127

Persons who are required to comply with such an order must know with certainty that it is directed towards their conduct.

PN128

Now, if a party that is to be bound by a section 127 order claims that it has not even been served with a copy of the section 127 order, then certainly we would say that gives rise to procedural fairness issues and certainly given the fact by his own admission here today, Mr Salmon has not complied with the rules and has not sought dispensation with the rules prior to coming here today, then certainly that, we say, is a relevant matter that should be considered by this Commission. In circumstances where industrial action is impending and probable or is actually happening, Mr Salmon makes reference to a loss of $65,000 per day which is - - -

PN129

THE SENIOR DEPUTY PRESIDENT: Well, just before you go on with that, it is not disputed, is it, that all of the parties you referred to received the notice of listing from the Commission?

PN130

MR NEILSON: They did receive the notice of listing and when Mr Reed - and he addresses that in his statement - when Mr Reid telephoned Mr Salmon, they got into an argument. Now, they have different versions of the cause of that particular argument, but when Mr Salmon, by his own admission, hung the phone up and terminated the call. So what Mr Reid's intent was, it says here that:

PN131

I asked him if he was willing to withdraw or relist the matter on another date as the officials of the AWU had a heavy work-load, and he reacted very strongly...

PN132

Etcetera. Now, certainly in relation to that, your Honour, Mr Salmon would have had the opportunity there to check whether or not service had been effected. The reason I raise such an issue in respect of service, is because I can understand if a novice to the Industrial Relations arena and Industrial Relations rules and procedures makes a mistake but Mr Salmon and his law firm for that matter, is an experienced practitioner in this particular field. They know that if they wish to effect service - or they should know if they wish to effect service by way of facsimile, then they apply to the Commission for an order for substituted service.

PN133

They haven't actually done that, though, your Honour, and when they turn up here today and say that the Commission should just waive the rules as if they don't matter, we would say given the seriousness of a section 127 application - we are not talking about a section 99 dispute ramification - we are talking about a section 127 application which has serious consequences, we would say those rules should be complied with. Where they are not, or where the party actively seeks not to comply with them, then the obligation is upon them to apply to the Commission for a dispensation.

PN134

They haven't even done that, your Honour, and they weren't even prepared to do that today before commencing with the application. It is only as a result of the union's raising their concerns, and only as a result of the union's raising the jurisdictional issue, that they seek dispensation with the Commission's rules, your Honour. So in relation to that, it is a serious matter and with respect, your Honour, whilst the AMWU appears, we haven't been served with the documents correctly, but we do appear in the proceedings.

PN135

The AWU does not bind it by person and as such the issuing of an order if, indeed, it is issued there are serious question marks as to whether or not that order then binds the AWU. Given that the AWU have members present, and it is the intention of the applicant to bind the AWU, the futility of such an order would seriously need to be called into question. Therefore, once again, we get around to the urgency of the application which we say rightly could be dealt with by the State Commission, given that there is none, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Just looking at the file, the notice of listing is dated yesterday's date at 11.03 am notifying the parties that there was a section 127(2) application to stop or prevent industrial action. That was listed for 1 o'clock today. It was sent to the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union, the Federal Secretary. It was sent to the Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union New South Wales branch.

PN137

It was sent to the Australian Worker's Union, the Federal Secretary, and the Australian Worker's Union, Port Kembla, South Coast and Southern Highlands branch. The Commission's records indicate that that was successfully sent between 11.12 and 11.14 am yesterday. So I presume it is not disputed that the parties that you are talking about had at least 24 hours' notice of the hearing today and the matter that the hearing was about.

PN138

MR NEILSON: No, your Honour, I'm certainly not disputing that the AWU received the notice of listing. In fact, that is what prompted their call to Mr Salmon. Whether or not the AWU, or the officials of the AWU, actually received the facsimile I can't comment upon it, but with respect to the Commission, I had a discussion with your Associate about the listing of this matter.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes.

PN140

MR NEILSON: There is no dispute on behalf of the AMWU that that is why we are here today, your Honour. We do dispute that it complied with the rules, but with respect to the AWU, and with respect to the Commission, it is not the Commission's job to serve applications upon respondents. It is the job of the applicant, and that is clearly set out by the rules, and rule 72(1) provided that a party must serve a document lodged under these rules, and they haven't done that unfortunately, your Honour. Were it not for the concerns raised by the union that they were not even going to inform the Commission that they had not complied with the rules of the Act.

PN141

Presumably they know about them, maybe they don't, but a well-known doctrine of law is that ignorancy is no excuse in these circumstances, your Honour. The union has pleaded often, your Honour, and we don't get away with it often, and I don't think employers should either, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: Are you suggesting you might get away with a few more times?

PN143

MR NEILSON: Your Honour, I'm happy to make that concession.

PN144

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Neilson. Gentlemen, I'm going to adjourn for a brief moment. It seems to me that there are - - -

PN145

MR SALMON: If the Commission pleases, before you adjourn, what may be of assistance to you, Senior Deputy President, in deliberating on the submissions that are put to you are two things. Firstly, does the Commission have a copy of the ABB State Agreement?

PN146

THE SENIOR DEPUTY PRESIDENT: I do.

PN147

MR SALMON: Clause 24 classification structure makes another reference to the National Metal and Engineering Associated Industry Award.

PN148

MR NEILSON: Your Honour, yes. Can I just clarify that? The classification structures under the State Metals Award are exactly the same as per the National Metals Award and, I think - I'm going from memory, but the actual State clause says: please refer to the National Metal for the purposes of classification structures - just as point clarification.

PN149

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN150

MR SALMON: I'm just highlighting, of course, Senior Deputy President. It refers to the term "National Metal." What also may be of use in the Commission's deliberations about this matter is - - -

PN151

THE SENIOR DEPUTY PRESIDENT: I might add, by the way, the reason I have a copy of that agreement is that I have the file in the previous matter which was before Munro J in October 2003.

PN152

MR SALMON: Yes.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes.

PN154

MR SALMON: That what I was also going to refer to, whether you have a copy of the recommendation from Munro J, and it would come as no surprise in relation to paragraph 3.3 to the parties, that is the unions, the AMWU parties to this application. The AMWU and AWU - what would happen if compliance with his Honour's recommendation was not met? So that is an issue that needs to be considered by the Commission in terms of the context of this matter. They are no strangers to 127s.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes.

PN156

MR SALMON: If the Commission pleases.

PN157

THE SENIOR DEPUTY PRESIDENT: Thank you. Gentlemen, I will adjourn for a moment. It seems to me there are a number of factual matters that can be reasonably quickly identified.

SHORT ADJOURNMENT [2.02pm]

RESUMED [3.00pm]

PN158

THE SENIOR DEPUTY PRESIDENT: Mr Neilson has raised several jurisdictional questions. I will deal first with the question of service of the application on the AWU and, indeed, any issues of service in relation to the AMWU. I'm satisfied in the circumstances of this case that the objections raised in relation to service of the application by fax should not be a bar to dealing with the matter at today's hearing listed at relatively short notice yesterday. The Commission exercises the jurisdiction available under rule 6 to dispense with any requirement of these rules otherwise.

PN159

In relation to the arguments put about application of State or Federal awards, I note that the title of the Federal award is Metal Engineering and Associated Industries Award 1998, part 1. The State award is the Metal Engineering and Associated Industries State Award. It has no date as part of its title. It seems torridly clear that it is the Federal award that is referred to in the agreement. At any rate, there's no dispute that the employer is respondent to the Federal award. This is an application under section 127.

PN160

I've been referred to section 111AAA of the Act. Given the application before me in relation to alleged industrial action, I'm not at this stage satisfied that the matter before me is an industrial dispute referred to in section 111AAA, as defined in section 4 of the Act. In the event it is an industrial dispute as referred to in section 111AAA, I'm satisfied that ceasing to deal with it would not be in the public interest. This Commission has issued recommendations relevant to the circumstances in the context that an award of this Commission applies. I've decided that I will hear the application.

PN161

MR SALMON: Thank you, Senior Deputy President. The way I intend to pursue the application is firstly to present some brief evidence to the Commission and then make submissions in relation to the 127 application on the basis of jurisdiction and then discretion. I call to the stand Mr Mario Bezzina.

<MARIO BEZZINA, SWORN [3.03pm]

<EXAMINATION-IN-CHIEF BY MR SALMON

PN162

MR SALMON: Mr Bezzina, can you state your full name, please?---Mario Bezzina.

PN163

Where are you employed, Mr Bezzina?---ABB Australia, Port Kembla as a site manager.

PN164

A site manager?---Yes.

PN165

What is the full name of your employer?---ABB Australia.

PN166

Proprietary Limited?---Proprietary Limited, yes.

PN167

You are a site manager?---Yes.

PN168

Can you explain to the Commission briefly your duties and responsibilities?---I struggle with that myself. I'm in charge of a site of about 110 employees. I manage the site for ABB Australia. We're under contract to Bluescope Steel to do maintenance with a machine shop, a fabrication shop, and a treatment shop, so engineering facilities.

PN169

You have said, Mr Bezzina - - -

PN170

THE SENIOR DEPUTY PRESIDENT: Sorry, can you just say again? You said a - - -?---A machine shop, plus a fabrication shop, and a heat treatment workshop.

