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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
O/N2464
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER RICHARDS
C2004/2764
APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION
Application under section 127(2) for an
order to stop or prevent industrial action
at Queensland supermarkets in regards to
making of agreements with The Australasian
Meat Industry Employees Union
BRISBANE
1.10 PM, WEDNESDAY, 31 MARCH 2004
PN1
MR S. JAUNCEY: I seek leave to appear on behalf of Woolworths Limited. With me is MR G. CARR the corporate industrial relations manager for Woolworths.
PN2
MR L. NORRIS: Industrial officer of the Australasian Meat Industry Employees' Union. Commissioner, there's no objection to leave being granted as well.
PN3
THE COMMISSIONER: Good. Leave is granted, Mr Jauncey. Thank you, Mr Norris. Mr Jauncey?
PN4
MR JAUNCEY: Yes, thank you, Commissioner. Commissioner, this is an application pursuant to Section 127 of the Act seeking orders under Section 127(2) of the Act. The application was filed yesterday evening by facsimile and I have spoken briefly with Mr Norris just before proceedings commenced. I'd like to start by just dealing with a number of housekeeping issues and then tendering some documents which I don't believe will be controversial. Commissioner, the application was filed by facsimile to the Industrial Registrar yesterday afternoon. I'm not sure whether I need to formally tender that application but to the extent that you think it's necessary or appropriate I do so.
PN5
THE COMMISSIONER: I have a copy of the application and it's duly date stamped, Mr Jauncey. Can I just ask Mr Norris? Mr Norris, are you satisfied that you've been served and have had an opportunity to digest the application and the draft order?
PN6
MR NORRIS: Commissioner, until five minutes prior to the commencement of the hearing we hadn't even actually seen the application itself and the draft order. Notwithstanding that I've had an opportunity to peruse it and the draft order as well. At this stage I don't wish to interrupt the flow of my friend's opening - my learned friend's opening statement. We do have something to say about it at an appropriate time and I've had discussions with my learned friend about that.
PN7
THE COMMISSIONER: Okay. Good. Thank you. Thank you, Mr Jauncey, sorry to interrupt you.
PN8
MR JAUNCEY: Yes. Thank you, Commissioner. Commissioner, the application was put together quite speedily. After sending the application last night I realised that there were a couple of mistakes in the proposed order which had arisen out of the fact that it didn't fully represent further developments which happened yesterday afternoon and on that basis I would like to tender a further proposed order which is now being sought by the company.
PN9
PN10
MR JAUNCEY: Thank you, Commissioner. Commissioner, the changes in the order are quite limited. I should just bring them to the attention of the Commission. Effectively we have changed the name of the proposed order so it just refers to the Queensland Meat Units industrial action order rather than to the Sunshine Coast Meat Units industrial action order. The reason for that - and I will take the Commission to the documents - is that additional stores were effectively added to the list by the AMIEU yesterday afternoon.
PN11
THE COMMISSIONER: Can I stop you for a minute, sorry, Mr Jauncey. I'm just trying to make sure I've got the correct orders here. The order that I have doesn't - it has as its title, "This order shall be known as the Woolworths Limited Queensland Meat Units Industrial Action order 2004." You made a reference to Sunshine Coast.
PN12
MR JAUNCEY: It appears, Commissioner, that you may not have the order which was originally filed yesterday afternoon and I can provide a copy of that if that would assist the Commission.
PN13
THE COMMISSIONER: Okay, no, it appears as though I've got the - no, I have the original one on file. I obtained a copy of the one you've tendered earlier on, so that explains it then. That's all right.
PN14
MR JAUNCEY: Thank you, Commissioner. Commissioner, there is also a small change in paragraphs 3(a) and 3(b) where the reference to a defined term being the Sunshine Coast Meat Employees has now been changed to simply be the Meat Unit Employees which is the definition used in paragraph 2(c). The change was an error which should have been picked up before the order was filed but due to the hurried nature of the order was not. Commissioner, there is probably one further change that we would seek to A1 and that is in paragraph 3(c) the company would seek to amend A1 such that the words "all from 12.01 am on 5 April 2004 until 11.59 pm on 5 April 2004" is inserted at the end of paragraph 3(c). And that reflects the action which is now proposed as of yesterday afternoon.
PN15
THE COMMISSIONER: So the only changes, in effect, are the substitution of two for five?
PN16
MR JAUNCEY: No, Commissioner, it's not the substitution it is the addition.
PN17
THE COMMISSIONER: Okay.
PN18
MR JAUNCEY: This agent is proposed, as I understand it, by the union that some stores action will occur on 2 April while at other stores action will occur on 5 April.
PN19
THE COMMISSIONER: Okay, so you're looking to cover - okay, so - can you just read to me the sentence as it should read then?
PN20
MR JAUNCEY: Yes. The first sentence of 3(c) would stay the same. The second sentence of paragraph 3(c) would read, "In particular the Meat Unit employees must not engage in a stoppage of work from 12.01 am on Friday, 2 April 2004 until 11.59 pm on Friday, 2 April 2004," and here are the new words, "or from 12.01 am on 5 April 2004 until 11.59 pm on 5 April 2004."
PN21
THE COMMISSIONER: Good. Thank you, I've got that now.
PN22
MR JAUNCEY: Thank you, Commissioner. Commissioner, the grounds of the application are in short set out in the application which was filed yesterday evening. In discussions with Mr Norris prior to proceedings beginning he has indicated to me that the union is prepared to concede grounds 11 - sorry, grounds 1 to 11 - but the union is not prepared to concede ground 12 in our application. Now, Commissioner, on the understanding that on grounds 1 to 11 are not contentious I would however just like to tender a range of documents which deal with the non-contentious grounds.
PN23
I don't think that the documents themselves will be contentious. Commissioner, to start with I would just like to tender a copy of the Woolworths Queensland Certified Agreement 2001 which was certified by Senior Deputy President Watson on 19 February 2002. Now, Commissioner, if I could just take you to some of the relevant provisions of the agreement. Clause 1.2 deals with the application and parties bound. The key clause here is probably Clause 1.2.1. It makes it clear that the agreement shall apply in the State of Queensland to all employees within the scope of the agreement apart from those employees engaged in stores which are, effectively, north of the line and a detailed latitudinal and longitudinal description of the line is then included.
PN24
Effectively, what occurs is that the agreement applies in stores in central and southern Queensland. However, in north Queensland a separate state registered agreement with the Australian Workers Union Queensland Branch applies. Clause 1.3 is highly relevant. It makes it clear that the agreement takes effect from the date of approval by the Commission, which was of course 19 February 2002.
PN25
It also makes it clear that the agreement shall remain in force until 27 May 2004. What that means of course is that the agreement has not yet asked its nominal expiry date and remains live. Clause 1.4 also makes it clear that the agreement is to stand alone, and whilst the wording might not be the most felicitous, I think it makes it tolerably clear that the agreement is intended to entirely displace the operation of any other awards or agreements which might apply to the relevant employees, excluding only the Voluntary Workers and Trading Hours Non-Exempt Shops State Award.
PN26
Commissioner, if we then turn to the classifications in the agreement, and to the most relevant classifications of this start on page 8. Effectively, there are six classifications under the award, possibly seven, and there are retail employees grade 1 to 6. And then there are also apprentices. In the grade retail employee grade 2 positions at the bottom of page 10 of the agreement it is made clear that that classification includes meatpackers and cabinet attendants.
PN27
On page 11 it is made clear that the retail employee grade 3 includes the classification of slicer. Yes, and on page 11 it is made clear that retail employee grade 4 includes employees classified as butchers, but who have not completed an apprenticeship. On page 12 the definition of retail employee grade 5 clearly includes supermarket butchers. And on page 12 clause 1.5.21 makes it clear that the agreement also covers apprentice butchers.
PN28
Effectively, Commissioner, what the agreement does is that it operates to cover all employees engaged in Woolworths Supermarkets in Queensland south of the line where those employees are paid wages or do not otherwise receive a salary above and beyond and exempt rate which effectively includes departmental and supermarket managers are taken out of the agreement. All other employees fall within it, including all employees engaged in the meat units in Woolworths supermarkets in southern and central Queensland.
PN29
Now, Commissioner, on 20 February 2004 the AMIEU sought to initiate a bargaining period with Woolworths Limited. That matter previously came before the Commission for conciliation, but I would just tender a copy of the letter and the notice initiating the bargaining period.
PN30
THE COMMISSIONER: I mark that A2.
EXHIBIT #A2 COPY OF LETTER AND NOTICE INITIATING BARGAINING PERIOD
PN31
MR JAUNCEY: Thank you. Commissioner, I should that for the purposes of the present proceedings Woolworths does not contend that this notice was ineffective. For the purpose of these proceedings Woolworths concedes that this notice validly initiated a bargaining period with the company. It is made clear in the attachment to the letter from Mr Richardson the issues in respect of which the bargaining period was notified. The notice makes it clear that the AMIEU wishes to make an agreement under Division 2 of Part XIB of the Act with Woolworths.
PN32
It sets out the part of the business which it is intended that the agreement ought to cover, and the types of employees are also set out. It then lists in some detail the matters which the AMIEU seek to have included in any agreement which they might reach with Woolworths. Those matters are listed and include a substantial range of matters, pretty much all of which are currently dealt with by the Woolworths Queensland Supermarket Certified Agreement 2001.
PN33
Now, Commissioner, the matter came before the Commission on 8 March, it was heard by the Commission as presently constituted, and conciliation proceedings resulted. The effect of those conciliation proceedings was that no agreement was reached; however subsequent to the conciliation proceedings a letter was forwarded by Mr Richardson to the company seeking clarification of certain matters. That letter came on 17 March, I believe. The company responded on 19 March. I only have one copy of each of those letters at present, but if the Commission thinks it is desirable I can get copies of those letters and tender that.
PN34
THE COMMISSIONER: I have copies of the - - -
PN35
MR JAUNCEY: I have just been informed of that, Commissioner. Now, Commissioner, what then occurred was that on Monday, 29 March 2004, which is of course the Monday just passed, Woolworths received a further letter from the AMIEU which I would seek to tender.
