C2004/4487, Transcript of Proceedings [2004] AIRCTrans 2502 (7 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7601
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C2004/4487

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the Act
by Grocon Constructors Pty Limited re industrial
action at Eureka Tower project in Melbourne

MELBOURNE

3.20 PM, FRIDAY, 25 JUNE 2004

PN1

MR H. SKENE: I seek leave to appear on behalf of Grocon Constructors Pty Limited. I understand there is no appearance from the two respondents to the application.

PN2

THE DEPUTY PRESIDENT: Thank you. All right. Just to add to that, my Chambers has spent the last three quarters of an hour attempting to contact both the CFMEU and ETU and has spoken to a number of individuals, including a Mr Raoul Wainwright and I think a Mr David Muir and neither are able to attend. We offered Mr David Muir the opportunity to attend through the speaker phone and he declined that offer.

PN3

MR SKENE: I understand, your Honour. Thank you. I suppose our initial issue is just about the opportunity to be heard.

PN4

THE DEPUTY PRESIDENT: Yes.

PN5

MR SKENE: So perhaps I might outline the steps that have been taken to serve the application on those - - -

PN6

THE DEPUTY PRESIDENT: Before you do that, would it be useful to convene into a conference to deal with any issues there or do you wish to - I am in your hands?

PN7

MR SKENE: Yes, indeed.

PN8

THE DEPUTY PRESIDENT: It may be useful, that is all from your point of view. I do not know.

PN9

MR SKENE: Well, I suppose, your Honour, the utility of a conference has to be put in question where the union parties have not attended. I mean, my initial submission to you this afternoon was going to be to see if we could obtain a return to work in conference.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR SKENE: It would seem that that is unlikely, given we are the only people here.

PN12

THE DEPUTY PRESIDENT: Well, one option is to ring Mr Wainwright on the phone now - that may not be a useful - or, alternatively, it may be useful.

PN13

MR SKENE: Well, I suppose, your Honour, it is a question of timing as much as anything else. I mean our position was to attempt to resolve issues between us in conciliation but should that not have been possible by essentially 3.30, which is now - - -

PN14

THE DEPUTY PRESIDENT: Yes.

PN15

MR SKENE: - - - we were to press for interim orders and that is the submission that I would like to put to you this afternoon. In deference, I take it you have had an opportunity to read the application, your Honour?

PN16

THE DEPUTY PRESIDENT: Yes. Yes, I have. Thank you.

PN17

MR SKENE: Your Honour, as you will have seen from the application, it deals with industrial action that is happening currently in respect of the Eureka Tower project. That industrial action involves the CFMEU, the CEPU, its officials and delegates, and approximately 130 employees of Grocon Constructors and approximately 170 employees of sub-contractors engaged at the site. Now, the names of those sub-contractors are listed in an annexure to the application.

PN18

In my submission it is plain on the efforts that have been taken by your Chambers, your Honour, and also the steps that I will take you through in a moment, taken by the solicitors for the applicant that the union parties have had, what is in the circumstances, a reasonable opportunity to be heard. Now, in those circumstances it is my submission that, if you can be satisfied as to the jurisdictional pre-requisites to grant an order under section 127, and we have Mr Coker, who is the Project Manager of the Eureka Tower project and who was involved in the grounds set out in the application - if you can be satisfied as to those pre-requisites then it is appropriate and available to you to issue an order under section 127.

PN19

Now, in the circumstances, we would say we seek no more than an interim order, and pending the hearing and determination of the matter we accept that in the circumstances the matter cannot be finally resolved before you today. But these are serious matters and what we have is a site that is shut down at least until Tuesday morning, and possibly beyond that - and possibly beyond that, your Honour at the cost of some $50,000 a day and that cost is merely the fixed cost. It does not take into account the consequences of contractors or the consequences and associated costs with further delays to this project. Now - - -

PN20

THE DEPUTY PRESIDENT: So you are seeking an interim order - - -

PN21

MR SKENE: Yes, your Honour.

PN22

THE DEPUTY PRESIDENT: - - - under the new provisions that have just commenced, is that correct?

PN23

MR SKENE: That have just commenced. Well, that is right.

PN24

THE DEPUTY PRESIDENT: Right.

PN25

MR SKENE: And they are powers that are open to you, in any event under section 127, in my submission. In terms of the first issue which I foreshadow, which is that the unions have had an opportunity to be heard, there was a meeting on the site of a number of senior officials of the unions and management representatives of Grocon this morning and it was at that meeting that Grocon managers were informed that employees were stopping work until 7 am on Tuesday and it was intimated that no guarantee had been given at that stage about a return to work. Demands have been made and should those demands not be met we have every expectation further industrial action will occur on Tuesday morning.

PN26

Now, following that my client sought urgent instructions - or provided urgent instructions to Freehills and an application was prepared. That application was served on the union national office of both the CFMEU and the CEPU, and also their state office and also their legal office and Mr Maddison, who generally handles matters involving Grocon. Those steps were taken - - -

PN27

THE DEPUTY PRESIDENT: Affidavit of service or - - -

PN28

MR SKENE: No, your Honour, but I can hand up copies of the facsimile report.

PN29

THE DEPUTY PRESIDENT: Right.

PN30

MR SKENE: Which indicates that these - the application was filed by facsimile between 12.35 and 1.15 and there are about seven fax numbers that that was sent out to. While that process was under way, your Honour, service was effected personally by a - - -

PN31

THE DEPUTY PRESIDENT: Okay, well, hand it up and I will mark that.

PN32

MR SKENE: Yes.

EXHIBIT #S1 FACSIMILE REPORT

PN33

MR SKENE: Service was effected personally upon the national offices of the CFMEU and CEPU in Sydney by a paralegal employed by Freehills by the name of Ben Cameron. Now, that took place between 1 and 2 pm and a statement of service is being prepared and will be forward to you, although I don't have it at the moment.

PN34

THE DEPUTY PRESIDENT: Right. When will I get that do you think?

PN35

MR SKENE: Well, it is being fed now, your Honour, I imagine very shortly.

PN36

THE DEPUTY PRESIDENT: Excellent.

PN37

MR SKENE: There were other steps taken as well though, your Honour. The notice of listing that had been sent out by the Commission was also sent out by Freehills to the numbers that are on the facsimile sheet that are before you and messages were left on the mobile phone of Mr Maddison at quarter to one and again on arrival in the Commission at approximately ten past two. So a number of steps have been taken. We know that both the CEPU and the CFMEU have had notice of this application by simple virtue of the fact that your associate has spoken to relevant officers of the CEPU and CFMEU. They have indicated that those people are not available to be here. Now, that is simply not an excuse in answer to an urgent application in my submission.

PN38

THE DEPUTY PRESIDENT: Do you think it would be useful me to swear the - obtain sworn evidence from my associates as to what steps they took and who they spoke to? What is your view on that? Would that be of assistance?