PN171

MR SALMON: Whereabouts is your workplace, Mr Bezzina?---Port Kembla, New South Wales.

**** MARIO BEZZINA XN MR SALMON

PN172

Is it on a particular site?---It's on the Bluescope Steel site at Port Kembla, formerly BHP Steel.

PN173

You have said, Mr Bezzina, that your employer provides services to BHP, now Bluescope. Can you explain that to the Commission, please?---We're under contract to supply full maintenance of their equipment with the use of our machine shop, our fabrication shop, our heat treatment area, and it's overhauling of equipment and manufacture of equipment for the Bluescope Steel site.

PN174

Mr Bezzina, can you inform the Commission of industrial action that has been taken by employees where you work in recent times?---Yes. I recall over the past few months, four occasions that come to mind. One occasion was, and correct me if I'm wrong, in early October 2003 where the employees walked out with a dispute to doctors, and our use of company doctors for injuries in the workplace. The second dispute I recall was for subcontractors. We lost a day and a half.

PN175

Do you know when that was, Mr Bezzina?---It was late October.

PN176

Was that a dispute that gave rise to any proceedings?---Yes, it did. We were in the Federal Commission to try to get the guys back to work under Munro J.

PN177

What was the nature of that?---The guys actually - the employees were on strike for alleged inappropriate use of subcontractors and casual employees.

PN178

What did the Commission do about that?---There's a few points. Can I refer to the document Mr Salmon is holding up for a moment?

PN179

What are you referring to?

**** MARIO BEZZINA XN MR SALMON

PN180

THE SENIOR DEPUTY PRESIDENT: You haven't seen what it is yet.

PN181

MR SALMON: I don't want to lead the witness, Senior Deputy President. I'm simply asking him about the recommendation. I will ask the witness about a recommendation that was issued by this Commission. Are you aware of that, Mr Bezzina?---There was a recommendation issued by this Commission.

PN182

I will show you a document, Mr Bezzina, if you could clarify that that is the document?---Yes, I can clarify that this is the document.

PN183

I seek to tender that, Senior Deputy President.

PN184

THE SENIOR DEPUTY PRESIDENT: It is not necessary to be marked. In fact, I've got the file that had it on it.

PN185

MR SALMON: Since that time, Mr Bezzina, can you explain to the Commission whether this recommendation was complied with?---Since that time, this recommendation has not been complied with and my employees have walked off the job on two occasions since this recommendation.

PN186

Can you explain those two occasions to the Commission?---One occasion was for a number of hours when a subcontractor drove onto site, and the employees stopped work for a number of hours while we dealt with the issue. The other occasion was the other day when I terminated an employee, and my employees walked off the job after the termination for a day or so.

PN187

Mr Bezzina, are you aware of the enterprise agreement that applies to your enterprise?---Yes, I am.

PN188

Are you aware of the dispute procedure under that agreement?---Dispute procedure is quite clear. Yes, I am.

**** MARIO BEZZINA XN MR SALMON

PN189

Has that been followed - - -?---No.

PN190

- - - in relation to the industrial action that you are talking about?---No, totally disregarded.

PN191

Mr Bezzina, in your opinion, is it likely that there will be future industrial action at your workplace?---Without some sort of intervention, I am certain that there will be industrial action in the workplace in future.

PN192

What makes you say that?---The history so far since the EBA has been struck in June/July/August '03. It's just historically that my employees would sooner walk out of the business and cease work than try to discuss the issues at hand.

PN193

Mr Bezzina, what cost - if the employees went out on strike for a day, can you inform the Commission of your estimation of the cost to the company?---For a day's lost production at the workshops, it runs into the vicinity of $60,000 to $65,000 of lost revenue.

PN194

I have no further questions, Senior Deputy President.

PN195

THE SENIOR DEPUTY PRESIDENT: Mr Neilson?

<CROSS-EXAMINATION BY MR NEILSON [3.11pm]

PN196

MR NEILSON: Mr Bezzina, you refer to the cost to the company being $60,000 to $65,000. Is that correct?---That's right.

PN197

Do you have any document present with you in the box that evidences this fact?---No, I have no documentation.

**** MARIO BEZZINA XXN MR NEILSON

PN198

Now, you say that there have been, to the best of your recollection, four occasions when industrial action has taken place as you allege. So there was one occasion in October 2003?---There were two occasions.

PN199

In early October 2003 and then there was another occasion in late October 2003. In relation to the first occasion in October 2003, did you notify the Commission about the alleged industrial action?---No, I did not notify the Commission.

PN200

You said that you were present during proceedings in front of Munro J in late October?---Yes, I was.

PN201

Then you said that there was some industrial action that happened after that occasion, I think one other occasion, about an inappropriate use of subcontractors?---The inappropriate use of subcontractors is an ongoing issue. The industrial action was taken because a subcontractor drove onto our site.

PN202

Now, you say it is an ongoing issue. Why is it an ongoing issue?---Why is it an ongoing issue? It hasn't been dealt with appropriately. We haven't got together with the union to put it to bed, so to speak. The union still accuses of inappropriate use of subcontractors and casual employees.

PN203

Have you taken the opportunity to refer the matter to the New South Wales Industrial Relations Commission or the Federal Industrial Relations Commission?---Have we taken the opportunity?

PN204

Yes?---We have.

PN205

You have?---So has the union.

**** MARIO BEZZINA XXN MR NEILSON

PN206

When was that done?---Well, the first matter was in front of Munro J in October. Since then, the union has dealt with it in the State Commission, and we were in front of Munro J a couple of months ago. I can't remember.

PN207

Was the occasion you were in front of Munro J in late October?---Late October.

PN208

Yes, and was it not the case that the only reason you notified that matter to Munro J was because the employees were engaging industrial action?---Yes, it was.

PN209

When the union notified the matter in the State Industrial Relations Commission, had the employees engaged in industrial action at the time of that notification?---At the time of the notification?

PN210

Yes, at the time of the notification?---No, they hadn't.

PN211

So how can you therefore say that the unions have not complied with the disputes resolution procedure when, by your own admission, they notified the Industrial Relations Commission of the dispute prior to taking industrial action?---Because at the first instance, instead of consultation, they had a stop work meeting on the site and ceased work so that was industrial action.

PN212

But you just told me that they didn't take industrial action before notifying. Which one is it?---They took the industrial action and then they notified.

PN213

So you are changing your answer to what you just gave us before?---Sorry.

PN214

It is funny that in your evidence to my friend, you prefaced your evidence by saying, "correct me if I'm wrong." Now, does that mean you are not exactly sure what has actually occurred on site?---I'm definitely sure about what occurs on site. As the site manager, I am sure of what occurs on site.

**** MARIO BEZZINA XXN MR NEILSON

PN215

Well, why then have you just given me a completely inconsistent answer to two consecutive questions if you are, in your words, "definitely sure" you know what is going on on site?---A little bit of confusion. I do apologise, so the answer to the prior question was the guys did actually take industrial action for a few hours, and then it was - then we were in front of the State Commission.

PN216

A little bit of confusion. Could it not be the case that are actually confused about the number of times that the employees have taken alleged industrial action?---No, I'm not confused about the number of times the employees have taken industrial action.

PN217

Now, you say, I think, that it was the third occasion which was the inappropriate use of subcontractors. How long do you say they were on strike for?---2 to 3 hours.

PN218

Wasn't your answer to Mr Salmon previously that they were on strike for a day or so?---A day or so to the prior industrial action due to the inappropriate use of subcontractors.

PN219

But I just asked you about the inappropriate use of subcontractors and how long they were on strike for, and you just said "2 to 3 hours." Are you confused again?---No, I'm not. Would you like me to - - -

PN220

Which one is it, Mr Bezzina, because it is funny. I asked you one question and I get one answer, and then on the next question, I get a completely different answer, so which one is it?---It's - well, the answers to both times actually - so in late October, it was a day and a half that I lost due to inappropriate use of subcontractors. The issue was not resolved so, again, a number of months ago, the employees walked off the job for 2 hours while a subcontractor was on site.

PN221

So it is now 1 to 2 days plus 2 to 3 hours?---Yes, it is actually, yes.

**** MARIO BEZZINA XXN MR NEILSON

PN222

You didn't think to - tell me how that information has just come to your mind when your answer was different to Mr Salmon and different to me previously?---Sorry. It's because it's an ongoing dispute that has not really been resolved, so on a number of occasions my employees have taken action.

PN223

So if I ask you again, are you going to tell me that it happened for another 1 to 2 hours the next day because it is an ongoing dispute?---No, I will not.

PN224

Now, by your own admission, sir, you admit that you haven't taken the opportunity to refer the matter to the Industrial Relations Commission?---No.

PN225

Why is that if it is a concern that is causing, as you say, numerous disruptions? Why wouldn't you take the front foot?---In our EBA, it allows me to use subcontractors and casual employees, and that is the issue that we are discussing at the moment.

PN226

By your own admission, Mr Bezzina, you say that there is a certain degree of confusion between the parties?---There is a certain degree of confusion.

PN227

So with confusion, it gives rise to the fact that one side does not agree with what the other side is doing. Is that right?

PN228

MR SALMON: I don't think my witness is in a position to answer hypothetical questions like that.

PN229

MR NEILSON: Well, he is making the assertion, your Honour. To save being confused, I'm just saying: who is confused?