PN36
PN37
MR JAUNCEY: Thank you, Commissioner. Commissioner, this refers to the previous bargaining area of notice by number, and it purports to include, on the second page, a notice of the giving of authorisation to engage in industrial action. I think that should probably read a notice of the giving of intention to engage in industrial action, but little turns on that.
PN38
It makes it clear that members of the AMIEU seek to engage in industrial action in the nature of a stoppage of work from 12.01 am on Friday, 2 April, until 11.59 am on Friday, 2 April, at the following Woolnorth stores, and it lists nine Sunshine Coast stores. The actual notice itself, which is on the second page, just effectively states that the nature of the action which is intended to take, and it states that the relevant employees have been authorised to engage in industrial action within the bargaining area against Woolworths.
PN39
Now, Commissioner, Woolworths concedes a couple of points in relation to this notice. Woolworths does not concede that the notice is capable of validly authorising protected action. However, Woolworths does concede that the notice was received by it with three clear working days prior to the commencement of the intended action. Woolworths also concedes that the notice is quite specific in terms of the industrial action, which is threatened to take place. We are left in no doubt as to what it is that they intend to do, and when it is that they intend to do it.
PN40
Importantly, however, I would make two points. The first is that the notice and that action take place or are threatened to take place at a time which is still inside the nominal expiry date of the Woolworths Queensland Supermarket Agreement 2001. The second point that I would make is that the notice does not on its face state any particular reason why the industrial action is threatened.
PN41
Now, Commissioner, yesterday afternoon at about 2 pm on Tuesday, 30 March, Mr Carr wrote to the AMIEU expressing the view that the industrial action was likely to be unprotected action because of the operation of Section 170MN of the Act, and asking for certain undertakings from the AMIEU. Again, I think I only have a single copy of that letter, but I can arrange for copies to be taken and the letter to be tendered, if you think it necessary.
PN42
THE COMMISSIONER: Is the letter referred to in your application?
PN43
MR JAUNCEY: No, Commissioner.
PN44
THE COMMISSIONER: See, I haven't - what I was trying to see was was it agreed.
PN45
MR JAUNCEY: Well - - -
PN46
THE COMMISSIONER: So it is not one of the matters - - -
PN47
MR JAUNCEY: Mr Norris has in fact been good enough to provide me with some of his copies.
PN48
THE COMMISSIONER: Good.
PN49
MR JAUNCEY: So I will tender it, and my thanks to Mr Norris for that.
PN50
PN51
MR JAUNCEY: Now, Commissioner, a response to that letter was received from the AMIEU yesterday afternoon. The response took the form effectively of two letters, and I would seek to tender copies of each of those two letters. Commissioner, the first letter is a single-page letter dated 30 March 2004 from Mr Richardson.
PN52
THE COMMISSIONER: Sorry, you have tendered these, haven't you?
PN53
MR JAUNCEY: Yes.
PN54
PN55
MR JAUNCEY: The first letter is the single-page letter. It effectively responds to the issues raised by Mr Carr's letter which had been sent earlier yesterday afternoon. It expresses the AMIEUs view that the proposed action is protected due to the decision in Emwest Products Pty Ltd v AFMEPKIU. And at the end of the letter it states that the company's request for undertakings is therefore with respect declined.
PN56
The second letter is a two-page letter. It refers to the bargaining period that had been previously notified. It states - it purports to inform the company that members of the AMIEU will engage in what they describe as protected industrial action in the nature of a stoppage of work from 12.01 am on Monday, 5 April 2004, until 11.59 am on Monday, 5 April 2004, at the following Woolnorth stores, and then it lists a further 21 stores. Those stores are not just on the Sunshine Coast, they are further afield within the state. And that is why we made the revisions to the order which we made.
PN57
The second page of that letter again purports to be the notice of the giving of authorisation to engage in industrial action. It is very similar to the 29 March notice. The only real exceptions being that it applies on Monday, 5 April to a different set of 21 stores. Once again as with the 29 March notice, the company concedes that it was received three clear working days prior to the threatened commencement of the action. The company also concedes that the notice is suitably specific in terms of the nature of the action which is threatened. Again however we note that the notice doesn't indicate the purpose of the action.
PN58
And again we note that the notice threatens action which will take place inside the nominal expiry date of the Woolworths Queensland Supermarket 2001 Agreement. Commissioner, it was on the basis of the notices received on 29 and 30 March that Woolworths notified, or applied for I should say, the orders under Section 127 yesterday evening. Now, if I could perhaps just take the Commission to the terms of Section 127. First of all, the section operates in a way in which the Commission must reach certain satisfactions that are in the nature of a jurisdictional requirement before it and exercise any power under Section 127.
PN59
It is probably a jurisdictional question - sorry, I withdraw that - because the jurisdiction is dependent on it appearing to the Commission that certain prerequisites are met, it is probably technically a somewhat discretionary decision in the same way that the operation of Section 170MW is technically discretionary. And that was discussed by a Full Bench of this Commission in cases involving Coal and Allied Operations v CFMEU which ultimately went to the Full Federal Court and to the High Court. I don't think a lot turns on that point and I will refer to the first ..... effectively the jurisdictional step.
PN60
Now, in order to seize the Commission of jurisdiction, it must appear to the Commission that a certain state of affairs exists. But, firstly, the Commission must be satisfied that it is that industrial action in the meaning of the Act is happening or is threatened, impending or probable. In this case, Commissioner, we say that the notices provided to Woolworths on 29 and 30 March make it clear that industrial action is threatened. It is also likely that the Commission could form the view that industrial action was impending or probable as well, but given that there is no doubt that the action is threatened, that alone is sufficient to meet that test.
PN61
The action which is threatened by the AMIEU is a stoppage of work for two 24 hour periods. And in my submission, a stoppage of work is quite clearly industrial action within the definition of that term in Section 4 of the Act. It is certainly a ban, limitation or restriction in the performance of work. And we would say that probably 4A, B and D are all met given that the work which is herein questioned is work which is regulated by the terms of the certified agreement made under the Act, and that the one day stoppage on each of the two relevant days is undoubtedly either a restriction or limitation or delay on the performance of work within 4A.
PN62
A ban, limitation or restriction on performance of work or on the acceptance or offering for work in accordance with 4B; or a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work in respect of 4D. Now, your Honour, the second jurisdictional requirement under Section 127 is that the industrial action which is threatened must be in relation to an industrial dispute or the negotiation of proposed negotiation of an agreement under Division 2 of VIB; or in relation to work that is regulated by an award certified agreement.
PN63
In this case, we say that the requirements of 127(1)(c) are clearly satisfied in the sense that the relevant work is work that is regulated by an award for a certified agreement being of course the Woolworths Queensland Supermarket Agreement 2001. It is also likely that the requirements of Section 127(1)(b) are satisfied given that the AMIEU is proposing to negotiate an agreement under Division 2 of VIB and that is made clear by the bargaining area notification which they sent to us on 20 February, and the fact that this action relates to that bargaining area notification is made very clear in the notices given on 29 and 30 March.
PN64
The other jurisdictional requirement is of course that the Commission have a proper application of the orders before it. That is dealt with in 127(2). In this case we say that the relevant provision is 127(2)(b) in the sense that Woolworths as the applicant is a person who is directly affected or who is likely to be directly affected by the industrial action. Commissioner, what we say in the circumstances is that the Commission is clearly seized with the power to make an order under Section 127 of the Act.
PN65
Now, the fact that the Commission has the jurisdiction to make the order does not, of course, mean that an order automatically flows. The making of an order requires the exercise of discretion by the Commission and many of the principles dealing with the exercise of that discretion were set out in a decision of a Full Bench of this Commission in the matter of Coal and Allied Operations Pty Limited v AFMEPKIU and Others which was a decision made on 20 June 1997 and I would tender a copy.
PN66
THE COMMISSIONER: A6.
EXHIBIT #A6 DECISION IN COAL AND ALLIED OPERATIONS PTY LTD AND AFMEPKIU AND OTHERS
PN67
MR JAUNCEY: Commissioner, I won't take you through the decision in any detail at this stage. I would just note however that the Full Bench here sets out some principles about the exercise of the discretion at the bottom of page 327 of the decision and it's the final paragraph there that is relevant on top of the second last paragraph as well. Commissioner, I should just note that there are a number of other things that flow from this decision and I will take the Commission to the relevant parts of the decision later if need be.
PN68
But first of all the Full Bench in this matter made a distinction between the three different types of industrial action and they made their distinction between action which was protected action, action which was unlawful action and action which, I suppose, fell in between those two extremes. And what the Commission indicated was that in order for the discretion to be exercised the Commission must be satisfied that the action in question was illegitimate to a degree warranting the making of an order.
PN69
Now, Commissioner, we would say in this case that the action here in question is actually prohibited by Section 170MN of the Act and the relevant prohibition is in Section 170MN(1), 170MN(3) also makes it clear that action taken in the contravention of 170MN(1) is not protected action and then Division 10 of Part VIB of the Act is also relevant under Section 170ND of the Act. Section 170MN is listed as a penalty provision and in Section 170NF the Act allows for an eligible Court as they find in 170NE to make an order proposing a penalty on a person who has contravened a penalty provision.
PN70
As a result I think it is quite clear that action taken in breach of 170MN is actually unlawful action falling at the most serious end of the spectrum of the three different types of industrial action identified by the Full Bench in the Coal and Allied decision. I would also note in that regard Section 170NC of the Act which provides that a person must not take or threaten to take any industrial action or other action with intent to coerce another person to agree or not agree to the making, varying or terminating or extending the nominal expiry date of an agreement under Division 2 or 3.
PN71
In this case the action which has been taken by the AM - I'm sorry, I withdraw that. In this case the action which is threatened to be taken by the AMIEU members is clearly action being taken, in our submission, with an intent to coerce Woolworths to agree to the making of an agreement with the AMIEU under Division 2 of the Act and we say that the action would also be prohibited under Section 170NC of the Act. Now - - -
PN72
THE COMMISSIONER: Mr Jauncey, can you just take me to why you are of the belief there's been a contravention or potentially a contravention of Section 170NC?