PN39

MR SKENE: No, your Honour, I think that steps - - -

PN40

THE DEPUTY PRESIDENT: It is not necessary.

PN41

MR SKENE: - - - that have been taken by your chambers, you are on notice of those steps - - -

PN42

THE DEPUTY PRESIDENT: All right.

PN43

MR SKENE: - - - and if you are satisfied that they were taken you can act upon them.

PN44

THE DEPUTY PRESIDENT: Right.

PN45

MR SKENE: In any event what we are seeking here is not permanent relief.

PN46

THE DEPUTY PRESIDENT: So you want relief until when? So you want an interim order.

PN47

MR SKENE: Until the hearing and determination, your Honour. It is difficult to judge how long that might take. At this stage we would seek a hearing as early as possible next week, subject to your convenience. Monday is our preferable day.

PN48

THE DEPUTY PRESIDENT: Well, I can list it for 10.45 on Monday. I have - - -

PN49

MR SKENE: Well, your Honour, that would be convenient for us.

PN50

THE DEPUTY PRESIDENT: So we could make the - - -

PN51

MR SKENE: Now, we would anticipate - sorry.

PN52

THE DEPUTY PRESIDENT: For example, if an interim order was issued we could make it until close of business on that day.

PN53

MR SKENE: Yes, your Honour, though what we would - that would be open to you. What we would seek - and it may be appropriate for it to be argued again on Monday before you. What we would seek though is an order under section 127(3)(a) - 127(3)(b) provides that that order lasts until determination of the application. Until the application is determined that order would then cease to have effect. Now, that is, sort of, if you like, a statutory construction of the typical interlocutory arrangement whereby an interlocutory order is made until the matter is heard and determined. So that is what we would be seeking in the first instance. Now, equally, that order might need to be made after further argument and if your Honour - sorry.

PN54

THE DEPUTY PRESIDENT: Go on.

PN55

MR SKENE: It may be necessary and appropriate to hear further argument before your Honour were to determine an interim order of that length was appropriate. But in my submission we are not seeking here to do any more than require the parties to comply with the arrangements in their certified agreements and it is appropriate, and the certified agreement makes it express, that work shall continue as normal while disputes are dealt with. Now, that is a strong factor in favour of an interim order in my submission and it goes strongly to the prejudice of the parties. The prejudice in my submission flows almost entirely our way. There are processes in place for disputes to be dealt with and all we ask is that they be obeyed.

PN56

THE DEPUTY PRESIDENT: Do I have a copy of the dispute - the agreement from the dispute settlement procedure? I can obtain them from the Commission files but if you have them handy that might save some time.

PN57

MR SKENE: I don't have one to hand up, your Honour.

PN58

THE DEPUTY PRESIDENT: Right.

PN59

MR SKENE: I can say that the two relevant agreements - or the three relevant agreements are set out in paragraph 3.

PN60

THE DEPUTY PRESIDENT: Yes, I see paragraph 3, yes.

PN61

MR SKENE: The dispute settlement clause is contained in clause 13 of the CFMEU agreement, for example, and it provides that work shall continue as normal.

PN62

THE DEPUTY PRESIDENT: All right. Do you have a copy of that I can look at?

PN63

MR SKENE: Your Honour, I don't.

PN64

THE DEPUTY PRESIDENT: Right.

PN65

MR SKENE: I am afraid that I have come down here on rather short instructions myself.

PN66

THE DEPUTY PRESIDENT: All right, well, we will check that.

PN67

MR SKENE: Certainly.

PN68

THE DEPUTY PRESIDENT: Go on, please.

PN69

MR SKENE: So, your Honour, I guess once you are satisfied that there has been the requisite opportunity to be heard, the next step is to satisfy you with the jurisdictional prerequisites concerning the order. Now, Mr Coker, who have mentioned is the project manager on the site, he is available to give evidence about what has occurred this morning and also about the current state of play on the project, which as I say, that no work has been performed. He can also inform you, your Honour, that work is scheduled to occur tomorrow and on Sunday and whilst Monday is an RDO - - -

PN70

THE DEPUTY PRESIDENT: So work is scheduled for the weekend?

PN71

MR SKENE: Yes, indeed, rostered overtime, your Honour.

PN72

THE DEPUTY PRESIDENT: But not Monday.

PN73

MR SKENE: No, Monday is an RDO, your Honour.

PN74

THE DEPUTY PRESIDENT: Right. Sorry, go on, I interrupted you.

PN75

MR SKENE: No, not at all, your Honour. So in the circumstances what I would seek to do is to call Mr Coker to place on the record his evidence about these events. It would be my submission that based on that you - and the jurisdictional prerequisites concerning the making of an order are met, and that it is then open to your Honour to exercise your discretion to grant an interim order; give, as you say, until close of business on Monday where further steps can be taken and we have an opportunity to remedy work over - to make people available for work over the weekend. So that would be my submission on the appropriate way forward, your Honour.

PN76

THE DEPUTY PRESIDENT: Right. So do you want call that evidence now or do you have other submissions you - we need to deal with first?

[3.35pm]

PN77

MR SKENE: Unless your Honour has any questions I would propose to call Mr Coker.

PN78

THE DEPUTY PRESIDENT: Well, just about the section 127(3)A - - -

PN79

MR SKENE: Yes.

PN80

THE DEPUTY PRESIDENT: - - - what approach am I to take in relation to that? Do I take the approach taken by the courts in relations to interlocutory injunctions? Is the word "interim" to be looked at more in terms of the approach of the Commission in interim awards and the like?

PN81

MR SKENE: Yes.

PN82

THE DEPUTY PRESIDENT: I think I myself may have issued a decision using the Commission's approach in interim awards, for example.

PN83

MR SKENE: Yes.

PN84

THE DEPUTY PRESIDENT: Or both - or some other approach.

PN85

MR SKENE: Certainly, your Honour, the effect - - -

PN86

THE DEPUTY PRESIDENT: Without being difficult.

PN87

MR SKENE: Certainly, your Honour. Section 127(3)A, the power to make interim orders simply makes express in the legislation what was already the position prior to the enactment of the section.

PN88

THE DEPUTY PRESIDENT: Because of section 111?

PN89

MR SKENE: That is right. So as a result of the operation of section 111(2) your power under section 111(1)(b) to make interim awards and orders was open to you in respect of section 127. Now, other members of the Commission have seen fit to make orders; interim orders under section 127. I am afraid you will have to excuse me for not having copies of these decisions to hand up in the circumstances but the Commission has in the past seen fit to do that in a number of circumstances.

PN90

The first circumstance is where the Commission has decided that it is appropriate to issue an order but it hasn't yet had an opportunity to issue its full reasons so that type of approach has been taken by Munro J in relation to the Transfield disputation in 2001, for example. The second example where interim orders have been made is where the factual circumstances of the application are such that it is appropriate but the Commission hasn't yet had a full opportunity to deal with the matter.