PN230

THE SENIOR DEPUTY PRESIDENT: Yes, I will allow the question. I'm not sure that it is a hypothetical question.

**** MARIO BEZZINA XXN MR NEILSON

PN231

MR NEILSON: I will just ask in relation to the confusion you say there is. Does not the mere fact that you say they are confused, does that mean that either party is disputing what is going on?---I, as a manager, am quite clear on my use of subcontractors and casual labour in our EBA. The confusion is on the part of the union and the employees.

PN232

So when the union notified a dispute in the Industrial Relations Commission about this issue, what was your response?---What was our response?

PN233

That is the question?---Our response was to go to the hearing in the State Commission and hear out what the issues were.

PN234

Did your advocate raise any issues about jurisdiction at those proceedings?---Yes.

PN235

What of the issue of - if it is causing you so much concern and so much lost time, wouldn't you rather just sit down and get it over with and try to resolve it at those proceedings?---There are meetings in place to do that.

PN236

Instead of actually submitting to the conciliation procedures of the Commission, you, I presume, instructed your advocate to make a jurisdictional point to contest the Commission exercising those powers?---Initially.

PN237

Yes, so how can you therefore say that ABB has tried to resolve the issues and has complied with the disputes procedure and has, with open arms, welcomed the intervention of the Commission in these proceedings?---As I see the dispute settling procedures, I have followed them to the letter as a site manager, and ABB has a dispute settling procedure that the employees are quite well aware of, so I think we've followed them quite well.

PN238

When a party notifies a dispute to a third party, an impartial third party, you take a jurisdictional point on that?---Sorry, I don't understand the question.

**** MARIO BEZZINA XXN MR NEILSON

PN239

When the union notified to the Industrial Relations Commission in an effort to try and resolve it - not seeking the imposition of orders, I presume - you instructed your advocate to take a jurisdictional point rather than resolve the issue?---Yes, and the outcome of that meeting was to go and conciliate and talk about this issue, yes.

PN240

Now, you say that, in your opinion, further industrial action is imminent?---Mm.

PN241

Is that all it is, your opinion?---It's quite obvious, yes.

PN242

Is it your opinion or is it quite obvious?---It's quite obvious through track record, in my opinion, that further industrial action is imminent.

PN243

So it is quite obvious, in your opinion, that further industrial action is imminent?---It's hypothetical.

PN244

It is a hypothetical, that is right. Are you just assuming that industrial action is going to occur?---No, I'm not assuming at all.

PN245

All right, and where is the document that says that the employees are going to engage in further industrial action?---There is no document.

PN246

So there's no actual document been given to you?---No.

PN247

Have you been approached by Mr Phillips from the union?---On what matter?

PN248

To indicate that there will be further industrial action?---No.

**** MARIO BEZZINA XXN MR NEILSON

PN249

Have you been approached by any other employees to indicate that there will be any further industrial action?---Not at all.

PN250

Not at all?---No.

PN251

So how can you sit there and say that when nobody has actually told you that there would be further industrial action taking place?---My employees have a track record of walking out at the slightest provocation, if you want to call it that, or a decision that doesn't appeal to them, so that's where I'm basing my opinion.

PN252

Provocation? Are you suggesting that you provoke them?---No, I don't provoke them.

PN253

Then why would you suggest a minute ago that they walk out at provocation? I mean, they are your words?---Well, assumed provocation from my employees.

PN254

So your answer has changed again?---Yes, it has.

PN255

Do you do that often?---Not too often.

PN256

Not too often?---No.

PN257

So it happens?---Yes.

PN258

Do the employees change your answers to them often?---I see my employees changing their answers all the time, so the answer to the question is as soon as I make a decision that doesn't appeal to the employees, track record shows that they will walk out on strike or take industrial action.

**** MARIO BEZZINA XXN MR NEILSON

PN259

That track record is based on four occasions, you say, where you are not too sure about the length of the industrial action?---Four occasions where I'm definitely sure of the length of the industrial action.

PN260

A minute ago you weren't?---I'm definitely sure.

PN261

A minute ago you weren't. Can you answer for the transcript, please?---A minute ago is your assumption, yes. A minute ago, I said that there were four occasions where my employees have taken industrial action.

PN262

Yes, thank you, your Honour.

PN263

THE SENIOR DEPUTY PRESIDENT: Just before you sit down, Mr Neilson, you have referred to four occasions which, I take it, are since October last year.

PN264

MR NEILSON: I presume so, your Honour. That is the witness' evidence. I presume that is what he was referring to.

PN265

THE SENIOR DEPUTY PRESIDENT: Now, the enterprise agreement came into operation?

PN266

MR SALMON: Perhaps I might assist the Commission on that, Senior Deputy President. I have a copy of a decision from Commissioner Connor dated Monday, 30 June 2003 in which the Commissioner approves the agreement.

PN267

THE SENIOR DEPUTY PRESIDENT: You have only referred to stoppages since that agreement came in to operation, I assume?---Yes, I have, your Honour.

**** MARIO BEZZINA XXN MR NEILSON

PN268

Why is that?---Why is it that I've only referred to since the agreement?

PN269

Yes, is that the only instances of industrial action?---They're the four instances of industrial action since that agreement was struck in 2003.

PN270

I'm just want to clarify. You have limited your evidence to since that particular agreement came in to operation?---Yes, I have.

PN271

Mr Neilson, I ask that so that you have the opportunity to ask any follow up questions if you wish. Mr Salmon?

<RE-EXAMINATION BY MR SALMON

PN272

MR SALMON: Just in relation to those issues raised by my friend, particularly the four types of industrial action. If you could clarify, Mr Bezzina, about the reasons that you understand the industrial action to be. Could you briefly explain to the Commission what the reasons, or the issue underlying the industrial action for those four occasions?---On the four occasions?

PN273

Yes, please?---On the first occasion it was dispute, or an industrial action about our treating doctors and some clarification on who our employees have to see first, or who they don't have to see first. On the second occasion it was for the inappropriate use - well, the claim from my employees was, the inappropriate use of subcontractors and casual employees in our business. On the third occasion that the employees worked out for a number of hours, was basically the same, inappropriate use of subcontractors. An actual subcontractor walked on to the site and the employees took action to remove him from the site. On the fourth occasion it was a termination of an employee for absenteeism. They were the four occasions.

PN274

I further questions, Senior Deputy President.

**** MARIO BEZZINA RXN MR SALMON

PN275

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bezzina, you may be excused as a witness.

<THE WITNESS WITHDREW [3.28pm]

PN276

MR SALMON: This matter is an application by my client, ABB Australia Proprietary Limited pursuant to section 127(2) of the Workplace Relations Act 1996 for an order to prevent industrial action occurring. If the Commission pleases, there are two fundamental requirements before an order can be made under section 127 of the Act. Firstly, there must be jurisdiction upon which the Commission is equipped to make an order and secondly, there is a question of discretion as to whether an order should be made. In relation to the first on "jurisdiction" 127(1) states:

PN277

If it appears to the Commission that industrial action is happening, or is threatened, impending, or probable in relation to (a) an industrial dispute, (b) the negotiation, or proposed negotiation of an agreement under Division 2 of Part VIB, or (c) work that is regulated by an award or certified agreement. The Commission may, by order, give directions that the industrial action stop or not occur.

PN278

In my submission, the Commission has jurisdiction to make a 127 order in this matter on the basis that there is an award that applies to my client and, in my submission, the evidence demonstrates from my client that its view is, given the track record of industrial action that has occurred on site at least since October 2003 and notwithstanding the parties being bound by an enterprise agreement, future industrial action is probable.

PN279

There has been no evidence put to this Commission to suggest that industrial action since the four lots of industrial action have occurred that industrial action is not probable given the history. There is no evidence to suggest that. The evidence suggests that it is probable and I submit that the Commission has jurisdiction to make the order. In relation to "discretion", I submit that if ever there was - - -

PN280

THE SENIOR DEPUTY PRESIDENT: Just before you go to that, the section refers to work that is regulated by an award, or certified agreement. What work do you say is regulated by, I presume you are referring here to the Metal Engineering and Associated Industries Award 1998 Part I?

PN281

MR SALMON: Yes.

PN282

THE SENIOR DEPUTY PRESIDENT: What work do you say is regulated by that?

PN283

MR SALMON: That award, in my submission, regulates the work of my client's employees. However, that award also operates in conjunction with a State agreement. The work that is regulated is work that is conducted at my client's premises in Wollongong.

PN284

THE SENIOR DEPUTY PRESIDENT: On what basis do you say that?

PN285

MR SALMON: Because an award applies, a Federal award applies to my client at that site and that site, accordingly, is regulated. Now, it may well be as a matter of distinction that there are aspects of the work that are covered by a State agreement, but that does not mean to say that the work is not regulated also by a Federal award.

PN286

THE SENIOR DEPUTY PRESIDENT: I'm just exploring with you whether the fact that the employer may be bound by an award, or rather may be respondent to an award does that mean that the award regulates the work on this particular site?

PN287

MR SALMON: The award certainly regulates the work in relation to how disputes and grievances arise at the workplace. It also regulates the work, if the Commission pleases, in respect to the classification structures and the duties and responsibilities of the employees under the classification structure in clause 24 of the agreement. That clause 24 states:

PN288

Career opportunities for employees within the metals industry are set out in the National Metals and Engineering and Associated Industries Award 1998, however, the classification C(5) to C(1) do not form part of this agreement.