PN73
MR JAUNCEY: Yes, absolutely, Commissioner. And I think that that is the key question which falls for dispute in this matter and it's the key issue in contest between the parties. Your Honour - I'm sorry, Commissioner - 170MN relevantly provides that from the time when a certified agreement comes into operation until its nominal expiry date has passed an employee, organisation or officer covered by sub-section (2) must not for the purpose of supporting or advancing claims against the employer in respect of the employment of the employees whose employment is subject to the agreement or award engage in industrial action.
PN74
Now, if we take that Section apart I will go through it bit by bit. First of all it operates from the time when a certified agreement comes into operation until its nominal expiry date has passed and what we have here, of course, is the Woolworths Queensland Certified Agreement 2001. It is a certified agreement made under the provisions of the Act. It came into operation on 19 February 2002 and its nominal expiry date, as expressed in Clause 1.3 of the agreement, is 27 May 2004, so it has not yet - the nominal expiry date has not yet passed.
PN75
Now, within that period this action provides that an employee, organisation or officer - I'm sorry, I will withdraw that. Within the relevant period the Section imposes certain prohibitions on an employee, organisation or officer covered by subsection (2). In this case we say that (2)(a) is the most relevant. (2)(a) refers to any employee whose agreement is subject to the agreement or award. Now, in this case, Commissioner, the industrial action which is threatened to be taken is industrial action which will be taken by employees engaged as butchers, slicers, apprentice butchers, supermarket butchers, meat packers and cabinet attendants whose employment is subject to the Woolworths Queensland Supermarket Certified Agreement 2001.
PN76
Now, Commissioner, we concede that the AMIEU does not fall within paragraphs (2)(b) or (2)(c) in the sense that the AMIEU is not a party to the relevant certified agreement, but that doesn't matter. The fact is that the relevant employees have their employment subject to it and it's the - - -
PN77
THE COMMISSIONER: But it goes to the issue of the order though, doesn't it?
PN78
MR JAUNCEY: Well, yes, Commissioner, and I will deal with that.
PN79
THE COMMISSIONER: Okay, well, in due course then.
PN80
MR JAUNCEY: I'm happy to deal with it now. First of all we say that (2)(b) or (2)(c) don't apply. (2)(a) is the relevant one, however, if the action by the employees is unprotected then we say that an order can properly be directed against other persons who might be organising, encouraging or inciting the unprotected action even although those other persons might not fall within (2)(b) or (2)(c) and in this regard I'd refer the Commission - yes, your Honour, Section 4(8), in this Act a reference to engaging in conduct includes a reference to being whether directly or indirectly a party to or concerned in the conduct.
PN81
And what we say is that once the employees engage in action of an unprotected nature other persons who might be a party to or concerned in that conduct are effectively dragged into the conduct themselves. Now, it may well be that the conduct of those other persons is not prohibited by Section 170MN but that doesn't make the conduct of the other persons protected if the actual industrial action being taken by the employees is not itself protected. Now, Commissioner, I will return to the terms of 170MN.
PN82
And it provides that during the relevant period the relevant bodies or persons must not engage in industrial action for the purpose of supporting or advancing claims against the employer and we say, well, clearly this action is being taken for the purpose of supporting or advancing claims against Woolworths, but those claims, we accept, must be in respect of the employment of employees whose employment is subject to the agreement.
PN83
Now, that's probably the key part of the section in this case and it is that part of the section which was considered in the Emwest decision and I'd seek at this point to tender copies of that decision.
PN84
PN85
MR JAUNCEY: Commissioner, I should just say that my copy is an internet copy. I'm aware that Mr Norris, I think, has photocopied decisions here. I'd be happy to take them if he wishes, I don't mind, but we should probably just be careful as to which copy we have if we're talking about page references.
PN86
THE COMMISSIONER: Sorry, I'm just corrected that the decision that was handed up with the respect of Coal and Allied was marked exhibit A7 - A6. This wasn't the Emwest decision is A7.
PN87
MR NORRIS: Can we all work off the industrial reports copy?
PN88
MR JAUNCEY: Oh, look I'm happy to do that.
PN89
MR NORRIS: Yes, well, that's for the Commissioner. There's two copies there.
PN90
MR JAUNCEY: I'm sorry, Commissioner. In the rush up here, I'm just trying to find what I did with a marked copy of that decision. Commissioner, the Full Bench decision was an appeal against a decision of Kenny J. The situation was one where the parties had reached agreement on a range of matters, and had had those matters included in a certified agreement.
PN91
The parties have not reached agreement on the issue of redundancy pay. Further negotiations and disputation occurred in relation to the issue of redundancy pay, and that ultimately led to the union in that case initiating a further bargaining period, filing further notices pursuant to this action 170MO and taking further action in support of their claims for redundancy pay, and the employer took action contending that the industrial action engaged in by the union and its members was not protected because of 170MN.
PN92
Now, the decision of Kenny J, is summarised at paragraphs 23 and onwards of the Full Bench decision, where they note that her Honour identified the issue before her as one about the proper construction of section 170MN. She held that the prohibition against industrial action which it imposes is a limited one, does not send to industrial action for a nonprescribed purpose, even where there is a relevant certified agreement.
PN93
This aspect of its operation, her Honour held, reflects a statutory assumption that when parties make an agreement with respect to employment, they do so on the basis that they will not resort to industrial action during its currency in respect of the matters on which they have reached agreement, and then they note in paragraph 24 the relevant words in section 170MN that we're currently dealing with, and the Full Bench notes that Kenny J, found those words capable of more than one meaning and they say that on the meaning adopted by Kenny J, the prohibition would then extend only to industrial action for the purpose of advancing claims in respect of agreed matters. I think that's an important sentence to note.
PN94
Also, in paragraph 26, the Full Bench at the end of that paragraph noted that Kenny J found the Emwest Construction, that's of course the broad prohibition, has been perhaps a most obvious and relatively straightforward construction, but that she found that it was not the preferable construction. And I would refer particularly to the paragraph 28 in which the Full Bench extract a quote from the decision of Kenny J and starting at - in that quote her Honour makes certain assumptions about the policy behind section 170MN, and in the second sentence she states that the policy is sufficiently protected if section 170MN(1) is construed as prohibiting parties to a certified agreement from resorting to industrial action to undo the matters they have agreed upon in the certified agreement, if it's nominal expiry date has not passed, and this is an important sentence, Commissioner.
PN95
She continues that:
PN96
If the parties so desired, they could agree that a certified agreement made by them was intended to cover the whole field of relevant employment thereby excluding the possibility of industrial action during the currency of the agreement.
PN97
Now, Commissioner, we say of course that that is exactly what the clause 1.3 of the Woolworths Queensland Supermarkets Agreement 2001 does, it states that it is intended to cover the whole field of relevant employment apart from one small carve-out.
PN98
Now, Commissioner, the Full Bench, of course, then heard further argument about the matter and makes some comments itself about the construction of - sorry - - -
PN99
THE COMMISSIONER: Mr Jauncey, can you just take me back to the work the Agreement does to cover the field?
PN100
MR JAUNCEY: Yes, Commissioner. It's clause 1.3. I'm sorry, Commissioner, clause 1.4. Commissioner, I accept that the language is probably not the most felicitous but as I pointed out earlier, I think it makes it quite clear that the intention is that the agreement be a stand-alone. It's a one-stop document with its terms and conditions being exhaustive of all entitlements for those that it covers, with the exception of terms and conditions set by the Voluntary Work, Extended Trading Hours Non-exempt Shops Award.
PN101
Now, Commissioner, the Full Bench, in paragraphs 29 to 36 of its decision debates the various constructions of section 170MN contended for by the parties in that case, and it's made clear in those paragraphs that the key words that they are considering there are the words which we are considering here, being the fact that the claims must be in respect of the employment of employees whose employment is subject to the agreement, and in paragraph 37 of the majority decision, the Full Bench of the majority of the Full Bench notes that both views of the purpose of section 170MN have force.
PN102
Each side of the argument can point to anomalous outcomes which would arise from the others' approach. In the end however...(reads)... the Court would construe the agreement as intended to cover the field of terms and conditions defining the employment relationship in question.
PN103
Indeed, the parties may, as Kenny J pointed out, make that intention explicit by the inclusion of a provision that the agreement is intended to be exhaustive of the terms and conditions of the relevant employment relationship.
PN104
Now, Commissioner, the AMIEU in their letter of 30 March 2004, and that is the first letter marked A5, have sought to invoke Emwest as some sort of protection for their actions, and they do it by saying the protected industrial action has been undertaken to force Woolworths Limited the company to negotiate with the AMIEU and then they say in the fourth paragraph of their letter that the company's refusal to negotiate with the AMIEU is clearly not a matter dealt with in any way, shape or form in the Woolworths Queensland Supermarket Certified Agreement 2001. Accordingly, due to the decision in Emwest, protected action to April 2004 is outside the terms of section 170MN of the Workplace Relations Act. And, your Honour, we say that there are a number of serious and substantial problems with the formulation being put forward by the union.
PN105
The first is the fact that there is no clear evidence to establish that the purpose and the sole purpose of the action is in relation to Woolworths refusal to negotiate. The notices themselves don't say it. They just say that employees have been authorised to engage in industrial action within the bargaining period and say that it's all in the matter of a bargaining period between the union and Woolworths.
PN106
So in that sense, your Honour, we say that there's no evidence on which to accept the union's contention that the action is solely and wholly about the company's refusal to negotiate. However, Commissioner, there are some even more powerful reasons against the union's construction.
PN107
Even if it is accepted that the sole reason for the threatened industrial action is Woolworths' refusal to negotiate with the AMIEU, we say that that is not something which takes them outside of the scope of 170MN. We say that their reliance on Emwest is misconceived and that's for a number of reasons.