PN91

And it is that second category that we say were in here so some examples of that again, Munro J did that in print R1184, Senior Deputy President O'Callaghan took that approach in the ..... matter in 2001 which is print PR905184 and Commissioner Merriman took a similar approach in the CFMEU v MP Group. Now, after that interim process has - that interim award has been issued, the Commission can then assess the matter and then it can decide to do a range of things. It could grant orders on a final basis, it could not make any order at all or it could make further interim orders and there is authority for each of those propositions.

PN92

And ultimately, in terms of the approach of the Commission, I think what you can glean from those decisions is that the Commission needs to be satisfied of the jurisdictional pre-requisites under section 127, in this case that industrial action is happening and that the work is work covered by a certified agreement, they are the two relevant jurisdictional pre-requisites and that the circumstances warrant the grant of an interim order. Now, in this case I can make some submissions about why your Honour should exercise your discretion in that way but the overwhelming feature is that all we seek is for certified agreements to be complied with and that the failure to comply with those certified agreements puts us to significant costs, I mean they are the two key discretionary considerations that your Honour should take into account.

PN93

Now, the other discretionary consideration here which I suppose goes more directly to the interim relief is that it will enable this matter to be dealt with in a more satisfactory way. At the moment we don't have the respondents here. It doesn't seem appropriate to conduct the matter on an ex parte basis however why should my client suffer that prejudice until the matter can be heard and determined in their presence? So I think the submissions - I don't know that I need to take it further than that, your Honour. You have the power under section 127(3)A. You previously had the power under section 127 in any event.

PN94

The approach is to recognise the jurisdictional pre-requisites and if you are satisfied as to their existence, whether interim relief as distinct from some other relief, is appropriate and it is there, your Honour, that the distinction between permanent relief and interim relief is the most close - needs to be most closely observed. You might be more willing to exercise your discretion to grant interim relief that you would be to grant final relief, in my submission.

PN95

If you required more fulsome submissions in relation to your powers to issue interim orders, your Honour, I would simply alert you to some authorities concerning section 170MW, the termination of a bargaining period where the Commission has issued interim orders under that section as well and a similar approach to the jurisdictional pre-requisites has been taken and I would rely on that, if need be I can take you through it more fully.

PN96

THE DEPUTY PRESIDENT: All right, perhaps we will hear your evidence then.

PN97

MR SKENE: Thank you, your Honour. I call Steven Coker.

<STEVEN EDWARD COKER, SWORN [3.42pm]

<EXAMINATION-IN-CHIEF BY MR SKENE

PN98

THE DEPUTY PRESIDENT: Before we start, we have left a message with Mr Wainwright of the CFMEU offering him the opportunity to put a submission or put submissions by phone. We have a phone hook-up here. We haven't received a reply yet.

PN99

MR SKENE: Thank you, your Honour. Would you state your full name?---Steven Edward Coker.

PN100

And what is your occupation?---Building Project Manager.

PN101

What are your responsibilities as Building Project Manager?---I am responsible for the construction of the Eureka Tower Project in Southbank for Grocon Constructors.

PN102

And you are employed by Grocon?---Yes.

PN103

Well, who does Grocon employ to perform the Eureka Tower Project work?---We employ a substantial direct workforce which undertakes all the construction work associated with the structure of the building, steel fixers, concreters, formwork carpenters and all the ancillary labour, hoist drivers, crane crew and all the supervisory staff.

PN104

And how many employees does Grocon employ?---130 men.

PN105

At the Eureka Project?---Yes.

PN106

What industrial arrangements does Grocon have in place in respect of those employees?---We have an EBA with the CFMEU.

**** STEVEN EDWARD COKER XN MR SKENE

PN107

And what the name of that agreement?---Grocon Constructors/CFMEU Enterprise Bargaining Agreement 2002-2005.

PN108

And when does that agreement expire?---I think it is 2005.

PN109

Yes. And that is in relation to the CFMEU workforce. What is the position in relation to other employees?---Well, we have other trades on site, we have - who work under EBAs with the ETU and the CEPU.

PN110

Thank you, Mr Coker. Who else does Grocon engage to perform work at the Eureka Tower Project?---We have a substantial number of subcontractors who employ a large number of workers involved on undertaking the following trades once the structure is complete both - - -

PN111

And, Mr Coker?---And all the services trades.

PN112

How many employees of subcontractors are there on the Eureka Tower Project?---In excess of 170 men and women.

PN113

So approximately 300 in total?---Yes.

PN114

I see. Were you present at the Eureka Tower Project site this morning?---Yes, I was.

PN115

What time did you arrive?---Shortly after 7 am.

PN116

Would you outline events that happened that morning?---Yes. Just prior to arriving on site I was contacted by George Paccagnan our site manager who advised me that he had been - just been informed by the CFMEU shop steward Phil Leckie that - he had advised that union organisers were coming to site and that there would be a meeting convened of the workers on site that morning but that the officials would wish to meet with management prior to that meeting.

**** STEVEN EDWARD COKER XN MR SKENE

PN117

And at that stage what work was being performed on the site?---A small number of workers had just started to make their way up to the top of the building for work to start on the core construction.

PN118

And what was the position with the other employees on the site?---They had all - they - no-one had actually commenced work at that time.

PN119

And what time are employees supposed to start work at the site?---A small number start at 6.30 am and - but the bulk of the men start at 7 am.

PN120

And what happened at 7 am?---Nobody was - all men were in the lunchroom accommodation and nobody - no-one started work.

PN121

I see. Now, you mentioned a minute ago a meeting that was to happen?---Yes.

PN122

Did that meeting occur?---Yes, at about approximately 7.30 am.

PN123

And who was present at that meeting?---Myself and George Paccagnan from Grocon, Bill Oliver from the CFMEU, David Mier from the ETU, Neil O'Brien from the Plumbers Union, Ken Johns from the CFMEU FEDFA.

PN124

Yes?---Phil Leckie from the CFMEU, Silvio Germano, Ivan Bolta from the ETU, Nazza Attobre from the Plumbers Union and Sam Gadd from the CFMEU.

PN125

I see. Now, you mentioned Bill Oliver?---Yes.

PN126

Do you know who he is?---He is the - I understand he is the Assistant Secretary of the CFMEU.

**** STEVEN EDWARD COKER XN MR SKENE

PN127

Yes. And you mentioned David Mier, do you know who he is?---I think he is - I understand he is an organiser with the ETU.

PN128

I see. And Neil O'Brien?---He is an organiser with the CEPU, the Plumbers Union.

PN129

I see. And you then mentioned Sam Gadd, Nazza Attobre?---Yes, Nazza is the Plumbers shop steward on site, Sam is the CFMEU safety representative.

PN130

And you mentioned Ivan Bolta, Phil Leckie and Silvio Germano. Who are they?---Ivan is the ETU shop steward. Phil Leckie is the CFMEU shop steward and Silvio Germano is the CFMEU FEDFA shop steward.