PN289

In my submission, that is a reference to the Federal award and that Federal award in its career structure which contains a 14 level classification structure sets out the classification types and duties and responsibilities of employees. The Commission may or may not be aware that the Federal award contains an extensive 14 level classification structure containing different titles of classifications for each level and also duties and responsibilities for those levels.

PN290

It is a competency-based and skills-based classification and as this classification is implemented the work conducted by it must be regulated by that award, because the work being conducted is done in accordance with the classification structure under the State agreement and it is done in no other way. The way an employee can progress in the career structure is through the careers structure as based in the National Metals Award. The duties and responsibilities for each grade are set out in the classification structure. it is on that basis, we submit, Senior Deputy President, that that is work regulated under an award of this Commission.

PN291

The Commission being invested with the jurisdiction to make an order has a discretion to do so, and I submit, given that my client has been before this Commission last year on a matter which was dealt with by Munro J, who issued a recommendation in the strongest possible terms including (paragraph 3.3) that:

PN292

This recommendation will be a form of record that the Commission notes the industrial action taken and strongly discourages any repetition of industrial action during the life of the enterprise agreement. Should there be any further industrial action at the site the breach of this element of the recommendation should (in Munro Js view) be treated as a circumstance justifying the use of the relevant Commission's regulatory power to prohibit for the life of the agreement further industrial action with recourse to the penalty provisions of the relevant Act if necessary.

PN293

If the Commission pleases, since that recommendation there have been at least two levels of industrial action that have taken place, more recently this week, over a decision by my client to terminate one of its employees. Senior Deputy President, when parties are bound by an enterprise agreement which contains a dispute procedure and in circumstances where there's been previous industrial action and a recommendation in the strongest possible terms that industrial action stop, one would consider that the parties would comply with that recommendation.

PN294

If the Commission pleases, the unions and the employee have not - they have not - and the evidence would suggest that it is probable that industrial action will occur into the future. If the Commission pleases, I have been unable to find any case law of this jurisdiction going to the term "probable" but I have a copy of the definition of the term in the Australian Concise Oxford Dictionary second edition, and "probable" states - and I will hand up a copy without reading the Latin references; I will just go straight to the English - that may be expected to happen or proved true; likely.

PN295

In my respectful submission, given the nature of industrial action that has occurred at this site and in the circumstances, especially in the circumstances of Munro Js strong recommendation, notwithstanding that, it is likely that the employees will, if they don't agree with what Mr Bezzina's decisions or instructions may be, take strike action. The evidence demonstrates that the employees are reluctant to follow the disputes procedure as provided in the relevant instrument.

PN296

My submission is, if a section 127 order cannot be made in these circumstances before the Commission, then I don't know what circumstances in which a 127 order could be made. We press this Commission for an order that is allowable under the Act, that was envisaged by Munro J and that it is appropriate in the circumstances. I hand up to the Commission a draft order that has been prepared. The Commission will note that it is draft only and the term of the order is consistent with Full Bench authorities of this Commission, and I do note one aspect to the order besides the normal provisions in it, that its term - we request that the order come into effect at 4 pm today and shall remain in force until 31 March 2006. That is the date on which the State agreement comes to an end, and that is the date referred to by his Honour Munro J in clause 3.3 of his recommendation.

PN297

In my respectful submission it was clear to his Honour that industrial action is not appropriate in the circumstances, and non-compliance with that recommendation - the parties are aware it would lead to an order to prevent industrial action recurring for the life of the state agreement. I seek the order in those terms, if the Commission pleases.

PN298

THE SENIOR DEPUTY PRESENT: Thank you. Mr Neilson?

PN299

MR NEILSON: Your Honour, as far as the application which is before the Commission today is somewhat unusual from the usual applications that are made pursuant to section 127, and the reason I say that is because, as you will see from section 127(1), the Commission may make orders, and I stress the word "may", if it appears to the Commission that industrial action is happening, threatened, impending or probable. In most cases applications are made for orders pursuant to section 127. The industrial action is actually happening.

PN300

In this instance it is not denied; in fact it is the evidence of the applicant that there is no industrial action happening. Whether or not industrial action is threatened, the applicant does not press this point. It, by its own free admission, admits through its advocate that there is no industrial action threatened. Therefore, your Honour, the issue arises as to whether or not it is impending or probable. The applicant in its submissions, and it says through its evidence, establishes the fact that the conduct complained of which occurred during the course of the week is impending or probable in the future.

PN301

The problem that we raise, your Honour, I think it is a relevant consideration, is that if there is no threat of industrial action, how then or how therefore can it be impending or probable? Usually for action to occur, and given the definition that has been referred to and tendered to the Commission, it says "likely". Now, your Honour would be aware that where something is likely to occur there is usually a threat saying that it is likely to occur. That is how you form the opinion that it is likely to occur, because it has been brought to your attention that the industrial action complained about is likely to occur.

PN302

Your Honour will remember the evidence that has been given by Mr Bezzina. He says that no official from the union, namely Mr Phillips of the AMWU, has contacted him about threatened industrial action. No official from the union - and you take from that, your Honour, or we certainly submit from that, that that means that Mr Phillips has not contacted him to say that industrial action is impending or probable - there has been no approach from any union delegate and there has been no approach from any employee whatsoever to Mr Bezzina to say: in 2 weeks' time or tomorrow, or for however many days, we are going to take industrial action. There's been no threat.

PN303

So the question mark therefore arises in our minds, your Honour, as to how the applicant can come to the opinion as it submits that the industrial action is probable, given that no-one has ever said to them or no-one has approached them whatsoever. We would certainly submit, your Honour, that they have come to the Commission prematurely. If industrial action is happening or if they see a document being circulated saying we are going on strike then they are well within their rights to bring the application, but certainly as it stands, your Honour, it is our submission that they are pre-empting, and it is a word that is circulated a lot these days - a pre-emptive strike, your Honour. Sorry, did my submissions sense some lights buzzing at all, your Honour - a rare occasion.

PN304

Yes, thank you. So certainly in relation to that point, your Honour, we have serious question marks as to whether or not the opinion of Mr Bezzina, and that is all that can be qualified as and in his own evidence he says it is his opinion, is warranted enough for this Commission to issue an order that has severe penalties for those who are the subject of it. Now, your Honour will make reference to, no doubt, the strong recommendation, as has been alluded to by my friend of Munro J. Now, in its evidence the applicant led no evidence whatsoever as to the subject of those proceedings and/or the nature of those proceedings. All they said was what the issue was about.

PN305

We do not know what actually occurred during the course of those proceedings because the applicant failed to elucidate that evidence. So Munro J, may have, in making this recommendation, and we cannot supplant ourselves for the mind-set of Munro J at a particular time, may have had a particular issue or there may have been a particular set of circumstances that led him to make the recommendation and the proposed 3.3. The applicant who was present during proceedings where the recommendation was made has led no evidence in that regard, your Honour, so certainly how the recommendation of Munro J assists the Commission - we would certainly submit that the recommendation is of limited utility, but that being said, your Honour, each particular occasion turns on the facts as they are - as they stand and in relation to this matter, the one issue that does carry - - -

PN306

THE SENIOR DEPUTY PRESIDENT: Just before you go on.

PN307

MR NEILSON: Yes.

PN308

THE SENIOR DEPUTY PRESIDENT: I mean, the transcript of those proceedings is on the public record, such proceedings as there were prior to the private conference.

PN309

MR NEILSON: Your Honour, with respect to the public record, yes, those proceedings are, but it is a matter for the applicant to make its case and to justify the circumstances in which Munro J made the order. It has not done that. The other point that the public record nature of the transcript presents is an issue of judicial notice. Whether or not the Bench, as it were, can take outside matters into account when the applicant in or the respondent has not made them a subject of the proceedings, may give rise to certain issues under the Evidence Act, your Honour. I know that the Evidence Act does not apply but it is certainly of relevance to Commission proceedings.

PN310

The point Munro J makes at 3.1 is that the Commission's concern that it is an undesirable - that an issue about the Commission's jurisdiction under section 127 - now in issuing that recommendation, your Honour, Munro J, on my reading of it, and I am a little bit confused by it but on my reading of it, I take that to mean that His Honour himself had concerns about the Commission's jurisdiction to issue the order, either in the terms sought or in the order generally. Now, your Honour, perhaps that is the reason - - -

PN311

THE SENIOR DEPUTY PRESIDENT: Well, you did not quite read it right when you read it. As I look at it, the recommendation that is to be read:

PN312

The Commission recommends that...

PN313

And it goes through (1) and (2) and then (3) is:

PN314

that the parties note the Commission's concern that it is undesirable that an issue about the Commission's jurisdiction under section 127 and generally, should be left unresolved in circumstances where industrial action is taken in clear defiance of a standard dispute resolution procedure.

PN315

You read an extra word in when you read.

PN316

MR NEILSON: Sorry, it was not intentional.

PN317

THE SENIOR DEPUTY PRESIDENT: That is probably, as you say, not intentional.