PN108
Firstly, your Honour - I'm sorry, Commissioner, the decision in Emwest was focussed on a very specific set of circumstances. Those set of circumstances were those in which parties had specifically agreed to make a limited certified agreement and to leave certain substantive matters out of that certified agreement. Now, that's not the case here. The agreement is unquestionably comprehensive save only for an extremely limited carve-out and we say that it is pushing and stretching Emwest way beyond what it actually decided to say that it covers a matter such as this.
PN109
Now, I'd also note something further, Commissioner. What the union is really saying is that it's the company's refusal to negotiate with them is not a matter dealt with in the agreement. But, Commissioner, negotiations don't take place within a vacuum. They're not separate or theoretical. You don't just negotiate about negotiating. You negotiate about substantial and real matters. And what the union's real complaint here is that we won't negotiate with them in respect of wages, and that we won't make an agreement with them which deals with the issue of wages in a way which they find appropriate. And it's not just wages, it's absolutely every one of the items listed on their notification of the bargaining period.
PN110
Their real complaint is that we won't make an agreement with them dealing with issues to their satisfaction, which include workplace consultation, wages and quantum of work, types of employment, length of service and retrenching, promotion and recruitment, ordinary hours of work and loading, allowances and loading, overtime, superannuation, payment of wages, rosters, rostered days off, meal breaks and rest pauses, annual leave, sick leave, bereavement leave, parental leave, long service leave, leave to attend union business, public holidays, jury service, termination change and redundancy and it goes on, all of which, or 99 percent of which are matters which are covered by the agreement which is currently in place and which is currently operative, which hasn't yet passed its nominal expiry date.
PN111
Commissioner, if one were to accept the AMIEU's argument it would lead to absurd and anomalous results. One could have a circumstance in which an employer made an agreement with a union on a comprehensive basis to last for a period of three years. And after one year, the union could come back and say, "Well, you know we've actually changed our mind. The wage rates should be higher."
PN112
And the union could say, "Here's a bargaining period notice, because we wish to bargain with you further about wage rates." And when the company said, "Well, we've got two years left to run on our agreement, we are not interested in bargaining with you about wage rates over the currency of that agreement," the union would then turn around and say, "Oh, they're refusing to bargain with us and therefore we're taking industrial action against them because of their refusal to bargain about a matter covered in the certified agreement," even although the union couldn't take industrial action if it was actually saying, "Oh, well, we wanted higher wage rages."
PN113
It's an absurd and artificial result, and it's a result which would allow the parties to a certified agreement to effectively undo the deal which they have made which of course is the phrase that is used in Emwest, that the section is there to make sure that parties don't undo their deals and this is a device which, if it's accepted, allows people to do exactly that.
PN114
Now, Commissioner, I would just make a couple of further observations. First of all Commissioner, I note that in the Coal and Allied decision it was effectively accepted by the Full Bench there that the Commission, in hearing a Section 127 application, is not able to make a final or binding declaratory ruling on whether action is protected or whether it is not protected. Of course, exercising its functions under Section 127, the Commission may need to form a view about whether action is protected action or unprotected action or illegitimate action, and I have a case here in which his Honour Senior Deputy President Polites made some observations about the Commission's task in this regard and the way it should be approached. The case is Re Esso Australia Pty Limited and I would seek to tender a copy.
PN115
PN116
MR JAUNCEY: Thank you, Commissioner. Commissioner, this matter can be put fairly simply. It was, in fact, a case where the certified agreement had expired and negotiations were in place for a new one. The union purported to serve a bargaining period notice under Section 170MI. It then subsequently purported to serve notices under section 170MO of the intention to take industrial action. The dispute which arose was whether or not the Section 170MO notices contained sufficient specifics of the action to be undertaken in order to meet the requirements of the Act. That's not a matter which is in dispute here, but in both this case and the Esso case, the same point was reached, which was that the Commission was put in a position where it was required to consider the issue of whether certain action was protected or not protected.
PN117
In paragraph 16 of the decision, his Honour Senior Deputy President Polites notes that he's not in a position, as a matter of law, to make a binding determination on the issue, although he does express the opinion that in his view the action is protected. But then from paragraph 17 on is very relevant, and his Honour Senior Deputy President Polites says that:
PN118
My difficulty is that I am not in a position to finally determine this point and if - contrary to my view - the industrial action is unprotected, then in my view - in circumstances such as this - the applicant is entitled to the orders sought.
PN119
As Merkel J noted in ACI Operations Proprietary Limited vs AFMEPKIU, in relation to the span of the Act, the first is that protected action can be engaged in by a protected person during the bargaining period, free of the fetter of the threats of the commencement of litigation by unions, employees and employers in respect of the action.
PN120
As North J stated in Australian Paper and CEPU:
PN121
The purpose of the statutory scheme is to allow negotiating parties, both employer and employee ...(reads)...freedom of the parties to negotiate may be fettered by protected action but not by any other coercive action.
PN122
His Honour, Senior Deputy President Polites, then says:
PN123
In my view, if the industrial action is unprotected in circumstances such as the present the applicant ..(reads)... because I have no doubt that the union sought genuinely to utilise the provisions of the Act.
PN124
Now, Commissioner, in this case we say that we have a substantially better than merely arguable case that the action is unprotected and that it is in fact illegitimate under sections 170NC and division N of Part VIB. However, even if the Commission is of the view that our case in that regard is not as strong as we might think it is, then we say that based on the principles enunciated by his Honour, Senior Deputy President Polites, in the Esso case, an order should nevertheless issue as a matter of discretion.
PN125
In that regard, Commissioner, I would note that the orders sought by the Company in paragraph 4A, specifically exclude action which is protected action for the purposes of the Act. Now, Commissioner, there is perhaps one final submission that I should make in this opening. In accordance with Coal and Allied, one of the principal factors to be taken account by the Commission in exercising its discretion is whether the threatened action is sufficiently illegitimate to a degree that it warrants the making of an order under section 127.
PN126
Now, Commissioner, we say that the action being contrary to the prohibitions in the Act is illegitimate and unlawful by its very nature. It doesn't simply fall into a class of action which is unprotected but which is not unlawful. Now, we say that that is one of the most powerful factors of all in the exercise of the discretion, but we accept that other factors can also come into play such as the effect of the action and the likely disruption and problems which it may cause.
PN127
In that regard, Commissioner, I have nothing further to say in opening. However, I do have a witness who is able to give evidence of the effect which the likely act of which the threatened action is likely to have. I'm not, however, in a position to lead the witness immediately, having just got up from Sydney at 12.55 and I'd seek half an hour or 20 minutes before any evidence was led.
PN128
THE COMMISSIONER: Mr Jauncey, okay, before I address you on that matter, can I just take you back to your argument again, which I took you to a while ago now, in relation to why the order should apply to the union in question, and I'm just wondering whether you can revisit that argument again for me.
PN129
MR JAUNCEY: Commissioner, I shall indeed do that. Commissioner, we accept that the prohibition in section 170MN extends only to the relevant employees and does not directly extend to the union. That's because they do not come within paragraphs 2B or 2C.
PN130
Now, Commissioner, the fact that 170MN doesn't prohibit or render unlawful what is being done by the union, does not mean for one minute that what is being done by the union is protected action. It only means that it's not prohibited or unlawful. In that regard, Commissioner, what we would say is that the union's actions may well contravene section 170NC and may be unlawful on that basis.
PN131
However, even if the view is taken that the union's actions fall within the middle ground of the types of industrial action identified in Coal and Allied, that is unprotected but not unlawful action, we say that it is still appropriate as an exercise of discretion to issue the order making that action unlawful as a consequence of the order being issued, and we say that that is because the union's actions, even if not unlawful in and of themselves, are nevertheless illegitimate in the sense in which that phrase is used in Coal and Allied.
PN132
And in this regard, the reason why they are illegitimate is because they are intricately bound up with unlawful conduct, and that the union's actions, even if not unlawful in themselves, the actions are that they are inciting, organising and encouraging action by their members which is unlawful and in that sense, I had suggested that section 4 subsection 8 was relevant in the sense that it effectively says that the - that the reference to engaging in conduct included a reference to being, whether directly or indirectly, a party ..... concerned in the conduct.
PN133
And my submission is that that evinces a legislative intention to link, organising or being engaged, directly or indirectly, to conduct with the conduct itself. I think the argument could survive even if subsection 4(8) was not there, because the point that we make is that the union's conduct my be unlawful under NC, but even if it is not unlawful it is illegitimate because it is advising, encouraging and inciting conduct which is unlawful and therefore the advising, inciting and encouraging should itself be stopped, in our submission.
PN134
THE COMMISSIONER: Thanks, Mr Jauncey. You say I do need to take evidence in impacts and effect, and as a consequence I will need to hear from your witness and have the witness cross-examined as well, to the extent necessary. Now, did you say you required a half an hour?
PN135
MR JAUNCEY: Yes, I think that the witness is in the precincts but not here. I should also say that Mr Carr and I have been rushing since about 9.30 this morning, and neither of us have managed to have a sandwich, and perhaps if we could have half an hour, that would be appreciated.
PN136
THE COMMISSIONER: You may well get more than half an hour. I have another matter at 3.30, which I need an hour for, at a minimum, and we're going to have to - now, well we have an option. We can - - -
PN137
MR NORRIS: Commissioner, what is the actual evidence that's going to be led, if I might inquire?
PN138
THE COMMISSIONER: You must hear Mr Jauncey on that.
PN139
MR NORRIS: We've had no - no - obviously, and given the nature of these proceedings, obviously have no notice of a witness statement, but some indication as to proposed evidence would be useful, particularly to the question of relevance.
PN140
THE COMMISSIONER: Well, we know it's about impact and effect of the action. Go ahead, Mr Jauncey.
PN141
MR JAUNCEY: Yes, Commissioner. Given the very short time period, it was obviously not possible for us to prepare a witness statement, nor is that usual in these matters. The intended witness is Mr Shane Holland. He is an employee of the company with experience in its meat operations. The evidence is intended to go to the likely effect and damage which might be suffered by the company as a result of the occurrence of the threatened industrial action. The evidence will deal with a number of issues, such as the effect of absences of employees from the meat room itself. It will also deal with evidence about the effect that that has on overall supermarket trading operations, in the sense that very often, if the supply or the availability of meat is restricted, people may choose to go and do their general shopping elsewhere.