PN131

I see. Now, you mentioned that Bill Oliver is the Assistant Secretary, that Neil O'Brien is an organiser of the Plumbing Division of the CEPU and that Dave Mier is an organiser with the ETU. How do you know that those people are union officials?---Well, I have been in the industry for quite some time and I have seen their titles on various correspondence. I am quite aware of their roles in the industry.

PN132

Have you dealt with them before?---I have met with each of those gentlemen previously, yes.

PN133

Now, what happened at this meeting, Mr Coker?---Bill Oliver bought to George and my attention in front of the group that an electronic device had been found in the shop stewards office at - in the basement of the Eureka Tower Project on Tuesday.

PN134

Tuesday, this week?---This week by the Plumbers shop steward and the Electrical shop steward.

**** STEVEN EDWARD COKER XN MR SKENE

PN135

And what did this device look like?---I was shown a photograph on a mobile telephone of this device. The photo on the mobile telephone had a 10 cent piece and a black rectangular object next to it for comparison purposes so this black rectangular object was about three times the size of the 10 cent piece.

PN136

And where is this device now?---I don't know.

PN137

Have you seen it other than in the photograph?---No, I haven't.

PN138

What happened after Mr Oliver told you about this device?---Well, this was - he asked me whether Grocon had placed this device in the shop stewards office which I replied "Absolutely not". And then he asked me if Grocon had any dealings with the Building Industry Taskforce which I replied "Certainly not, to my knowledge". And I asked the meeting that if Grocon could be given details of this device, of when it was found and by whom and a photograph of the device, then it should be properly investigated.

PN139

And what access does Grocon have to this office where this device was allegedly found?---We don't have any access to that - to the union office.

PN140

So who has access to it?---The shop stewards.

PN141

Now, what did the union do then?---Mr Oliver advised that he - that the unions' position was that the - that they would refer the matter to the police and that they considered Grocon a suspect in the matter. I again reaffirmed that we had no knowledge of the device whatsoever and that the matter should be properly investigated and that we requested details of - again of where the device had been found, by whom and details of the device.

PN142

When - I withdraw that. What happened after this meeting?---I was informed by Mr Oliver that they would then be - planned to hold a mass meeting of all the workers on site and I asked him to meet management again after that meeting. He undertook to do that and the party left my conference room and a mass meeting of all workers on site was held.

**** STEVEN EDWARD COKER XN MR SKENE

PN143

And where did that occur?---On level 2 of the project.

PN144

And how many people attended that meeting?---I can only guess, in excess of 300 people.

PN145

I see, right. And from you understand, what occurred at that mass meeting?---Well, the matter was discussed. It was reported back to us via those officials that the matter was discussed and a resolution passed to leave site for 48 hours which meant no work would be performed on today, Friday or tomorrow, Saturday and that they would return to site on - for 7 am Tuesday but there wouldn't be a resumption of work until management had undertaken some sort of electronic sweep of all the amenities and the new union office; the shop stewards office and given a separate undertaking that they would provide a device to the shop stewards to allow them to continually sweep their office in the future.

PN146

And what was Grocon's response to those demands?

PN147

THE DEPUTY PRESIDENT: I am sorry, who made those demands?---Bill Oliver made those demands when he reported back to myself and George Paccagnan and another Grocon manager after the mass meeting.

PN148

MR SKENE: Who else was there at that report back?---The same gentlemen that were in the earlier meeting, that was about 20 minutes to 9.

PN149

I see. And what was Grocon's response to those demands?---I advised that I would need to refer their request to senior company personnel and that if they could give me 15 minutes I would get back to them.

PN150

I see?---Now, at that stage - - -

**** STEVEN EDWARD COKER XN MR SKENE

PN151

Have - - -?---Yes.

PN152

Are you aware type of device what type of device was allegedly found?---Well, only the photograph I have seen on the mobile telephone. I have no knowledge of what - it is alleged to be a electronic listening device.

PN153

What did the employees on the site do then?---They left site following their resolution not to return to the site until next Tuesday.

PN154

You gave some evidence about the Grocon enterprise agreements. What do those agreement say about the resolution of disputes on the site?---That work continue as normal and the matters are brought to the attention of management and - or every attempt made to resolve the issue without a disruption to work.

PN155

I see. And why are - why does Grocon say that the steps proposed by the CFMEU are not appropriate?---We have no knowledge of this device and how it came to be where it is alleged it is - where it is alleged it was discovered and so there is certainly no criteria or technical basis to even undertake a sweep of the site amenities and office. There would need to be a proper investigation to identify the type of device in the first instance anyway and we don't view it as an appropriate undertaking.

PN156

And what would be the effect of a sweep on the site on work?---Well, it would take a substantial - these - the accommodation is quite extensive over a number of levels of the project and it would take a considerable amount of time and there would be some - until the circumstances of the device were known it would be very difficult to undertake that and to establish proper people to undertake it in the first place.

**** STEVEN EDWARD COKER XN MR SKENE

PN157

And what work is rostered over the next few days?---Well, today there was substantial work scheduled all over the project. Eureka Tower is quite a substantial multi-storey undertaking. Currently the top of the core is at level 66. There would have been major steel fixing installation work on that. There was concrete programmed to be poured on the floor structure on level - above level 50. Formwork on level 50. Major operations on the building frame between level 49 and 50. Curtain wall window installation on level 40 and every facet of building construction between level 15 and level 40 behind those trades so substantial work.

PN158

What about over the weekend?---Similarly tomorrow those works were planned to continue and there was crane jumping activities planned for tomorrow afternoon and Sunday.

PN159

I see?---So very substantial works planned.

PN160

And what is the impact on that work not being done?---Well, significantly the crane jumping operations are scheduled generally for out of hours due to the nature of that work we try and schedule it to occur when the bulk of the workforce aren't on site so Saturday afternoons and Sundays are precious times where we try to undertake those activities. We have obtained the appropriate council permits and approvals to undertake that work.

PN161

What is the knowledge of the union of those permits?---We have made - we have certainly advised the union of our intention to carry out those critical works over the weekend and, as I understand it, it was proceeding with their knowledge.

[3.55pm]

PN162

How much would you assess the cost to be of - to Grocon of not being able to use this equipment?---Well, the outstanding cost in excess of $50,000 a day, but I mean the cost to the company is far more substantial than that; we are in lost production.

**** STEVEN EDWARD COKER XN MR SKENE

PN163

And what is the impact on the schedule of the project?---As I say, this is a very substantial project. It is probably will be the most significant multi-storey building in Melbourne on its completion and being a multi-storey construction of some 88 storeys it is being constructed to a tight construction schedule and certainly an interruption of this magnitude impacts directly on the program.

PN164

Before this device was brought to your attention - when was the incidence of the device first raised with you?---I heard a rumour of it on another site yesterday, but it was - and I checked with my site manager, George Paccagnan, at that stage and he had no knowledge of it. It was formally brought to my attention this morning at 7.30 am.