PN318

MR NEILSON: Your Honour, certainly Munro Js concerns about, as he says, the clear defiance of the standard dispute resolution procedure, whether or not any member of the Commission has that particular concern, and I guess what the Commission can do in that regard is limited by the operation of the Act and if the Commission does not have the power to make the order sought, no matter how concerned it is about conduct, then its hands are basically tied and certainly that would be - the first submission of the applicant in this matter is that the Commission does not have the power to make the order in the terms sought on the basis that there is no action that is, in the words of the Act, in section 127:

PN319

(1) impending or probable.

PN320

Now, if the Commission were of a mind-set to determine that there is industrial action, or it has jurisdiction pursuant to a section 127, we note that the various decisions relating to the interpretation of section 127 and the application thereof, deal with issues of what is the Commission's discretion with respect to the issuing of an order. In any application of the Coal and Allied decision - certainly is a relevant decision for the Commission to consider in this matter. In making out a case pursuant to section 127 the applicant must show firstly, the necessary jurisdictional requirements and secondly, the Commission must be persuaded to exercise its discretion to make the order sub sought.

PN321

Now, the onus of proving that, your Honour, does of course rest with the applicant. Now, the evidence of Mr Bezzina, certainly our submission is that it should not be given much weight at all - in response to questions from Mr Salmon, he gave one answer. In response from questions from me he gave another answer and then in response to a follow-up question he gave a completely different answer. In his own words, and the transcript will reflect this, in response to Mr Salmon's first question, he said: correct me if I'm wrong, and then said in relation to alleged industrial action that happened: it went for a day or so, but then later said that: it went for 2 to 3 hours and then later said: it went for a day or so, followed by 2 to 3 hours, so the evidence that has been given by Mr Bezzina, your Honour, we would submit is completely unreliable.

PN322

For a manager that asserts that his company is losing $65,000 a day for every day of industrial action, certainly we would submit it is not unreasonable for the Commission, and indeed the respondents, to expect that he would be sufficiently certain about the industrial action upon which he alleges. Now, your Honour should keep in mind that it is his application and if he is seeking to provide evidence that industrial action has occurred, then he should be sufficiently certain about that and certainly, in our submission, he was not and little weight should be placed upon his evidence given the serious nature of section 127 orders.

PN323

Now, your Honour, referring back to the discretion of the Commission to issue orders, Marshall J, in the Metal Trade Industries Association and the AMWU commented:

PN324

The making of an order by the Commission under section 127 is a very serious step. Persons who are required to comply with such an order must know with certainty that it is directed towards their conduct. Furthermore, an order under section 127 of the Act is a foundation upon which an application may be made under section 127(6) and (7) of the Act. Failure to comply with orders of the Court under those subsections may lead to contempt of Court.

PN325

Now, the Commission's discretion as to whether or not to issue orders is generally at large. In the Coal v Allied decision, a decision well known by the Commission as constituted, the Full Bench said:

PN326

That the exercise of the discretion is a serious step in a sense that it involves both the finding that the relevant industrial is, or will be, illegitimate, and the determination that a continuation or a commencement of it should be unlawful as a contravention of the Act.

PN327

Now, the word there "illegitimate" is important, your Honour, for the purposes of exercising and deciding upon whether the Commission will exercise its discretion, insofar as Mr Bezzina, on behalf of the applicant, alleged that the unions had not followed the dispute settlement procedure on several occasions. He says that the reason that the industrial action had occurred, or the main issue in dispute was in relation to the issue of sub-contractors. Now, when asked specifically in cross-examination what had happened about that particular issue, and whether or not the company had notified the Commission about the issue of sub-contractors and its interpretation, Mr Bezzina said they that hadn't. The reason they hadn't was because, in his opinion, the company was right. Now, he then went on - - -

PN328

THE SENIOR DEPUTY PRESIDENT: Sorry, say it again - because in his opinion?

PN329

MR NEILSON: The company was right. What he was doing was right. He was well within his knowledge of it. Now, in response to some further questions, your Honour, it was asked again whether or not he was of the opinion that the unions had not complied with the dispute settlement procedure and he said "Yes". Then asked specifically about who notified the current dispute about the sub-contractors, that is, in his own words: the dispute that had given rise to some much of the angst, he said that the unions had notified it. So your Honour, the unions had raised a concern.

PN330

Mr Bezzina had clearly indicated that he wasn't going to address that concern because he was right. The company was addressing it in the way it thought fit. So what was the next step for the unions? They referred it to - by the applicant's own admission, to the Industrial Relations Commission. Now, your Honour, we would certainly submit that is the correct course to be taken. The employer had that opportunity and it chose not to. The unions had that opportunity and it chose to.

PN331

So how the submission can be made that the action and the conduct of the unions has been completely illegitimate and in total contravention and disregard of the dispute settlement procedures is beyond me. Now, your Honour will note that the unions notified the matter before Commissioner O'Neil of the State Industrial Relations Commission after the issuing of the recommendation by Munro J. Now, that certainly, we would say, is a relevant consideration for this Commission. Then issuing of the recommendation by Munro J was complied with insofar as there was a resumption of work after the issuing of the recommendation.

PN332

Further to that, when another dispute arose about the issue of sub-contractors, the unions referred it to the State Commission. Now, leaving aside the issue of jurisdiction, your Honour, once there the company instructed its advocate to oppose the resolution of the issue by submitting that the New South Wales Industrial Relations Commission did not have the power to deal with the dispute. Now, the unions went there under a provision of the State Act, which is section 130, which is the equivalent to section 99 of the Workplace Relations Act.

PN333

Now, the purpose of those disputes, as the Commission as constituted would be aware, is to try and solve the problems that are between the parties by way of conciliation. The unions had extended the hand of conciliation to the company through the State Commission, and the company made a conscious decision to instruct its applicant to oppose that conciliation, and took a nit-picking jurisdictional point. So the question therefore arises, your Honour, which is relevant to your exercise of discretion, is whether or not the company is actually genuine about resolving the issues in dispute, because in any application for section 127 orders, and keeping in mind the application is based on an interlocutory application in the Court.

PN334

By that it has the effect of an injunction of sorts. Injunctions are based on the principles of the law of equity, your Honour, and the law of equity maintains that for any party to make an application and to receive the benefit of the law it must come with clean hands. Now, has the applicant to this matter actually come with clean hands, when in its own words the cause of so much dispute down there was referred to the IR Commission by the unions, and it took the opportunity not to solve the matter, but to delay it and to contest the matter. So whether or not the company comes to this matter with clean hands, we would certainly submit, is a relevant consideration for this Commission, and we would certainly submit that it has not.

PN335

THE SENIOR DEPUTY PRESIDENT: Just before you pass off that.

PN336

MR NEILSON: Yes?

PN337

THE SENIOR DEPUTY PRESIDENT: From what has been said so far in proceedings, I would assume that the point that was taken was that the dispute resolution procedure that was to apply was the Federal Metals Award dispute resolution procedure which refers to this Commission in those circumstances?

PN338

MR NEILSON: Yes, I understand that was the case your Honour, yes.

PN339

THE SENIOR DEPUTY PRESIDENT: Yes, okay. I made that assumption based on what has already passed in proceedings here, yes.

PN340

MR NEILSON: Yes, the reason I raise it, your Honour, and the reason that I think it is of importance to this Commission's determination of the matter is that Commission members are impartial third parties, and the Commission had indicated to the parties that it was prepared to try and resolve the issues. Certainly, if it is of so great concern to the company that it is costing them $65,000 a day, and that they want the industrial action to cease, then as someone who is suffering that damage, I would certainly say: well, I want this resolved as quickly as possible, and I don't care who resolves it, just so long as it is resolved.

PN341

So that is the reason why I raise it, your Honour, is that an impartial Commissioner had presented an opportunity for resolution and the company rejected it. Now, the reason the Commission's - or the conduct of the parties to the matter is of relevant consideration before the Commission is in relation to a decision of Vice President Ross in Patrick Stevedore's No 1 and Patrick Stevedore's No 2 of print 8838. Now, the Vice President identified a number of factors that may be taken into account by the Commission in exercising the discretion, and one of those was the conduct of the parties. It says in his comments about the parties:

PN342

Actions by applicants to these proceedings which may have provoked or exacerbated the industrial action in question may be relevant to determination on whether or not that action is illegitimate.

PN343

Now, I don't want to place too much emphasis on it, but I think it is important, given the evidence that he has been given - that Mr Bezzina has given, in his own words he said: that the company had been provoking the nap. Those were his own words, your Honour, and they weren't drawn out through an unnecessary specific question by the respondent in the cross-examination of him. It was an invitation to answer a specific question, and he said: well, it is in relation to provocation. Those were his own words, your Honour.

PN344

Certainly, the consistency of his evidence, once again, it establishes the consistency of his evidence. On the one hand he claims that the unions are the bad people here, and the employees are the bad people, and they need to be punished by this Commission. On the other hand he says that it was an issue of provocation. It just shows the inconsistency of the evidence that he has given, and due to the seriousness of the issue, that evidence should not be relied upon by this Commission. Now, your Honour will be aware of the other matter that is of relevance, and that is the compliance with the dispute settlement procedure.

PN345

Your Honour, we submit that since the recommendation of Munro J, we have complied with that procedure. The issue of such much angst was referred to a Commission. Whether or not that is the correct Commission - at least they were trying to get it somewhere and get it resolved. The company had opportunity to refer it to the correct Commission in its mind, and it chose not to.