PN142
And the evidence will also relate to the particular effect which this is likely to have in the lead-up to Easter, given that my instructions are that letters have been going to employees in other stores effectively indicating that further action will take place in other stores, certainly on Tuesday next week, and perhaps in other stores after that, although we've never formally been notified. So that's the nature of the intended evidence.
PN143
MR NORRIS: Commissioner, can I make a concession on the record? If this Commission is of the view that the proposed industrial action is unprotected, this union has no intention whatsoever in carrying through with any of it - the proposed action, that is; even the proposed course of action relating to next week. Now, whether or not that affects my learned friend's decision on whether or not to call this particular witness, I do not know, but one would think that it should.
PN144
MR JAUNCEY: Well, Commissioner, it actually gives rise to another thought in my mind. If we proceed down this path, then the result will be that an order is issued or is not issued, and that may involve considerations of issues other than just the protected or unprotected nature of the action, although obviously that is one of the issues.
PN145
It may be that given Mr Norris's concession, we might be able to look at some sort of agreed process in which Mr Norris is able to say what he has to say on the relevant points of law, and then we somehow - I suppose it would have to be the exercise of a conciliation function, even if it is an agreed function under 111(aa) of the Act or something like that, that the Commission can express a view on the individual point, and that might solve the issue for all of us. I just don't know.
PN146
THE COMMISSIONER: There's a few options there. I don't know whether you brought closure to that or - - -
PN147
MR JAUNCEY: I don't think I did, Commissioner. I suppose it's putting another possible option on the table.
PN148
THE COMMISSIONER: How about we - what about we adjourn for some seven minutes or so, and you confer with Mr Norris on this particular matter, then we'll commence again and see whether we've got any traction on a course for managing this particular matter on the basis which you've just proposed, but it may not be the case. It may be a simpler case that we proceed, but nonetheless, we'll adjourn for seven minutes to give you an opportunity to have some discussion. Thank you.
SHORT ADJOURNMENT [3.02pm]
RESUMED [3.18pm]
PN149
MR JAUNCEY: Commissioner, we have had some discussions which may or may not provide a way through some issues. Whichever way we go, we thought it most appropriate to recommence at 4, because if there is a way of finding - sorry, if we can find a way through some of these issues I've agreed that it would be unfair to ask Mr Norris to be interrupted in the middle of his submissions. So perhaps if we can come back at 4 and we can let you know whether there's been some agreed progress on some matters of how to deal with evidence, and other matters.
PN150
THE COMMISSIONER: Yes. Look, I take it from what you've told me today, Mr Norris, that the issue for you is - and I think this is why - I think this has informed your comment about the need for evidence. You are really looking for a finding in respect of a particular issue you've advanced.
PN151
MR NORRIS: Whether the action is protected or unprotected. Yes, Commissioner.
PN152
THE COMMISSIONER: That's right. Everything else falls away because, in essence, as we all know, as a practical industrial reality, all that turns on this for you is the period from - well, from 5 April to 27 May.
PN153
MR NORRIS: Quite correct, Commissioner, yes.
PN154
THE COMMISSIONER: Where the situation changes, and if in the event you were illegitimate or in unprotected modes currently, then you would move to a more - a legal and legitimate mode. So that's essentially - - -
PN155
MR NORRIS: As I indicated on the transcript, Commissioner, if this action is unprotected, there is no intention whatsoever to carry forward with it, even if there were no 127 orders prohibiting it.
PN156
THE COMMISSIONER: Yes. The issue of the evidence goes to discretion and the purpose of making the order itself.
PN157
MR JAUNCEY: Yes.
PN158
MR NORRIS: Without interrupting my learned - what I invited my learned friend to do, Commissioner, is to formulate a series of propositions which are said to arise from this evidence.
PN159
THE COMMISSIONER: And you - - -
PN160
MR NORRIS: With a view to seeing whether or not they can be simply conceded from the bar table.
PN161
THE COMMISSIONER: Okay. Good, okay then. Now, I have another matter at 3.30. As I said, it could take me up to an hour.
PN162
MR JAUNCEY: We will attempt to use that time profitably to formulate some propositions to put to Mr Norris.
PN163
THE COMMISSIONER: Yes, and I'm in a position to break from that at 4 o'clock and perhaps we could - I could come back in at 4 o'clock just in conference to see whether there's been some progress in that particular matter, so we can - or do you want the full hour?
PN164
MR JAUNCEY: Yes - certainly, Commissioner, we'll try and go as speedily as possible in formulating some propositions, but I seem to be stuttering over my words mainly because I probably haven't had the sugar required from my lunch. So we will - Mr Carr and I will need 10 minutes for a sandwich as well.
PN165
THE COMMISSIONER: That's all right. Mr Norris, how long - I don't want to put you - to confine you at all in any way, but how long do you think you will require?
PN166
MR NORRIS: Approximately half an hour, Commissioner.
PN167
THE COMMISSIONER: Oh, okay then. Well, is it - can we adjourn for an hour and I'll come back in about 4 o'clock and see how we're going just briefly?
PN168
MR NORRIS: Yes.
PN169
THE COMMISSIONER: Good, thanks everyone. We're adjourned.
SHORT ADJOURNMENT [3.22pm]
RESUMED [4.38pm]
PN170
THE COMMISSIONER: Thanks everyone. Sorry to keep you waiting. I didn't make it back at 4 pm, and you can blame the other parties.
PN171
MR JAUNCEY: Not at all, Commissioner. Your time is appreciated. Commissioner, we have agreed on a somewhat unorthodox approach to get through the evidence. I have been through the intended evidence from Mr Holland with Mr Norris, and he has agreed for me to put that on in the nature of a witness statement to which the union will not seek to challenge the evidence, although the union of course reserves the right to make submissions if necessary about the weight or otherwise to be given to it.
PN172
I suppose we can do that one of two ways and I'm in the Commissioner's hands. One way is for me to simply read it as if it were a witness statement. The other way would be to put Mr Holland in the box. I could then read it and if he agreed he could say yes, but he would then be free to answer any questions that the Commission might have.
PN173
THE COMMISSIONER: Well, so you're not exposing him to cross-examination?
PN174
MR JAUNCEY: Mr Norris has effectively agreed that he wouldn't wish to cross-examine or to challenge the intended evidence which I have informed him of.
PN175
MR NORRIS: That's so, Commissioner. Commissioner, might I just simply add, it's accepted practice, particularly in matters of this nature, to accept evidence from the bar table as it were. In my submission, it would be most appropriate for my friend to read out the intended evidence and for me to advise at the end of it that we don't seek to challenge it in any way.
PN176
THE COMMISSIONER: There's not a great deal of time lost in - you have the witness here, don't you?
PN177
MR JAUNCEY: Yes, he's here, Commissioner.
PN178
THE COMMISSIONER: Well, there's not a great deal of time lost in quickly swearing in and moving through. What I'll have you do is swear the witness in. Mr Jauncey, if you could read your statement and have the witness - as it seems to be arranged, concur with the statement, if you like, and if Mr Norris could simply state that he has no wish to cross-examine. Mr Norris, you reserve your right, however, at a later stage to indicate the weighting that I'm to put on that.
PN179
MR NORRIS: The relative weight. If, indeed, with all due respect, the evidence is relevant - - -
PN180
THE COMMISSIONER: Yes.
PN181
MR NORRIS: - - - to the Commission's ultimate determinations.
PN182
THE COMMISSIONER: That's right. Well, look, this won't take long. I take your point about - from the bar table - it's a preference I get something sworn at least.
PN183
MR JAUNCEY: Yes, Commissioner, I accept that.