PN165

Thank you, Mr Coker. I don't have any further questions for Mr Coker, your Honour.

PN166

THE DEPUTY PRESIDENT: Just one question, Mr Skene. Did you deal with the issue of all the agreements which apply to the work?

PN167

MR SKENE: Pardon?

PN168

THE DEPUTY PRESIDENT: I might have missed this.

PN169

MR SKENE: Yes, Mr Coker gave some evidence that there were agreements that applied to the CFMEU - - -

PN170

THE DEPUTY PRESIDENT: Yes, and did he refer - just remind me, did he refer to the three agreements at paragraph 3 of your grounds?

PN171

MR SKENE: Yes, your Honour, he did. He gave a name of the CFMEU agreement, then he said that there were agreements with the ETU and the CEPU and he said that the CFMEU agreement expired in 2005.

**** STEVEN EDWARD COKER XN MR SKENE

PN172

THE DEPUTY PRESIDENT: Right. Thank you.

PN173

MR SKENE: I apprehend Mr Maddison has just joined us. Unless your Honour has any further questions for the witness I would ask that he be stood down and we deal with Mr Maddison's arrival.

PN174

THE DEPUTY PRESIDENT: All right. Well, we will stand down the witness temporarily and you are excused temporarily. Thank you very much.

<THE WITNESS WITHDREW [4.04pm]

PN175

THE DEPUTY PRESIDENT: Mr Maddison, you wish to appear?

PN176

MR MADDISON: Yes, I know it is a bit later than what I would normally appear, your Honour, but I do formally put an appearance on behalf of the CFMEU.

PN177

THE DEPUTY PRESIDENT: Yes.

PN178

MR MADDISON: Your Honour, in respect to this matter I was in the office and I saw the application come through on the fax, actually while I was faxing a - consenting to additional hours at one of the other Grocon projects at Exhibition Street where they had requested for some additional work over the course of this weekend and while I was faxing that off I saw this application come through. My immediate response was to call the head of the panel's associate, Vice President Ross, as I wasn't sure obviously when it was going to be listed at that stage, as I had another matter which I am currently involved in before Commissioner Blair on the 34th floor and I left messages for his Honour Vice President Ross, who seems to have had a bit of a habit of dealing with some of the Grocon matters.

PN179

Your Honour, I then went to the proceedings and just - we are just in conference at the moment. Commissioner Blair is with the employer party and I turned on my phone on and found a number of messages, including the fact that these proceedings had commenced before yourself. Now, I note that obviously some witness evidence has been led and I understand from one of the messages that interim orders were being sought and I just had a brief discussion with your associate who also indicated that was being sought. Obviously, your Honour, it goes perhaps almost without saying that I am certainly not in a position to cross-examine the witness; I am not in a position to do very much at all, other than simply oppose the making of any interim orders.

PN180

If you were to make an interim order and were, as I understand from your associate, that Mr Skene may be seeking to come back some time early next week and argue for more long-term orders.

PN181

THE DEPUTY PRESIDENT: Yes, Monday is the - - -

PN182

MR MADDISON: I indicated to your associate I have a matter in the Federal Court on Monday and what I would say to your Honour is if against our submissions you did grant interim orders, we would say that the applicant wouldn't be prejudiced by the matter not proceeding on Monday if they were protected by interim orders, given that - and I understand - - -

PN183

THE DEPUTY PRESIDENT: So you are suggesting Tuesday, are you?

PN184

MR MADDISON: Yes. I understand - Monday is a rostered day off. There wouldn't be any work in any event.

PN185

THE DEPUTY PRESIDENT: Yes.

PN186

MR MADDISON: And if they were successful - I understand that there is some concern about Saturday and Sunday work. Now - - -

PN187

THE DEPUTY PRESIDENT: We have just heard evidence about it.

PN188

MR MADDISON: Yes. If you were - like I said I am not in a position to say much more about the evidence and what you may do, other than we oppose the making of an interim order because we just simply haven't been in a position to do anything about this matter for the reasons that I have already indicated, your Honour. Now, if - and again, if the applicant were successful in getting an interim order we would say that whether the matter was then heard on Monday or Tuesday would not affect the working of the Saturday and the Sunday.

PN189

THE DEPUTY PRESIDENT: All right. Well, if we are discussing programming perhaps we can just adjourn briefly into conference to discuss it. Would that be appropriate? We are still on record, we haven't adjourned yet.

PN190

MR SKENE: Yes, sorry, just very briefly in reply to Mr Maddison's submissions about prejudice.

PN191

THE DEPUTY PRESIDENT: Yes.

PN192

MR SKENE: Our perspective is that there is work to be performed on Saturday and Sunday. If an interim order is not given we don't expect to be able to get employees to work on those days. If interim order were granted then we could do that and if Mr Maddison is unavailable on Monday, but is available on Tuesday, the interim order could be expressed to apply until then and further argument can be had about the extension of interim orders pending the hearing determination.

PN193

THE DEPUTY PRESIDENT: So in other words an interim order to close of business on Tuesday.

PN194

MR SKENE: Till close of business on Tuesday, indeed, your Honour.

PN195

THE DEPUTY PRESIDENT: And we would list the matter for 10.15 on Tuesday.

PN196

MR SKENE: If your Honour is available.

PN197

THE DEPUTY PRESIDENT: I am available.

PN198

MR SKENE: Yes. Well, that would be one course. Now, the difficulty with what Mr Maddison suggests from our perspective is that currently the employees are arriving on the site at 7 am on Tuesday. Now, if we are in here having a section 127 hearing before you - we at this stage don't have any commitments or expectation even that the employees are going to resume work at that time. You have heard evidence about - and I appreciate Mr Maddison hasn't - but you have heard evidence about some demands made by the union concerning steps that need to be taken about these listening devices.

PN199

It is entirely reasonable to expect that the union will not return to work on Tuesday if those demands are not met and the company has explained in evidence why it doesn't consider it is appropriate to meet those demands at this stage. Now, we are happy to have a discussion with the union about an appropriate process to resolve their underlying concerns, but not while industrial action is continuing on the site. So certainly we can deal with the matter before your Honour on Tuesday. We can deal even with the underlying issues with the CFMEU before then on Monday if that is possible.

PN200

But it is not appropriate that we not receive interim relief and suffer this prejudice on the basis that the CFMEU is not available till Tuesday, when there are no guarantees at all that work is going to be performed in the meantime.

PN201

THE DEPUTY PRESIDENT: All right. Shall we now adjourn into conference?

PN202

MR SKENE: I might just deal with one final matter and then certainly, your Honour. I mentioned a statement of service. This is an unsworn file note that has been prepared by the person who conducted the service upon the CFMEU and the CEPU. I can arrange for that to be provided. The person referred to is Benjamin Cameron who is paralegal employed in our Sydney office and I can arrange for a sworn version of that note to be prepared, but perhaps if that could be marked, your Honour.