PN346

The company had the opportunity after the alleged third instance of industrial action to bring the matter to the IR Commission, it chose not to. Now, all of a sudden they say there is a pressing need for this Commission to issue section 127 orders to prevent industrial action that nobody has said to them that is going to occur and nobody is giving them a document that says it is going to occur.

PN347

The issue of the orders sought in these proceedings is that essentially what you have is Mr Bezzina instructing an advocate to come to this Commission today because he thinks something is going to happen. That is his opinion, your Honour, and with all respect to Mr Bezzina, whether or not his opinion is of sufficient weight to determine and make up the Commission's mind with respect to the issuing of such a serious order, we have serious doubts about it.

PN348

Now, your Honour would be aware that the Evidence Act does not apply to proceedings in the Commission, but it is often referred to as a guide for the Commission in determining what is procedural and fair and the conduct of the proceedings. I don't have the specific provision of the Act in front of me, your Honour, but it is a general principle of the Evidence Act that opinion evidence is excluded because it does not assist anybody in the determination of a dispute because the Tribunal and decision-maker should be influenced by facts, not by somebody's opinion.

PN349

Mr Bezzina's opinion in this particular matter, we submit, is irrelevant. With respect to Mr Bezzina, that is the only thing he comes to this Commission with, in his mind something is going to happen. He does not know when, he does not know where, but something is going to happen. For all we know, your Honour, Mr Bezzina might be paranoid. I'm sure he is not, but he might be. If this Commission gets in to the process of rewarding - - -

PN350

MR SALMON: There was no direct evidence about that, Senior Deputy President.

PN351

THE SENIOR DEPUTY PRESIDENT: Is that a line you want to pursue, Mr Neilson?

PN352

MR NEILSON: No, your Honour. I was just going to say, if this Commission gets in to the process of rewarding paranoia then I will never leave. Certainly, your Honour, those are the submissions we wish to make. The application is not supported by any evidence whatsoever, it is supported by an opinion of Mr Bezzina. That opinion is based on uncertain issues, "flip flops", to use a word that has come to prominence.

PN353

Certainly, we would submit, that given the seriousness of the orders sought and given the serious consequence of those orders and the length, for that matter, of the orders sought the order should not be issued. If the Commission was of a mind-set to issue the order I have some comments about the form of the order sought and particularly the length of the order sought, but I will save those submissions until your Honour has made a determination.

PN354

THE SENIOR DEPUTY PRESIDENT: I suggest we come back to any comments on the order itself and I will certainly give you the opportunity to make submissions on that.

PN355

MR NEILSON: Thank you.

PN356

THE SENIOR DEPUTY PRESIDENT: Mr Salmon, was there anything further you wanted to say because, as Mr Neilson correctly highlights, I have a couple of questions on the order sought anyway.

PN357

MR SALMON: Yes, I will be brief in my reply to Mr Neilson's submissions. In relation to Munro Js recommendation which was raised by Mr Neilson, especially paragraph 3.1, in my submission, it is important to note that Munro J expressed an undesirability of the parties relating to the jurisdiction in 127. I note, and I was involved in those proceedings, his Honour did not determine it. His Honour did not determine issues of jurisdiction and discretion about 127. The parties went in to conference and this recommendation came out of it.

PN358

This, in my submission, does not create, or should not create any doubt to the Commission, as presently constituted, in finding - given the circumstances of the case and the evidence that has been presented, that this Commission does have jurisdiction. His Honour, in this recommendation did not determine a 127 jurisdiction. I also note clause 3.3 again in relation to Mr Neilson's submission that we should be cognisant of the matter before the Commission.

PN359

My submission is, Mr Neilson is putting the cart before the horse. His Honour says in paragraph 3.3: should there be any further industrial action. Now, he didn't in any way seek to limit his words in this recommendation to the specific circumstances of the case. He was aware of what was going on at that site and made a recommendation that:

PN360

If there is any further industrial action at the site then it would be treated.

PN361

And it goes on. His Honour did not narrow that. His Honour's words in relation to that are unequivocal. Any further industrial action and a 127 would apply. Senior Deputy President, the parties, the AMWU and the AWU are fully aware of it. They are aware of this recommendation. They are aware that if they do it again they could face 127 orders.

PN362

THE SENIOR DEPUTY PRESIDENT: So why didn't you notify the third instance of industrial action, in Mr Bezzina's evidence, to the Commission? As I understand it, the second and the fourth have been notified, but not the third.

PN363

MR SALMON: The third, I didn't receive instructions in relation to that matter. I do note and recall from Mr Bezzina's evidence that that was a stop work meeting for a period of time. Now, what my client decided to do in relation to that I don't know and I can't answer that question. In my submission, it would have been open to my client to pursue 127 at that particular point in time, it did not do so.

PN364

THE SENIOR DEPUTY PRESIDENT: It weakens the argument somewhat though, does it not? You have just made the argument that the parties were aware of this recommendation. That applies equally to the employer, but the employer, presented with the opportunity, didn't act on it. So how do you say that should weigh in considerations?

PN365

MR SALMON: Well, my submission in relation to that is that there was industrial action, a third occasion. My client elected not to resolve it. I do not know the reasons for that, but that does not take away the right of my client to pursue section 127 orders, nor should it weaken this Commission's discretion to issue the orders because it demonstrates that industrial action is a matter of life on this site. This is what happens. Just because my client didn't do anything about it in relation to a stop work meeting for 2 hours it should not be penalised for its ability to obtain an order in to the future if it considers that this is a way of life.

PN366

Perhaps my client may have been thinking on the positive side that maybe it won't happen after that stage and gave the union and the employees the benefit of the doubt. I don't know, but I make the submission that it should not be looked at adversely to my client because it didn't pursue any 127 order at that time. There may have been good reason to do so. What is in front of my client is a continuing behaviour of industrial action that it wishes to stop.

PN367

THE SENIOR DEPUTY PRESIDENT: Mr Bezzina's evidence was that there was industrial action with a duration of 2 to 3 hours, following which the union notified a dispute to the State Commission.

PN368

MR SALMON: Yes. I understand that a jurisdictional issue was raised, but that did not prevent the parties from continuing to discuss that matter. I note that there is no industrial action after that time about that issue, but there has been industrial action after that time about another issue, which is the fourth occasion. Now, we may well have had resolution or inadequate - - -

PN369

THE SENIOR DEPUTY PRESIDENT: Presumably about quite a different issue this time.

PN370

MR SALMON: It is quite a different issue and that is the point. I mean, in my submission, you could give credit to some submissions if there was a consistency about one particular issue, but it is not. We are dealing with different issues as they arise and it may well be that the parties are entering into dialogue about this issue of use of contractors at the site but we are not necessarily dealing with that in isolation, Senior Deputy President, we are dealing with industrial action over different issues. It is a way of operation, not a grievance over one particular matter and my client should not be penalised if it did not notify the Commission of a 127 order because it may - there's been no industrial action since that time about that issue.

PN371

That issue may well have been resolved but what we do have is a pattern of industrial action when employees don't like what they hear. Now, just on provocation, I mean, my friend raised provocation. The witness clarified his position on that, and in relation to provocation he clarified that to mean the - it may be provocation in the eyes of the employees or the union, not that he was being provocative in itself, or of himself.

PN372

THE SENIOR DEPUTY PRESIDENT: Can I just take you back to the nature of the industrial action?

PN373

MR SALMON: Yes.

PN374

THE SENIOR DEPUTY PRESIDENT: You have - - -

PN375

MR SALMON: Which industrial action, Senior Deputy President?

PN376

THE SENIOR DEPUTY PRESIDENT: Well, that is what I am really asking you about. The section refers to 127 (1).

PN377

MR SALMON: Yes.

PN378

THE SENIOR DEPUTY PRESIDENT:

PN379

If it appears to the Commission that industrial action is happening or is threatened, impending or probable in relation to...

PN380

I mean it was three alternatives.

PN381

MR SALMON: Yes.

PN382

THE SENIOR DEPUTY PRESIDENT: I understand your case to be that you are wanting to persuade me that industrial action is probable in relation to work that is regulated by an Award and therefore then to exercise discretion. Now, industrial action is a defined term in section 4.

PN383

MR SALMON: Yes.

PN384

THE SENIOR DEPUTY PRESIDENT: What industrial action do you say is probable?

PN385

MR SALMON: Industrial action - - -

PN386

THE SENIOR DEPUTY PRESIDENT: We will just put to one side: happening, threatened, impending. I understand it to be relying only on probable.

PN387

MR SALMON: Yes, the distinction.

PN388

THE SENIOR DEPUTY PRESIDENT: Yes.

PN389

MR SALMON: "Probable" would be an industrial action in circumstances where my client makes a decision to do something, such as terminate an employee or give an employee a warning and the employees walk out, strike action. That is the flavour of the industrial action that has occurred to date.

PN390

THE SENIOR DEPUTY PRESIDENT: So what is that in terms of the definition?

PN391

MR SALMON: Under section 4?

PN392

THE SENIOR DEPUTY PRESIDENT: Yes.

PN393

MR SALMON: That would be, in my submission:

PN394

A ban, limitation or restriction on performance of work.

PN395

They are not doing it. They are banning the work. They are restricting the performance of work. That is subsection (b) or - and also, further (d):

PN396

A failure or refusal by employee -

PN397

more so the failure -

PN398

by persons to attend for work.