PN184
PN185
MR JAUNCEY: Thank you, Mr Holland. Can you state your full name and address, for the record, please?---Shane Bernard Holland, (address supplied)
PN186
Mr Holland, I'm going to read you a statement based on the information you provided to me earlier on today. If at any point during the statement you think that something is incorrect, would you please let me know. I will also give you the opportunity at the end to correct anything that you think might be in error. Mr Holland, I understand that you are a meat trading specialist with Woolworths Limited and that you have had 15 years experience working in meat. My understanding is that your view is that most supermarkets in Queensland have an average of five to six people working in the meat room, plus an apprentice. I understand that you believe that the structure of the meat room in the average Queensland supermarket would often be that there would be one department manager, one second in charge, one cabinet attendant, who is responsible for pricing the meat and putting the product out on the shelves, one meat packer, who packs the meat, two butchers and usually, not always, one apprentice. I understand that your belief is that the company places a very substantial emphasis on having fresh meat on the shelves, that the company brands itself as Woolworths the fresh food people and is very protective of its reputation for fresh food. I understand, from what you told me, that the main products or units in a Queensland supermarket in respect of mince - sorry, in respect of meat, would be mince, various steak lines, sausages and especially over the next few weeks, barbecue packs, given that we're heading to the Easter tourist season, especially on the Sunshine Coast and the Gold Coast. I understand from what you told me, that the product is generally topped up or refreshed a minimum of three times per day, and sometimes four to five times per day. That process involves the cabinet attendant from the meat room bringing out 15 to 20 packets of the relevant product, and if that were to occur three times a day, it would be 45 to 60 packets of that particular line would be turning over per day, sometimes more. I understand from what you told me that the butchering, packing and pricing of certain meat products needs to be done every day. In particular, I understand from what you told me that mince has a 24 hour shelf life. I also understand that the rules applied by Woolworths is that if any mince is made prior to 4 p.m. on a particular day, it must be cleared by the end of that day's trading and will not be held over to the next day. I also understand that if any mince is made after 4 p.m. on a particular day, it must be cleared by 10 a.m. the next day and will not be held on the
**** SHANE BERNARD HOLLAND XN MR JAUNCEY
shelves after that time. From what you've told me, I understand that normal operating procedures are that steak lines should not be cut the day before. I understand that steak has a three day life and that it is theoretically possible that steak could be cut the day before and left out for the next day. I understand, however, that your view is that this is considered to be very undesirable and is rarely done under normal operating procedures except to cover the morning trade. In that regard, I understand that a small amount of steak is usually cut the evening beforehand in order to be put out for sale the next day; but other than that, steak is not cut and is topped up or put out on the shelf. I apologise. I understand - I will withdraw that, I'm sorry - I have explained to you that industrial action may be occurring in certain Queensland meat units although it is not possible to know exactly how many employees in any particular meat unit may choose to engage in industrial action. I understand from what you've told me that if a meat room is seriously affected by industrial action, such as if the trade butchers are out, various effects would follow. One effect is that mince would not be kept on the shelf past 10 a.m. on the day on which the action occurred. This would mean that there was no mince on the shelf after 10 a.m. I understand that steak could be cut the day before, but that you believe that doing so would seriously impact on Woolworths' perception in the market as a fresh food provider. You believe that that perception is very important to the company. I also understand that you believed cutting the steak the day prior to industrial action would impact on mark downs. That is because steak has a three day shelf life. If it is cut on one - the day before the industrial action then put out for sale on the day of the industrial action, it would need to be marked down the day after that thus having an effect on Woolworths' profits. I understand that - sorry - I have also told you that it might be possible that only a limited number of people might be engaging in industrial action in any particular meat room. I understand that you believe that that would result in the situation where there was substantial pressure on the remaining employees being short staffed. I understand that you have seen accidents occur in meat room involving band saws and other equipment and that you believe that those accidents occurred partly as a result of people seeking to operate too quickly under pressure. I understand that you also believe that having some employees out on industrial action while other employees remained at work could have a serious adverse effect on the morale in that unit. In this regard, I understand that you believe that workers in the meat room work closely together and that this could serve to divide their camaraderie. I also understand that if some trade butchers were out but the apprentices came in to work, Woolworths would only be able to allocate very limited and menial work for the apprentices because they would be
**** SHANE BERNARD HOLLAND XN MR JAUNCEY
unsupervised. I also understand that you believe that industrial action would have various adverse effects on Woolworths other than just loss of revenue from products which were not available. In this regard, I understand that you believe that most consumers see supermarkets as a one stop shopping destination. You have also told me that a competitor's supermarket - usually Coles - is often across the road from a Woolworths supermarket or on the other side of a shopping centre. In this regard, I understand that you believe that if customers attending at a Woolworths supermarket saw a lack of meat products or saw meat which they did not regard to be fresh, you believe that they would - that at least some customers would be likely to go over to Coles to buy all their groceries thus meaning that Woolworths would have lower sales in other areas. I also understand that you believe that in those circumstances the next time that a customer came to shop at a supermarket that customer would choose to go to Coles rather than to Woolworths, or indeed they would choose to go to any other competitor. In this regard, you have told me that you believe that customers, or that a large number of customers are quite careful in checking the freshness of their meat products and could be put off if they did not believe that they were fresh. Do you believe that that is an accurate summary of the statements which you told me earlier today?---Yes, that is correct.
PN187
Is there anything in that which you believe to be incorrect or not quite correct?---No.
PN188
Is there anything that you would wish to add to my summary of what you have told me?---No.
PN189
Thank you, Commissioner.
PN190
THE COMMISSIONER: Good, thank Mr Jauncey. Mr Norris, do you wish to cross-examine?
PN191
MR NORRIS: There are no questions, Commissioner.
**** SHANE BERNARD HOLLAND XN MR JAUNCEY
PN192
THE COMMISSIONER: Thanks very much, Mr Norris. Does that conclude your case, Mr Jauncey?
PN193
MR JAUNCEY: Subject only to reply, yes, Commissioner.
PN194
THE COMMISSIONER: Good thank you. Mr Norris?
PN195
PN196
THE COMMISSIONER: Sorry. Thank you for doing my job for me, Mr Norris.
PN197
MR NORRIS: Commissioner, it is mentioned in the application that there were proceedings by way of conciliation on 8 March this year. That particular factual background of course I wish to establish quite briefly, given that proceedings in conciliation are considered confidential and without prejudice. And in that regard there are simply two pieces of correspondence at this stage in connection with that that I seek to hand up.
PN198
The first is a letter from the Australasian Meat Industry Employees Union directed to the Human Resource Manager of Woolworths Queensland dated - - -
PN199
THE COMMISSIONER: We will mark that R1.
EXHIBIT #R1 LETTER FROM AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION TO HUMAN RESOURCE MANAGER, WOOLWORTHS QUEENSLAND
PN200
MR NORRIS: R1, yes, thank you, Commissioner. It is dated 21 October 2003. And before the Commissioner's associate goes away, there is another one and it is a reply essentially to R1. It is dated 18 November 2003. It is a letter from Woolworths under the hand of Mr Peter Danelle. I tender that into evidence.
PN201
THE COMMISSIONER: Good, that is R2.
EXHIBIT #R2 LETTER FROM PETER DANELLE OF WOOLWORTHS TO THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
PN202
MR NORRIS: Commissioner, just at this juncture I note from the correspondence that the union in effect wrote to Woolworths indicating that it sought to become party to the negotiations for a new agreement which were at that time likely to occur in 2004. The reply simply states that the company was entering into negotiations as from 15 March 2004, and quote:
PN203
You will be advised as to the venue for such negotiations in early January 2004.
PN204
Now, to jump a little further forward - it is not quite a quantum leap - I believe there is correspondence which from what I heard during the exchange from the Bench is before the Commission, and it is dated 19 March 2004. It is a piece of correspondence under the hand of Mr Carr on behalf of Woolworths Limited. I can hand a copy up and tender it into evidence, Commissioner; nonetheless it may save a bit of time searching through the file.
PN205
THE COMMISSIONER: Thank you, we will call it R3.
EXHIBIT #R3 CORRESPONDENCE FROM MR CARR OF WOOLWORTHS DATED 19/03/2004
PN206
MR NORRIS: Now, it begins by noting - or it is addressed to Mr Richardson and it simply states:
PN207
I refer to your letter of 17 March 2004.
PN208
This is obviously after the proceedings on 8 March 2004, Commissioner, and the important paragraph is the penultimate one on the second page which states:
PN209
In the circumstances Woolworths does not consider if necessary all appropriate for parties other than Woolworths in the SDA to be involved in the current negotiations. Nor does Woolworths wish to enter into a separate agreement to only cover employees in the meat units. I trust that this answers your questions -
PN210
which is the final paragraph. Now, in our submission the situation is crystal clear. The company is refusing to enter into negotiations with the AMIEU, and the corollary of that is - if it needs to be stated - the company is refusing to entering into an agreement which may be certified under Division 2. And we rely upon that chain of correspondence to establish that proposition, and with respect it is irrefutable.
PN211
That, in our submission, Commissioner, brings us to the nub of this case, or the central issue. And the central issue is: are these employees able to take protected industrial action or is the proposed industrial action unprotected? Now, if it is protected - I will just clear this up as a preliminary point - if it is protected, questions about 170NC become irrelevant because that particular section - that particular part of the statute states in subsection (2):
PN212
subsection (1) does not apply to action or industrial action that is protected action.
PN213
So if it is protected action, 170NC becomes irrelevant. And whilst we are on that vein, Commissioner, if I could draw your attention to 170MT(1):
PN214
An order made by the Commission under Section 127 does not apply to protected action.
PN215
Now, that particular part of the Act has been examined in a number of cases - I believe in Coal v Allied. It is not a jurisdictional barrier to the Commission making the order, even directed towards action that is protected action, but it is a very very powerful consideration weighing against the making of such an order. Now, once those preliminary matters are cleared up, Commissioner, we turn to the main question and that is: does Section 170MN apply to the circumstances of this case?
PN216
Now, it is not in issue; it has been conceded. There is a certified agreement in place, it does cover the employment of employees in the classifications which this particular organisation is seeking an agreement for. The real question, in our submission, is whether or not the decision in Emwest makes it such that what is being claimed - to use the term from the statute - is something outside the terms of that existing agreement. And at that point, Commissioner, I believe a copy of Emwest at the first instance has been handed up. If not, I will hand it up in any event.
PN217
THE COMMISSIONER: We definitely have it.
PN218
MR NORRIS: I will hand it up just in case we are working off different copies.
PN219
THE COMMISSIONER: Okay. That is all right. I think it was your copy anyway, wasn't it? Yes, it was.
PN220
MR NORRIS: That is the Full Bench - the Full - - -
PN221
THE COMMISSIONER: Yes, I think you were kind enough to give me an earlier copy, but we will call it R4.
PN222
MR NORRIS: I don't propose to spend much time on this. This is the decision at the first instance, Commissioner, it is the decision of Kenny J. The material passages that we emphasise are at page 397, beginning at paragraph 43, which is the number that appears on the left-hand side of the page. It simply reads:
PN223
The issue in this case arises out of the ambiguity created by the use of the expression "in respect of the employment of employees whose employment is subject to the agreement".
PN224
Now, they are the direct words from the language of 170MN. The reference to the agreement is a reference to the certified agreement with a nominal expiry date which has not yet passed. The whole expression is however capable of having more than one meaning. So her Honour has identified immediately that there is ambiguity possible in construing that particular phrase in 170MN. And her Honour goes on to say:
PN225
The expression may be read as referring to "the employment of employees (where this) employment is (specifically) subject to the agreement."
PN226
Now, that is the formulation that her Honour developed as a possible construction, and to put it simply it simply results that if it is a matter not dealt with in the agreement the prohibition or the prescription in 170MN does not apply. Her Honour goes on to say as much when she says:
PN227
That is, the expression may refer to only the matters actually agreed upon by the parties in the agreement. If so, the prohibition would relevantly extend only to industrial action taken for the purpose of advancing claims in respect of such agreed matters.