EXHIBIT #S2 FILE NOTE FROM BENJAMIN CAMERON

PN203

THE DEPUTY PRESIDENT: I will just read it.

PN204

MR SKENE: Thank you, your Honour. That concludes the matters I wish to deal with on the record. Right, shall we adjourn into conference then? Yes.

PN205

MR SKENE: Yes, your Honour.

PN206

MR MADDISON: Yes.

SHORT ADJOURNMENT [4.11pm]

RESUMED [4.19pm]

PN207

THE DEPUTY PRESIDENT: We will go back on the record and open the door. Right, we are back on record now. Now, we have had a short conference, we haven't reached agreement at this stage. The form of the order, Mr Skene, can you take me through it please?

PN208

MR MADDISON: Your Honour, sorry to butt in but - - -

PN209

THE DEPUTY PRESIDENT: Yes.

PN210

MR MADDISON: I don't like to obviously labour this critical point but I am - - -

PN211

THE DEPUTY PRESIDENT: No.

PN212

MR MADDISON: - - - before another member of the Commission but I have got just a short kind of adjournment for so I could - - -

PN213

THE DEPUTY PRESIDENT: I beg your pardon.

PN214

MR MADDISON: That I just sought a short adjournment for it so I could - for the purposes of coming down here.

PN215

THE DEPUTY PRESIDENT: I see. So you are asking to be excused?

PN216

MR MADDISON: How long are you going to be?

PN217

MR SKENE: I will be 10 minutes.

PN218

MR MADDISON: Okay, all right, I think - I may - I understand Mr Skene is not going to be very long so I should - - -

PN219

THE DEPUTY PRESIDENT: All right. The form of the order, Mr Skene.

PN220

MR SKENE: Yes, your Honour.

PN221

THE DEPUTY PRESIDENT: Is this identical with an order that has been issued before by Vice President Ross repeatedly or - - -

PN222

MR SKENE: It is a - the form of the order which is attached is identical to the form of an order that was sought by Vice President - before Vice President Ross in relation to a dispute concerning the Exhibition Street Project which is one of my client's other projects.

PN223

THE DEPUTY PRESIDENT: So it wasn't actually issued, it was sought?

PN224

MR SKENE: No. The form of the order was an order was made by Vice President Ross on 22 March 2004.

PN225

THE DEPUTY PRESIDENT: Yes.

PN226

MR SKENE: That is in substantially the same terms as what is sought here.

PN227

THE DEPUTY PRESIDENT: Right.

PN228

MR SKENE: The differences are that, on the facts of that case, his Honour was not ultimately satisfied of the involvement of the CEPU or of the employees of the subcontractors.

PN229

THE DEPUTY PRESIDENT: Yes.

PN230

MR SKENE: So his Honour made an order that was directed to the employees of Grocon eligible to be members of the CFMEU and the CFMEU, its officers and delegates but not in respect of the CEPU and the subcontractors. Now, on the evidence that is before your Honour it is my submission that you can be satisfied at least on an interim basis, you can be satisfied that all the employees that have been referred to Mr Coker are not performing work which includes the 130 Grocon employees and 170 employees of subcontractors. So, in my submission, you have also got evidence of the involvement of the CEPU at the meetings this morning and their involvement in the demands that have been made concerning - - -

PN231

THE DEPUTY PRESIDENT: Just remind me what that evidence was.

PN232

MR SKENE: Mr Coker gave evidence of a meeting that occurred at approximately 7.30 this morning where there were - and it is referred to in paragraph 6 of the application I mean I think that substantially reflects Mr Coker's evidence. He says that he and Mr Paccagnan met with a number of union representatives including Bill Oliver, Sam Gadd who is a site representative, Nazza Attobre who is a shop steward for the CEPU, Ken Johns who is a FEDFA organiser, Neil O'Brien who is a CEPU organiser, Dave Mier who is an ETU organiser. There is no doubt that these people have participated in this meeting and in the subsequent mass meeting. They then came back with the report back to Mr Coker where they said we are going off until these things are done.

PN233

THE DEPUTY PRESIDENT: So the reservation in the other matter, it doesn't apply here because there is evidence of - - -

PN234

MR SKENE: Indeed.

PN235

THE DEPUTY PRESIDENT: - - - ETU involvement and of CEPU Plumbing.

PN236

MR SKENE: Yes, your Honour.

PN237

THE DEPUTY PRESIDENT: Right.

PN238

MR SKENE: And - - -

PN239

THE DEPUTY PRESIDENT: And the order you are seeking is applicable to both of those?

PN240

MR SKENE: To all - well, to the CEPU both divisions.

PN241

THE DEPUTY PRESIDENT: Well, to the CEPU as an organisation.

PN242

MR SKENE: Indeed.

PN243

THE DEPUTY PRESIDENT: Both divisions.

PN244

MR SKENE: Indeed, your Honour, and it is obviously accepted and I should say this as a final point, it is obviously accepted that the evidence that is before you for the purpose of this interim application has not been tested by cross-examination.

PN245

THE DEPUTY PRESIDENT: Yes.

PN246

MR SKENE: And ultimately it may be and an order in different terms may or may not be warranted.

PN247

THE DEPUTY PRESIDENT: Yes.

PN248

MR SKENE: There may be no order warranted but that is not the test for deciding whether an interim order is appropriate at all. So - and it is, in my submission, in the circumstances of these applications, it is - in the circumstances where an organisation has had an opportunity to be heard, you can be satisfied.

PN249

THE DEPUTY PRESIDENT: So apart from that, it is identical to the order issued - the form of the order issued on 22 March 2004 by Vice President Ross in relation to the Exhibition Street Project, is that right?

PN250

MR SKENE: No, Mr Maddison points out to me and he is right, that you will see that the draft order includes a statement.

PN251

THE DEPUTY PRESIDENT: Yes.

PN252

MR SKENE: That the CEPU and the CFMEU.

PN253

THE DEPUTY PRESIDENT: Yes.

PN254

MR SKENE: Were required to send out - - -

PN255

THE DEPUTY PRESIDENT: And that wasn't included?

PN256

MR SKENE: No. What his Honour Vice President Ross did was send out a statement from himself.

PN257

THE DEPUTY PRESIDENT: Right.

PN258

MR SKENE: To all the parties, that was in different terms but in any event, your Honour, I don't think I would press in the circumstances, particularly given this was dealt with ex parte, for paragraph 4.5.

PN259

THE DEPUTY PRESIDENT: So we will delete that.

PN260

MR SKENE: Yes, your Honour. Now, the final matter - - -

PN261

THE DEPUTY PRESIDENT: And 4.6 as well of course.

PN262

MR SKENE: Yes indeed, that flows.

PN263

THE DEPUTY PRESIDENT: Is there any other - any other consequential changes?