PN399

In my submission, the strike action as evidence that the site falls within the definition of industrial action on the basis of those two subclauses. They are refusing to comply with their legal obligations to perform work. They are restricting the way of what they are doing in relation to work. They are banning the work, they are refusing to do it, they are failing to do it.

PN400

THE SENIOR DEPUTY PRESIDENT: So you are saying, I presume, that it is - it comes under (d):

PN401

A failure or a refusal by persons to attend for work...

PN402

MR SALMON:

PN403

...or a failure to, or refusal to perform any work.

PN404

THE SENIOR DEPUTY PRESIDENT: Yes.

PN405

MR SALMON:

PN406

If the purpose...

PN407

Etcetera, etcetera.

PN408

THE SENIOR DEPUTY PRESIDENT: On the basis that the persons are employed by constitutional corporation, I presume?

PN409

MR SALMON: Members of - that may well be, that they are members of an industrial organisation. I have not delved into this section in recent times, Senior Deputy President.

PN410

THE SENIOR DEPUTY PRESIDENT: Yes, and there's a number of qualifiers - well qualifiers is probably not the right word to use, but - - -

PN411

MR SALMON: Yes.

PN412

THE SENIOR DEPUTY PRESIDENT: - - - the failure is if the circumstances in (i) to (iv).

PN413

MR SALMON: Apply.

PN414

THE SENIOR DEPUTY PRESIDENT: Apply - sorry, or one of the circumstances of (i) to (iv) apply.

PN415

MR SALMON: Yes.

PN416

THE SENIOR DEPUTY PRESIDENT: And is not excluded by - - -

PN417

MR SALMON: And (iii) is:

PN418

Persons employed by a constitutional corporation.

PN419

I think (i) may well be within employees of a union and that could still constitute industrial action for the purpose of the Act. However, (iii) would go to our circumstance of a constitutional corporation which my client is. My friend has referred to Coal and Allied and a reference to "illegitimate action." The law has moved on from that decision and in fact in CPU and A.G. Coombes, a Full Bench decision including the President, the late Senior Deputy President Polites, and Commissioner Hingley, essentially held that the discretion to be exercised in issuing 127 orders is not to look at whether the industrial action or probably or impending industrial action is illegitimate - I have a copy of the decision which is print Q1727, I am happy to hand that up to assist the Commission.

PN420

On page 2 of the decision, last paragraph, halfway through, the Full Bench states, and I quote:

PN421

The discretion -

PN422

that is the discretion of the 127 -

PN423

is to be exercised on normal principles taking into account all of the relevant circumstances including, but not limited to, the nature and extent of the industrial action.

PN424

In my submission, in exercising its discretion this Commission should take into consideration the history of what has happened in relation to industrial action on this site. The evidence that demonstrates that there has been four occasions of strike action in the form of industrial action and the circumstances relating to Munro Js recommendation.

PN425

Now, just on the point that Mr Neilson raised regarding the union issuing the notification in the New South Wales Commission. In my submission it should be this Commission, that is the proper course to take under the disputes procedure, but notwithstanding that, we are dealing here with not only behaviour of the union but behaviour of the employees. Now, the union may well have notified the Commission of a dispute. The point is, the employees are of a mind in these circumstances to undertake industrial action before trying to resolve an issue. Industrial action first, resolution of the dispute or grievance or issue later. That is not what the parties agreed to under their relevant instrument. The parties agreed that there would be a step-by-step process to take and I note in my client's Enterprise Agreement it talks about normal work continuing whilst a process is in place.

PN426

That distinction should be made clear, in my submission. The union may well have notified the Commission but we have employees that are willing to walk out on the grass as a matter of habit if they do not like a decision that is being made. I also understand, Senior Deputy President, that whilst jurisdictional issues have been raised my client, from my experience, has been always willing to discuss the issue. I appeared before Commissioner O'Neil in Wollongong on 20 February. I raised an issue about jurisdiction to say that the matter should be referred to the Federal Commission, but notwithstanding that, we are prepared to discuss.

PN427

MR NEILSON: With respect, your Honour, is Mr Salmon making closing submissions or giving evidence?

PN428

MR SALMON: I am making a submission that - clarifying a point raised by Mr Neilson that he made the assertion that my client is not about trying to resolve issues, it is about raising jurisdictional issues and that is it. I'm clarifying the point by saying: well, no, that is not the case; my client's position is that it is prepared to discuss issues. And I note, and I remake the submission, there's been no further industrial action about the subcontractor issue. The most recent form of industrial action has been about the dismissal of an employee.

PN429

Mr Neilson has also made some wide submissions that we must have threatened, or evidence of threatened in terms of - or probable industrial action - we must have evidence of that in terms of either someone said something about probable industrial action or there must be a document. In my submission that is not what the section is going to. The section is going to whether, given the circumstances of the case, this Commission can prevent industrial action if it considers that industrial action is probable.

PN430

If this Commission thinks that industrial action is probable, or in the dictionary definition likely, the Commission can make the order. It doesn't need to be satisfied that there is a document that says that it is probable. We do have clear evidence of Mr Bezzina that says that industrial action has occurred, strike action has occurred on four occasions. That is beyond doubt. There is no evidence to rebut that. Mr Bezzina is entitled in my submission to form his opinion that industrial action is probable, given the circumstances. He is entitled to come to the view that industrial action is probable given the track record.

PN431

If the Commission pleases, my client presses for the order. It submits that the jurisdictional basis on which the 127 order can be made has been made out. It submits that in relation to discretion there are proper and valid reasons why this Commission should exercise its discretion to issue the 127 order a sought. If that is not done my client is of concern that industrial action is likely or probable to continue, if the Commission pleases.

PN432

THE SENIOR DEPUTY PRESIDENT: Mr Neilson, you wanted to make some additional submissions in relation to the - - -

PN433

MR NEILSON: Your Honour, just maybe perhaps in relation to a question your Honour asked Mr Salmon. It was in relation to the definition of industrial action, and it defines industrial action as being a ban, limitation or restriction on the performance of work or an acceptance or offering for work. Mr Bezzina gave no evidence whatsoever that the type of action contemplated by section 4 and as defined by section 4 as industrial action is indeed going to occur. Mr Salmon said so. Mr Bezzina said so?

PN434

MR SALMON: Yes, it is likely to occur - in the evidence.

PN435

MR NEILSON: That is a question mark about whether or not he has actually given, so my friend asserts that he has, but from my recollection he did not specifically identify the particular action complained of. Your Honour, it is on that basis that we say the Commission should not exercise a discretion. In relation to Mr Salmon's final submission that the Commission - or he was concerned about employees resorting to strike action and this Commission should take preventative measures to prevent that - section 127 provides that the Commission - - -

PN436

MR SALMON: If the Commission pleases, I understood - it is not a question of a reply to a reply. My friend is not in a position to do that unless he is directly answering a question raised by the Senior Deputy President. I'm not too sure whether he is answering a question directly raised by you or whether this is a submission in reply to my submission, which is not obviously allowed.

PN437

MR NEILSON: With respect, your Honour, the submission Mr Salmon made about the urgency, if you like, was a fresh submission which I let pass but he made a submission about the need for the Commission to issue the order on the basis that industrial action is going to occur in the future etcetera, etcetera. All I wish to say, Commissioner, is that section 127 provides that the Commission can deal with a dispute or an application as quickly as practicable, and often that is on the same day. If something happens then they are more than entitled to bring it back straight away; perhaps the Commission could offer them liberty to apply on 24 hours' notice. It is a matter for the Commission, but I leave the submissions there.

PN438

THE SENIOR DEPUTY PRESIDENT: Yes. I was really giving you the opportunity to make the submissions you wanted to about the document that Mr Salmon has passed up.

PN439

MR NEILSON: Your Honour, I was perhaps hoping you would make your judgment before - - -

PN440

THE SENIOR DEPUTY PRESIDENT: Well, I'm really looking at the time and saying, well, given that we are all here, we ought to deal with everything at the one time.

PN441

MR NEILSON: Sure.

PN442

THE SENIOR DEPUTY PRESIDENT: I think that is the most convenient and appropriate course.

PN443

MR NEILSON: Your Honour, the main issue that I take with respect to the order is that the order seeks to apply for approximately 18 months. We would say that this is I believe the first time an application has been made pursuant to section 127 during the life of the current enterprise agreement. It would certainly be harsh and unjust if the Commission were to slap on an order for some 18 months on the basis of the first application that has been given and for that matter has been granted by the Commission.

PN444

THE SENIOR DEPUTY PRESIDENT: Yes. Wasn't the previous matter before Munro J also a 127 application?

PN445

MR SALMON: Yes, it was.

PN446

MR NEILSON: I apologise. I - - -

PN447

THE SENIOR DEPUTY PRESIDENT: Yes, certainly that is how the file is noted.

PN448

MR NEILSON: Your Honour, noting that it was a 127 application no order was in fact issued.

PN449

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN450

MR NEILSON: If the Commission issues an order with respect to this matter we would certainly say it would be harsh for the Commission to issue what is essentially the first order preventing industrial action for some 18 months. These employees, if you say that they are engaging in industrial action and deserve an order, should not be punished for 18 months. We would say that is harsh, and it would be an unreasonable length of time to impose an order upon, given the serious consequences that arise with respect to the breach of orders.