PN228
Now, the only other part that we would seek to draw to the Commission's attention from this decision is on page 400. It begins at paragraph 55 - again 55 appears on the left-hand side of the page - and it is about halfway down that particular paragraph where her Honour states:
PN229
Assuming the policy behind Section 170MN is to encourage parties to adhere to the bargain they have struck then the policy would not, in my view, be defeated by permitting the parties to negotiate effectively in respect of matters that were not the subject of a relevant certified agreement.
PN230
And her Honour goes on to develop that particular point.
PN231
Now, Commissioner, I now seek to refer to the decision of the Full Federal Court on appeal from her Honour's judgment. That would be exhibit A7 already before the Commission. And, in particular, Commissioner, I'd ask the Commission to take particular notice of a paragraph appearing at page 456, paragraph 24, where the joint judgment of French and Von Doussa JJ simply set out the findings, or the propositions of law that Kenny J relied upon where her Honour formulated the proper construction of 170MN. Now, I won't go over it again. It's simply repeating the propositions that her Honour developed in the judgment below. The important point is when one turns to page 459, paragraph 39, on the left hand side again both their Honours simply state:
PN232
For the preceding reasons, we are of the opinion that Kenny J did not err in her approach to the construction of section 170MN and that the appeal should be dismissed.
PN233
Now, Commissioner, one could traverse through all of the policy reading reasons and, indeed, the little indications that were relied upon even in this judgement to arrive at that conclusion that it's really bye the bye. Their Honours have adopted the formulation of Kenny J and that's really the only relevant part of the decision. Now, the remaining decision of Marshall J is definitely not at odds with this conclusion. And, indeed, at page 464 - if the Commission could turn over - paragraph 71, generally speaking his Honour identifies that there is two possible constructions of this particular part of the Act. But in the bottom half of that paragraph, his Honour states:
PN234
The overriding concern of section 170MN is the protection of the bargain of the parties in respect of the ...(reads)... outside the purview of what the parties have agreed upon or of what the Commission has imposed upon them.
PN235
Now, in my submission the law is crystal clear. If it is not a matter dealt with by a certified agreement then 170MN has no application whatsoever. Now, Commissioner, our case is simply this: at the moment, Woolworths are refusing to enter into a Division 2 agreement with the AMIEU. That is what this action is about. That is what the claim is to use the language of the statute: that Woolworths should sit down, negotiate with the AMIEU and ultimately enter into an agreement with the AMIEU. That is not a matter dealt with by the certified agreement relied upon. Indeed as it has been conceded many times, the AMIEU is not even a party to that particular certified agreement.
PN236
Commissioner, in our submission it would be intellectually and conceptually impossible to characterise this industrial action as relating to a claim that is dealt with by the existing agreement. The parties have yet to even sit down and talk about the matters in issue. There is no liquidated claim before the employer or any claim of any specificness. There is a threshold issue. One that is quite separable from all the others that are contained in the notice initiating a bargaining period, and that separable issue is whether or not this company will enter into an agreement with the AMIEU. Now, Commissioner, when one turns to the entitlement to take protected industrial action, the relevant section being section 170ML of the Act, subsection 2 states:
PN237
During the bargaining period: Paragraph A, an organisation of employees that is a negotiating party; or paragraph B, a member of such an organisation who is employed by the employer -
PN238
and I don't propose to deal with the remaining paragraphs because these are the two that are most relevant -
PN239
is entitled for the purpose of paragraph E, supporting or advancing claims made in respect of the proposed agreement or responding to a lock-out -
PN240
which is not presently relevant. Now, Commissioner, to put it within this language, the AMIEU and its members are making a claim against Woolworths that it should enter into a Division 2 agreement with the union and its members: that's the claim. Woolworths are refusing. It is not a matter dealt with by the present certified agreement. It is outside the purview of 170MN. There is no dispute that the purported protected industrial action has been duly authorised or that the requisite notice periods that are required by the Act have been complied with. There is no issue about those particular matters. In my submission, the action is protected action. It hasn't even commenced yet.
PN241
There are no grounds whatsoever why the Commission would consider exercising its discretion to make a section 127 order against action which is clearly protected action. There are some instances of this Commission making such orders even in respect of protected industrial action. In my submission, it is most typically done after extended lock-outs or, indeed, extended industrial action where the parties are effectively deadlocked. This dispute is only in its formative stages, and there are no grounds upon which the Commission would seek to interfere at this stage with what are drastic orders.
PN242
Now, turning to some of the matters to which my learned friend relied upon in making his case, there was a point taken that the notices that have been delivered upon the company don't specify what the particular claim is the action is being taken for. In my submission, there is no requirement whatsoever either under the Act or in any authority that my friend can point to which requires the union to actually set that out. Secondly, with all due respect the submission is industrially naive. The Commission would be well apprised of the background to this by the correspondence, well apprised of where the parties are at in terms of these proposed negotiations. And no one, let alone Woolworths, should be under any sort of misapprehension as to why this action is being taken.
PN243
And indeed if it were in any sort of doubt, there is evidence of the union's correspondence of 30 March 2004 which makes it clear the action is being taken with a view to forcing Woolworths to sitting down and negotiating an agreement with the AMIEU. Now, there was an attempt to distinguish Emwest on the basis that it related to its own particular set of circumstances. Well, with respect, that submission can be made about any case and most typically is when one is seeking to distinguish one. But the reality is the propositions of law on the construction of 170MN which were developed in Emwest are of universal applicability despite the facts in Emwest. The full Federal Court has given a very, very clear judgment on what those words mean. It's really bye the bye that in Emwest there were different factual circumstances relating to different agreements. We are all very, very clear on what 170MN now means.
PN244
Now, the other point that was taken was a homespun example and I would, with all due respect, characterise it as the floodgate submission, that if the Commission were to accede to our submissions a union could within a year's time come back and conjure up a dispute with an employer that it had just recently entered into a three year certified agreement with. And those particular claims could be for improved wages.
PN245
With respect, the example falls over even on its own facts because under the terms of Emwest if wages were dealt with in the agreement then it's off - it's within the purview of 170MN and therefore caught within the prohibitions. So the example doesn't even get up off the ground, let alone acquire any force. It's within the terms of Emwest. Now, it was said that what could occur then is that the union could claim that the employer wasn't negotiating with them. But, again, with respect, it's a situation caught within Emwest.
PN246
The employer had already negotiated with the union and had already entered into a settlement. That's to be sharply distinguished from this particular set of circumstances where there is no prior entry into an agreement and no prior settlement of the matters such that would be requisite in order to come under 170MN. Now, Commissioner, some reliance was also placed upon the decision of Senior Deputy President Polites in the case Re Esso Australia Pty Ltd.
PN247
And this was the fall-back position and it simply was put on this basis. "Well, even if you're not sure whether or not it's protected or unprotected make the orders anyway and just exempt protected industrial action from them". With respect, on discretionary grounds, Commissioner, you would not accept travelling down a course of action like that. It is only going to add serious confusion to what is already a difficult situation for both parties and some very, very clear determination needs to be made, in my respectful submission.
PN248
And, in any event, the reliance, with all due respect, was quite misplaced. Senior Deputy President Polites in that case was faced with a question of law which was very, very uncertain and very, very unclear on the state of the authorities before him. Indeed, his Honour only had one judgment of an interlocutory nature upon which to glean some sort of principle of law. That is to be contrasted sharply with the current circumstances. We have a decision of the Full Court of the Federal Court which states the law in controvertibly.
PN249
The Commission is well in a position to make a determination in this case whether or not this action is protected or unprotected. It's very, very different to the circumstances - difficult circumstances that Senior Deputy President Polites was facing in that particular case and for that reason the approach that was urged upon the Commission ought to be rejected. Commissioner, there's just one final point that was raised during my friend's case. It relates to sub-clause 1.4.1 of the current certified agreement.
PN250
Now, my learned friend described it as perhaps not being felicitous. We would certainly agree with that particular submission. And, with respect, the corollary of the position is how can one place any reliance whatsoever on what the intent of this particular sub-clause is? Because, in our submission, it could be read in one of a number of ways, the least of which is all it was intending to do was to state the relationship between the award and this particular agreement. With respect, it's a very, very long bow to draw thereafter to say that it's suddenly a comprehensive code of employment conditions covering the field of the relevant employees.
PN251
That is about four or five steps beyond the scope of this clause which is urged upon the Commission and one which we submit, with all due respect, is erroneous. Unless the Commission has some question relating to the submissions I've made I can't take the case for the respondent any further at this stage.
PN252
THE COMMISSIONER: Good, thanks, Mr Norris. I do have a number of questions for you. Mr Norris, despite the fact that your union isn't a party to the current agreement you nonetheless - presumably and obviously so, but I need you to take me to that in some detail if you can - are representing those employees at those various coal sites nonetheless to which - in the various meat units.
PN253
MR NORRIS: Not coal, Commissioner.
PN254
THE COMMISSIONER: Sorry.
PN255
MR NORRIS: I'm not exactly sure who the Commissioner has just defamed but we will sort through it, I'm sure.
PN256
THE COMMISSIONER: I apologise. I didn't introduce the word "coal", someone else did. But, Mr Norris, you presumably are representing those employees in the various Woolworths meat units. You have had, I presume - and I do recollect certain matters that have been raised before me in the past that you've had various meetings with those employees at those various sites, have you?
PN257
MR NORRIS: Yes. If one can accept - if the Commission can accept a report from the Bar Table there have been meetings conducted with members of the AMIEU employed by Woolworths in these establishments. And, yes, from our side of the Bar Table we do represent all those employees.
PN258
THE COMMISSIONER: Yes. What is also in my mind, though, is that those employees who - the employees who are taking action are taking action or intending to take action pursuant to your notices, are taking action that is - that they are doing so openly in an understanding that - aren't following your consultation with them.
PN259
MR NORRIS: That is being organised - orchestrated, conducted by the AMIEU.
PN260
THE COMMISSIONER: Yes.
PN261
MR NORRIS: Commissioner, if the Commission is not with us and decides to make a 127 order there is no jurisdictional impediment to that order also being made against the union. Those are our submissions on the point.