PN264

MR SKENE: Your Honour, 6 point - I just wanted to deal with service of the order.

PN265

THE DEPUTY PRESIDENT: Yes.

PN266

MR SKENE: That is set out in paragraph 6.

PN267

THE DEPUTY PRESIDENT: Yes, I am looking at that now.

PN268

MR SKENE: Yes. We would seek that 6.1 and 6.2 be made, that permits service by facsimile. We would seek that 6.3 which requires the unions to take all reasonable steps to notify their members remain.

PN269

THE DEPUTY PRESIDENT: Be deleted, yes.

PN270

MR SKENE: Well, I would seek that it remain, your Honour, providing that the order is - - -

PN271

THE DEPUTY PRESIDENT: Well, in the terms of clause 4.5, it is consequential. Isn't that linked - - -

PN272

MR SKENE: The - - -

PN273

THE DEPUTY PRESIDENT: Paragraph 6.3 is linked to paragraph 4.5 - - -

PN274

MR SKENE: 4.5.

PN275

THE DEPUTY PRESIDENT: - - - which is deleted.

PN276

MR SKENE: Yes, your Honour.

PN277

THE DEPUTY PRESIDENT: So we delete 6.3 as well, don't we?

PN278

MR SKENE: Yes, your Honour. And 6.4 as a result flows. And - but 6.5 which deals with service on employees and contractors.

PN279

THE DEPUTY PRESIDENT: Yes.

PN280

MR SKENE: Be taken by giving a copy of the order on noticeboards, we suggest that that remain.

PN281

THE DEPUTY PRESIDENT: Is this order binding on individuals or just the unions?

PN282

MR SKENE: It is sought to be - it is sought to apply to employees as well, your Honour.

PN283

THE DEPUTY PRESIDENT: Well, how are they to be notified?

PN284

MR SKENE: They are to be notified by that means there, your Honour.

PN285

THE DEPUTY PRESIDENT: By service on the union?

PN286

MR SKENE: By service on the noticeboards.

PN287

THE DEPUTY PRESIDENT: I see, 6.5.

PN288

MR SKENE: Yes.

PN289

THE DEPUTY PRESIDENT: Seek service on employees of Grocon and the - - -

PN290

MR SKENE: Yes.

PN291

THE DEPUTY PRESIDENT: - - - contractors that should be not contractors, yes.

PN292

MR SKENE: It should be, your Honour, and - - -

PN293

THE DEPUTY PRESIDENT: Listed at annexure A. Where is annexure A? I see, there they are.

PN294

MR SKENE: Now, your Honour, in terms of the weekend work.

PN295

THE DEPUTY PRESIDENT: So each one - each employee of Grocon and the contractors listed in annexure A will receive a copy of this notice?

PN296

MR SKENE: No, your Honour, the effect of 6.5 is that service is taken to have occurred - - -

PN297

THE DEPUTY PRESIDENT: I am sorry, it is done on the noticeboard.

PN298

MR SKENE: By putting it on the noticeboard. Now, obviously for the purposes of weekend work.

PN299

THE DEPUTY PRESIDENT: Yes.

PN300

MR SKENE: The employees are not going to be on the site.

PN301

THE DEPUTY PRESIDENT: No.

PN302

MR SKENE: And what we would do is we would contact the employees by telephone and inform them of the order and its terms and then require them to attend work and we would seek the co-operation of the CFMEU and the CEPU in doing that.

PN303

THE DEPUTY PRESIDENT: Do you have contact details? I assume you would have.

PN304

MR SKENE: Of the employees?

PN305

THE DEPUTY PRESIDENT: Yes.

PN306

MR SKENE: Yes, we do.

PN307

THE DEPUTY PRESIDENT: I assume you would have.

PN308

MR SKENE: Yes, we do.

PN309

THE DEPUTY PRESIDENT: As a matter of ordinary employment practice, yes.

PN310

MR SKENE: Indeed.

PN311

THE DEPUTY PRESIDENT: All right, so we add a 6.6 which is that Grocon and the contractors listed in annexure A shall contact each employee.

PN312

MR SKENE: In respect of Saturday and - each employee required to perform work on Saturday or Sunday in respect of that work.

PN313

THE DEPUTY PRESIDENT: And if no contact is made the order will have no application to that employee.

PN314

MR SKENE: Until they get notice of it on the noticeboard, your Honour.

PN315

THE DEPUTY PRESIDENT: Yes.

PN316

MR SKENE: And that date and time.

PN317

THE DEPUTY PRESIDENT: I think it is important that employees be notified.

PN318

MR SKENE: Yes indeed and that date and time for the placing on the noticeboard.

PN319

THE DEPUTY PRESIDENT: Yes.

PN320

MR SKENE: That could be Monday.

PN321

THE DEPUTY PRESIDENT: Let us go over that again. What are proposing for contact of employees? Say it slowly because I had a vers on and I think you had a version and they weren't necessarily the same so - - -

PN322

MR SKENE: All right. I think there are two issues, your Honour, the first is in relation to - well - - -

PN323

THE DEPUTY PRESIDENT: Could I perhaps make a suggestion.

PN324

MR SKENE: Yes.

PN325

THE DEPUTY PRESIDENT: I will say - I will make a suggestion and you comment on it. My suggestion would be this: That the order - the interim order will have no effect with respect to individual employees of Grocon or the contractors listed in annexure A unless and until each employee is contacted by telephone by Grocon or those contractors - yes, by Grocon or the contractors listed in annexure A, the terms of the order is read to them, and a copy is offered to be made available immediately on request. All right? Do you have a comment to make about that?

PN326

MR SKENE: Your Honour, we would content - - -

PN327

THE DEPUTY PRESIDENT: Do you have a difficulty with that or not?

PN328

MR SKENE: Yes, your Honour, only so far as if that were the process - - -

PN329

THE DEPUTY PRESIDENT: Yes.

PN330

MR SKENE: - - - between and Monday.

PN331

THE DEPUTY PRESIDENT: Yes. Yes, or Tuesday.

PN332

MR SKENE: We would be content with that and then on - - -

PN333

THE DEPUTY PRESIDENT: I see.

PN334

MR SKENE: And then on Monday - - -

PN335

THE DEPUTY PRESIDENT: Yes.

PN336

MR SKENE: - - - Monday we are able to inform employees in accordance with what is set out in accordance with paragraph 6.5, so when they arrive at work on the Tuesday - - -

PN337

THE DEPUTY PRESIDENT: I see, it is then - - -

PN338

MR SKENE: - - - we don't have to go round to - - -

PN339

THE DEPUTY PRESIDENT: No.

PN340

MR SKENE: - - - 130 or 300 people.

PN341

THE DEPUTY PRESIDENT: I understand.

PN342

MR SKENE: That is the first comment. The second comment is, would it be possible to include some words - I think you said, contacted by phone.

PN343

THE DEPUTY PRESIDENT: Yes.