PN451

THE SENIOR DEPUTY PRESIDENT: Let me test you on that, though. When you read Munro Js recommendation it is pretty clear, isn't it, that he is suggesting change needs to take place because he refers to, 3.2, that:

PN452

That priority should be given to having delegates, employees and ABB accept that there's a mutual obligation to give full and reciprocal effect to the observation of each step in the dispute resolution process.

PN453

Then 3 has been much commented on. Then 4:

PN454

That an opportunity be taken for the parties to jointly promote an acceptable level of understanding and commitment ...(reads)... in sustaining the capacity to provide secure employment on reasonable terms.

PN455

So it is fairly clear, isn't it, from the recommendation that Munro J is suggesting that there's some change of behaviour required based on a different understanding?

PN456

MR NEILSON: Your Honour, that would certainly seem to come through from the recommendation of Munro J. If he was of that opinion at the particular time, and with respect to Munro J, then he should have issued a section 127 order for the length of the agreement. The fact he did not do that certainly is of relevance. The other point that is of relevance is that we would submit that this Commission should not, or the Commission as constituted should not substitute itself for Munro J and seek to effect a recommendation made by Munro in circumstances unknown to it, with respect to the transcript issue.

PN457

THE SENIOR DEPUTY PRESIDENT: I make it clear, Mr Neilson, I absolutely agree with that submission, and you can be sure that that won't happen.

PN458

MR NEILSON: So, your Honour, it is on those two bases that we find little utility that could be gleaned from the recommendation made by Munro J on the basis that they were a particular set of circumstances at a particular time that no longer exists now, but in relation to the order, we would certainly say that it would harsh to impose it for a term of 18 months. There are jurisdictional issues perhaps, your Honour, with respect to whether or not the order can bind the union, but we take no issue with that at this particular time.

PN459

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Salmon, turning to the order and focusing submissions on why the order is sought in the terms that it is - - -

PN460

MR SALMON: Yes?

PN461

THE SENIOR DEPUTY PRESIDENT: - - - I must say I had a similar question to the issue that Mr Neilson has raised as to other than seeking to act on the words of Munro J in the previous recommendation, why is the order sought for the length of time it is?

PN462

MR SALMON: If the Commission pleases, the length of time sought is because of Munro Js recommendation.

PN463

THE SENIOR DEPUTY PRESIDENT: I see.

PN464

MR SALMON: It is sought - and I was at that recommendation, and that started off as a 127, and then the parties moved into conference and came up with a recommendation that the parties accepted. It was very clear, very clear, to the parties what would happen and what is required to happen at that site. You follow the disputes procedure and if you don't take any industrial action, don't expect next time - it is almost in the form of a final warning in a dismissal scenario: if you do this again, watch out. His Honour made it clear for the life of the agreement.

PN465

We have sought to put that in the order and that is what we say was understood by the parties prior to taking two more sorts of industrial action. That is why we say the order should reflect that time. I don't propose to make a submission otherwise.

PN466

THE SENIOR DEPUTY PRESIDENT: Now, in the order that was applied for, the terminology in what is now 3.1 was different, is it not?

PN467

MR SALMON: Yes, it is.

PN468

THE SENIOR DEPUTY PRESIDENT: Do you want to take me through why you seek the terminology here?

PN469

MR SALMON: The terminology is slightly different insofar as the draft order claimed to the application went to industrial action to stop - and we are not dealing with the circumstance in which industrial action is actually taking place. We are talking about: it shall not occur, or where the action is occurring, it shall stop. So the heading of that clause 3 was changed to more accurately reflect what is being sought. It is not only industrial action to stop. It is industrial action to not occur, and where such action is occurring, it shall stop.

PN470

In relation to - the other clause varied was 2.3. It says, "the delegates and members" and that has been varied to "members and eligible members" to give it proper application. There may well be an employee who is employed by my client who is neither a delegate nor a member but has engaged in, or may engage in industrial action. That is the basis of that. Apart from that, Senior Deputy President - - -

PN471

THE SENIOR DEPUTY PRESIDENT: Well, I'm just noting while looking at this on the bench, and I haven't done a detailed comparison, but continuing to look at 3.1, in the third line, the words are:

PN472

...being industrial action organised or engaged for the purpose, or with the main apparent intended effect of disputing or protesting a decision or action by the company, taken or done in exercise of an available managerial award-based right, or generally recognised managerial discretion, or for any other reason shall not occur, or where such action is occurring, will stop.

PN473

In the previous draft, it was specific to the dispute that had been the cause of the most recent action, was it not?

PN474

MR SALMON: I'm just analysing the documents, the draft orders, to see where the difference lies in 3.1. I'm not sure of the question, Senior Deputy President.

PN475

THE SENIOR DEPUTY PRESIDENT: Well, I'm just checking that, indeed, that has been changed.

PN476

MR SALMON: I will just compare it if I could.

PN477

THE SENIOR DEPUTY PRESIDENT: Well, the nature of the industrial action is now dealt with in different terms.

PN478

MR SALMON: In 3.2 or 3.1?

PN479

THE SENIOR DEPUTY PRESIDENT: 3.1.

PN480

MR SALMON: I can't see the difference, Senior Deputy President, in any terminology in that clause between the draft in the application and the draft handed up.

PN481

THE SENIOR DEPUTY PRESIDENT: All right.

PN482

MR SALMON: If your Honour is questioning the terminology of that clause per se, as I submitted earlier, these draft orders have been taken from a Full Bench decision to give clarify to what is required under an industrial action order.

PN483

THE SENIOR DEPUTY PRESIDENT: You are quite right. It does appear to be the same. I must have been recalling something else referred to in the application.

PN484

MR SALMON: Yes. I think the only amendments, Senior Deputy President, are to 2.3 and to the heading of 3. I withdraw that. There does appear to be the service of the order. Instead of "persons and organisations", it is "employees, AMWU and AWU" rather than "persons and organisations."

PN485

THE SENIOR DEPUTY PRESIDENT: Can I take you to 3.2.7? First of all, 3.2.6. The Act makes clear that any order under 127 does not apply to protected action, so why would you need to include 3.2.6?

PN486

MR SALMON: No reason. That can be struck. The Act will speak for itself on that basis.

PN487

THE SENIOR DEPUTY PRESIDENT: Yes, and then 3.2.7. Again I raise this because at the time that I read the application, this one gained my attention. I'm just checking that it still says the same thing.

PN488

MR SALMON: I believe the wording is the same, Senior Deputy President.

PN489

THE SENIOR DEPUTY PRESIDENT: So what you are doing in 3.2.7 is conceding that some industrial action okay, to use very colloquial terms. Essentially in 3.1, you are wanting to stamp out industrial action in very broad terms, but then in 3.2.7, you say: well, on the other hand, some industrial action is okay. Is that because you have picked this up from a previous Full Bench decision?

PN490

MR SALMON: Yes, from the Full Bench decision. I don't think it was Coal v Allied. I think there's been another decision, or perhaps a single decision of Vice President Ross.

PN491

THE SENIOR DEPUTY PRESIDENT: That struck me, in the circumstances of this case, as being a rather strange application that you are making.

PN492

MR SALMON: Yes. There's no need for 3.2.7 in my submission.

PN493

THE SENIOR DEPUTY PRESIDENT: Well, I mean, you can seek whatever order you like, but obviously the Commission in making an order will address itself to what is the appropriate order in the circumstances. Look, I don't want to labour that point. You have answered sufficiently.

PN494

MR SALMON: No, I will strike 3.2.7. Thank you, Senior Deputy President.

PN495

MR NEILSON: Your Honour, could I just raise two points relating to some changes? I actually hadn't noticed the change and I thank your Honour for picking them up. In relation to 2.3, it has been amended to include "members and eligible members." Now, your Honour, we would certainly have concerns with the order applying to people who are not members of the union as of yet, and may not even be employed by ABB as yet. An order should not bind the unknown, and it should not bind the entire world which this order potentially has the power to do. Certainly, North J, in the MUO case certainly resonated with that - that an injunction cannot injunct the world at large, so there are certainly concerns in relation to that.

PN496

In relation to 3.1 where the wording is now "or an other reason", the only submission I wish to make on that is that the order should be confined to the industrial action that is alleged and/or proven or the industrial action that is complained of, for that matter. This order in the terms sought seems to be extremely wide and we certainly have some concerns about that. In relation to the protected action issue, the immunity is conferred by MT, I believe, although the Commission has said they can issue an order still. Certainly, we wouldn't have any objection to that being deleted, if it pleases.

PN497

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, gentlemen. Unless there's anything further, the Commission will adjourn and consider the matter. By adjourn, I mean adjourn for the evening. I don't perceive from what has been said that there's a need to deal with it more urgently than that.

PN498

MR SALMON: No, Senior Deputy President.

PN499

THE SENIOR DEPUTY PRESIDENT: Okay, so I will consider the matter and decide it in due course. Thank you. The Commission is adjourned.

PN500

MR SALMON: Thank you, Senior Deputy President.

ADJOURNED INDEFINITELY [4.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MARIO BEZZINA, SWORN PN162
EXAMINATION-IN-CHIEF BY MR SALMON PN162
CROSS-EXAMINATION BY MR NEILSON PN196
RE-EXAMINATION BY MR SALMON PN272
WITNESS WITHDREW PN276