PN262
THE COMMISSIONER: That was actually my next question I was going to ask because I had that discussion with Mr Jauncey as to - the employees are subject to the agreement, however, the union is not bound to the agreement. Why, as a consequence, should any order - if an order be made why should it apply to the union? Your argument - you're suggesting to me now your submission is that I shouldn't distinguish between the two for the purposes of this current matter.
PN263
MR NORRIS: We present no submissions that the Commission cannot embark upon the course which is being urged.
PN264
THE COMMISSIONER: All right.
PN265
MR NORRIS: We don't contest the proposition, Commissioner. And the only point I do seek to make in terms of the draft order, at paragraph 3(b) it's being asked that:
PN266
The AMIEU, stewards, officials, delegates and employees must immediately recommend the continuation of normal work by the Meat Unit employees.
PN267
Now, with respect, that amounts to something like a mandatory injunction which, in my submission, is beyond the powers contained in Section 127. And if I might say, without any disrespect, it's not normally an order that is made. If a 127 order is made it's directed against the parties and there are orders made as to how it might be served upon those parties. There is never any order made placing an obligation on one of the parties to inform the other parties, being the union members, to not do what they are doing.
PN268
That amounts to something like a bans clause that one used to see in the past but certainly there's no jurisdiction to be doing things like that under 127.
PN269
THE COMMISSIONER: Well, I would like to hear Mr Jauncey on that when the time comes as well then.
PN270
MR NORRIS: Yes. That's the only point we take about the draft order, Commissioner.
PN271
THE COMMISSIONER: Duration at all come into play, Mr Norris; terms and date of effect?
PN272
MR NORRIS: Well, my friend complains in this application of action on the 2nd and the 5th. An operative date around the 6th - until the 6th would be appropriate, in my submission. I can undertake to the Commission on the transcript, if the Commission determines that this action is unprotected there will be no further issuing of notices until - - -
PN273
THE COMMISSIONER: So the fear about the 7th, I think, Mr Jauncey - that's not of substance if the order went against you - if there was an order that went against you.
PN274
MR NORRIS: If the case went against us, yes.
PN275
THE COMMISSIONER: Thanks.
PN276
MR NORRIS: Until 27 May, of course.
PN277
THE COMMISSIONER: Yes. You're in a different environment then, as we've already noted previously. Yes. Thank you, Mr Norris.
PN278
MR NORRIS: So in light of those undertakings, Commissioner, we suggest, with respect, it's unnecessary for the Commission to make the order until 27 May. If we're told that what we're doing is unprotected we will cease and desist immediately.
PN279
THE COMMISSIONER: Thank you, Mr Norris.
PN280
MR NORRIS: Thank you, Commissioner.
PN281
THE COMMISSIONER: Mr Jauncey.
PN282
MR JAUNCEY: Thank you, Commissioner. Perhaps if I might just deal quickly with one issue raised by yourself, Commissioner, and then very briefly with three issues in response to Mr Norris. The issue which was raised by yourself and also by Mr Norris was the extent to which an order such as the one which we seek in paragraph 3A might properly be made. Commissioner, I wasn't aware that that matter was in contest. However, I have flicked through some of the decisions with me and I can provide a limited amount of assistance in that regard. That is the fact that I can refer to a case, Moranbah North Coal Management Proprietary Limited v CFMEU. It was heard before Spender J in the Federal Court of Australia Queensland District Registry and the decision was delivered on 12 June 2002. The reference for it is (2002) FCA 738. I only have a single copy available but I'm happy to make it available to your associate - - -
PN283
THE COMMISSIONER: I don't need that copy.
PN284
MR JAUNCEY: - - - for copying. This concerned an application which was brought in the Federal Court of Australia in relation to certain orders which had been made by Commissioner Bacon of this Commission. The orders which have been made by Commissioner Bacon included a paragraph 3C. That paragraph stated that:
PN285
The CFMEU must in respect of or in any way in connection with the decision of the High Court in ...(reads)... simplification decision of the Full Bench of the Australian Industrial Relations Commission.
PN286
And then it lists certain things that the CFMEU must do. One of those is to withdraw its request that certain persons cease work and to immediately advise all relevant lodge secretaries that this request has been withdrawn and direct the relevant lodge secretary that a return to normal work without any restrictions, limitations or delays must occur immediately. Commissioner, I accept that that is not in the same terms as the order which we seek here, but it is an example of an order which imposed a positive obligation on a union to do certain things to ensure that industrial action prohibited by the order did not occur.
PN287
Commissioner, whilst I don't have it with me and I apologise for that, I also recall the matter some two years ago also involving the CFMEU and as my memory serves me, Commissioner, what weight we can place on that. That was a circumstance in which Mr Tony Maher of the Coal Division had been directed not to engage in industrial action as well as a positive direction to withdraw a request. And when he did not do so, ..... proceedings were brought against him in the Federal Court resulting in a $200,000 fine which was subsequently lowered. But I accept that that is just my memory of the case, no more than that. I believe that there are other cases but beyond that, I'm not currently in a position to take that point any further.
PN288
THE COMMISSIONER: Yes. If I recall from the respondent if you like - Mr Norris' submissions with regard minus those matters is a moot point regardless, isn't it, because it's the finding that is directive in this matter not the terms in which the obligations imposed on the union?
PN289
MR NORRIS: The other point, of course, is what are we to do?
PN290
THE COMMISSIONER: Yes.
PN291
MR NORRIS: "Must immediately recommend." How, why, where, by what means? It's a fundamental thing about orders of this nature that they need to be clear and precise.
PN292
THE COMMISSIONER: Yes, well, look, should an order issue it will be subject to my consideration about these matters. In any event, I take the point that where I don't think there is any necessity at the hour to embark on a debate about a matter that is for all intents and purposes somewhat academic given the order - well, the finding itself is what is directive in this matter for the purposes of the conclusion of industrial action not the way in which the direction is couched for it to stop.
PN293
MR JAUNCEY: That may be so, your Honour. We press the orders as sought but I don't wish to be heard further on that.
PN294
THE COMMISSIONER: Yes. There are other - and, of course, my considerations to any prospective order are also judged subject to my wider considerations as to the appropriateness of various clauses and other expressions as well as date and time and duration - time and date of effect as well.
PN295
MR JAUNCEY: Commissioner, perhaps I shall come to that in a minute. There are just three points that I wish to respond to very quickly in relation to Mr Norris' submission. The first is the point about clause 1.4.1 and he says that it does not evince an intention that the agreement should be comprehensive and cover the field. We disagree with him on that of course. But the point that I would just wish to say is that of course when one looks at the agreement it is extremely comprehensive in its terms, and many of the issues raised in the AMIEUs bargaining area notice are of course matters which are dealt with in considerable detail in the agreement. And in that regard, I would refer the Commission again to paragraph 38 of the Full Bench decision in Emwest.
PN296
The second point that I wish to make in response to Mr Norris' submissions is this. About two-thirds of the way through his submissions, he said that the case is simply this: Woolworths is refusing to enter into a Division 2 agreement; that is what the action is about and, Commissioner, it's probably not a bad summary but is the issue. It is that Woolworths is refusing to enter into a Division 2 agreement which deals with wages which are covered by the current agreement which deals with leave and which deals with a whole host of conditions. One can't divorce the refusal to enter into the agreement from the substantive provisions of the agreement. It's not as if we have left some room in which further bargaining was always envisaged to take place. What they want is to talk about substance and that's what brings them within Section 170MN.
PN297
The final point I would make is this; it goes to the issue which the Commission just averted to, which was date and time of order. The order which we have sought is not an excessive one. It is specifically drafted to apply only until 27 May 2004. That's the day on which the relevant certified agreement reaches its nominal expiry date. After that we accept without reservation that the AMIEU can seek to take protected industrial action against us so long as the forms of the Act are followed. It's not as if we're trying to shut them down forever. All we're saying is wait until the NED and then they can have their go but they have got to wait. Thank you, Commissioner.
PN298
THE COMMISSIONER: Good, thanks, Mr Jauncey. I have the unusual luxury in Section 127s of having a day up my sleeve before such time as action takes place, which gives me an opportunity to reflect on this matter this evening. I will attempt to issue a decision in this matter by early afternoon tomorrow, given that we haven't approached the threshold as to when the proposed action will start. So I will, as I said, attempt to issue a decision in this matter by early afternoon tomorrow and on that basis we're adjourned. Thank you for your submissions everyone.
PN299
And, Mr Norris, can I thank you for making - changing your arrangements today. Even though there are - people reflect on these matters and so the action gave rise to the occasion there are willing and unwilling participants and I appreciate your co-operation. Thank you.
PN300
MR NORRIS: Thank you, Commissioner.
ADJOURNED INDEFINITELY [5.36pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 FURTHER PROPOSED ORDER PN10
EXHIBIT #A2 COPY OF LETTER AND NOTICE INITIATING BARGAINING PERIOD PN31
EXHIBIT #A3 LETTER FROM AMIEU TO WOOLWORTHS PN37
EXHIBIT #A4 LETTER FROM MR CARR TO THE AMIEU PN51
EXHIBIT #A5 BUNDLE OF TWO LETTERS PN55
EXHIBIT #A6 DECISION IN COAL AND ALLIED OPERATIONS PTY LTD AND AFMEPKIU AND OTHERS PN67
EXHIBIT #A7 EMWEST DECISION PN85
EXHIBIT #A8 ESSO AUSTRALIAN DECISION PN116
SHANE BERNARD HOLLAND, SWORN PN185
EXAMINATION-IN-CHIEF BY MR JAUNCEY PN185
WITNESS WITHDREW PN196
EXHIBIT #R1 LETTER FROM AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION TO HUMAN RESOURCE MANAGER, WOOLWORTHS QUEENSLAND PN200
EXHIBIT #R2 LETTER FROM PETER DANELLE OF WOOLWORTHS TO THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION PN202
EXHIBIT #R3 CORRESPONDENCE FROM MR CARR OF WOOLWORTHS DATED 19/03/2004 PN206
EXHIBIT #R4 COPY OF EMWEST PRODUCTS PTY LTD PN222
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