PN344

MR SKENE: It may be that other means of informing them, if possible, in person, for example. So can we say by phone or otherwise, or by phone, in person or otherwise. Something that gives flexibility so it can be done other than by telephone.

PN345

THE DEPUTY PRESIDENT: Sure, all right. Actually, have you finished with that point.

PN346

MR SKENE: Yes, your Honour.

PN347

THE DEPUTY PRESIDENT: Mr Maddison, do you have anything to say on that?

PN348

MR MADDISON: I was going to say one thing generally about the weekend, your Honour.

PN349

THE DEPUTY PRESIDENT: Yes.

PN350

MR MADDISON: That is, it - and I wasn't here privy to the evidence, obviously, so I am not sure what was put, but, your Honour, it is a weekend and people are not - it is not as if it is a week day where - unless they are sick or whatever, they do have to - an obligation on them to work. My understanding pursuant to the award that it is not an obligation that employees must work overtime. There is an expectation for reasonable overtime. My concern that - it may be, given the current form, that the order that is being sought or suggested, that somebody might be called up.

PN351

They have been told about the order and they are coming into work and they may have a reasonable excuse or they were never going to work on the weekend anyway. And they may be placed in breach of a 127 order when the company, really other than the order, had no legal right to compel them to work. And we say that that is probably not a result which would be contemplated by this section and shouldn't be used in that way, your Honour. We say Tuesday comes into a different category, but a weekend, your Honour - - -

PN352

THE DEPUTY PRESIDENT: Right, thank you. Mr Skene?

PN353

MR SKENE: Only a brief response, your Honour. As has been stated this overtime is scheduled and its employees who were aware before today that they would be working and it is those employees we will be contacting. And in any event the order - - -

PN354

THE DEPUTY PRESIDENT: So you have a legal right to direct overtime, do you?

PN355

MR SKENE: Your Honour, we have a legal right to expect that industrial action not occur

PN356

THE DEPUTY PRESIDENT: I see.

PN357

MR SKENE: Now, if an employee is scheduled to perform overtime - - -

PN358

THE DEPUTY PRESIDENT: Yes.

PN359

MR SKENE: - - - and as a result of the conduct today they are not, then they are engaging in industrial action in breach of the order. If they are sick they are not engaging in industrial action. So all we are seeking to do is that industrial action stop or not occur and not to impose any other requirements in the way that Mr Maddison says.

PN360

THE DEPUTY PRESIDENT: Right. I have got the CFMEU agreement in front of me. Which clause deals with overtime?

PN361

MR SKENE: Your Honour, it is complicated. It is clause - it is quite complicated, your Honour. It is clause 7.3, it sets out certain provisions concerning the hours of work and I think clause 8 is overtime and that includes the right to require reasonable overtime. So - - -

PN362

THE DEPUTY PRESIDENT: Clause which?

PN363

MR SKENE: I think, your Honour, if you look at clause 7.3(f) it provides certain work that can be performed outside normal working hours without the consent of the union.

PN364

THE DEPUTY PRESIDENT:

PN365

Employees who accept an offer of weekend overtime will be obliged to attend. However, employees through extraordinary circumstances may find themselves unable to fulfil their commitment to attend site. Such employees will notify the company before the planned finishing time on Friday.

PN366

That is the clause that is operative, is it?

PN367

MR SKENE: Yes, your Honour.

PN368

THE DEPUTY PRESIDENT: Right and you say that there is a group of employees who have accepted an offer of weekend work and they are therefore obliged to attend. Is that - - -

PN369

MR SKENE: Yes, your Honour, consistent with those arrangements that you have outlined.

PN370

THE DEPUTY PRESIDENT: And the evidence I heard was enough to deal with that point, was it?

PN371

MR SKENE: Yes, your Honour, yes, there is evidence that weekend work was scheduled to occur. But, in any event, this is really a question about the form of the order.

PN372

THE DEPUTY PRESIDENT: Yes.

PN373

MR SKENE: And I mean even if your Honour were to express it in such terms as where an employee has accepted an offer of work or is scheduled to perform overtime on Saturday and Sunday - preface it with those words.

PN374

THE DEPUTY PRESIDENT: So, you are suggesting, are you, an amendment to the draft you provided which is in clause 4 - - -

PN375

MR SKENE: Your Honour, I think - well - - -

PN376

THE DEPUTY PRESIDENT: Is it - - -

PN377

MR SKENE: No, I don't think so, your Honour, I think it is really about service of the order under clause 6.

PN378

THE DEPUTY PRESIDENT: Yes, I see.

PN379

MR SKENE: And I think we just have two categories of people for service. The first category is those employees that are scheduled to work overtime and those employees can be notified in accordance with the form of words that your Honour outlined. And then there is other employees who are not due to return to work until Tuesday morning and those employees can be notified in accordance with what is currently clause 6.5.

PN380

THE DEPUTY PRESIDENT: I understand.

PN381

MR SKENE: Thank you, your Honour.

PN382

THE DEPUTY PRESIDENT: Anything else?

PN383

MR SKENE: No, your Honour.

PN384

THE DEPUTY PRESIDENT: Nothing for anybody? Thank you. We will adjourn briefly - I will adjourn briefly to - I am sorry, Mr Maddison, did you want to - - -

PN385

MR MADDISON: No, no, sorry, I was - - -

PN386

THE DEPUTY PRESIDENT: I will adjourn briefly to consider what has been put.

SHORT ADJOURNMENT [4.37pm]

RESUMED [5.15pm]

PN387

THE DEPUTY PRESIDENT: Having regard to the submissions put, the evidence lead and the documents filed, firstly, I am satisfied that the jurisdictional requirements set out in section 127(1) of the Act are met for the purposes of this application for an interim order. I am satisfied that industrial action is happening, is threatened, impending or probable. That the industrial action is in relation to work that is regulated by a certified agreement, in this case, three certified agreements as specified in the application and the grounds and that the applicant is a person who is - or persons who are - directly affected or likely to be directly affected by the industrial action.

PN388

Secondly, I am satisfied that as a matter of discretion an interim order should be issued to operate until 5 pm on Tuesday 29 June 2004 and a copy will be provided to the parties shortly. Thirdly, the matter will be listed for hearing in conference at 10.15 am on Tuesday 29 June 2004. Fourthly, I reserve the right to publish further reasons for decision. I think that is all we need to do today, is it not?

PN389

MR SKENE: Yes, your Honour, from my perspective, that is all.

PN390

THE DEPUTY PRESIDENT: On that basis, we adjourn then until 10.15 on 29 June 2004.

ADJOURNED ACCORDINGLY [5.18pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 FACSIMILE REPORT PN33
STEVEN EDWARD COKER, SWORN PN98
EXAMINATION-IN-CHIEF BY MR SKENE PN98
WITNESS WITHDREW PN175
EXHIBIT #S2 FILE NOTE FROM BENJAMIN CAMERON PN203