C2004/4356, Transcript of Proceedings [2004] AIRCTrans 3253 (19 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

C2004/4356

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by United KG Pty Ltd and Others for an order
to stop or prevent industrial action at the
Muja Power Station, Power House Road, Collie

BP2004/4394
BP2004/4398
BP2004/4399

APPLICATIONS TO PREVENT INITIATION OF
NEW BARGAINING PERIODS

Applications under section 170MWA(4) of the Act
by United KG Pty Ltd for orders to prevent the
initiation of a new bargaining period in BP2004/1310,
BP2004/1311 and BP2004/1312

BP2004/4395
BP2004/4396
BP2004/4397

APPLICATIONS FOR TERMINATION
OF BARGAINING PERIOD

Applications under section 170MW of the Act
by United KG Pty Ltd for orders to suspend or
terminate the bargaining period in BP2004/1311,
BP2004/1312 and BP2004/1310

PERTH

11.42 AM, MONDAY, 9 AUGUST 2004

MR J. BLACKBURN: I am instructed by Blake, Dawson, Waldron and seek leave to appear on behalf of the applicant in each of these matters.

PN1

MR L. EDMONDS: I appear on behalf of the Australian Manufacturing Workers' Union.

PN2

MR L. McLAUGHLAN: I appear on behalf of the CEPU. Sir, I am just wondering again whether legal counsel is appropriate for this hearing. In the past I believe United KGs has been represented by the Chamber of Commerce and I would have thought it would be appropriate for the arguments to be put before the Commission to be other than through legal counsel and as such would oppose legal counsel in this matter.

PN3

THE DEPUTY PRESIDENT: Mr McLaughlan, are you making any formal objection under the Act as such?

PN4

MR McLAUGHLAN: Well, yes, sir. We are saying that whether it is a matter of the law that is being argued here as opposed to a matter of industrial issue and we would say that it is an industrial issue that should be dealt with first and if there is a matter of law then that should be determined prior to counsel representing the company at this hearing.

PN5

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN6

MR BLACKBURN: Your Honour, might I know before I reply to that whether Mr Edmonds objects as well?

PN7

THE DEPUTY PRESIDENT: Yes. Certainly. Mr Edmonds?

PN8

MR EDMONDS: Yes, sir, I do, sir, object to legal counsel appearing, sir.

PN9

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Edmonds.

PN10

MR EDMONDS: Thank you.

PN11

THE DEPUTY PRESIDENT: Mr Blackburn?

PN12

MR BLACKBURN: Thank you, your Honour. On previous occasions Mr Edmonds has been good enough not to object. He, of course, is of counsel himself and Mr McLaughlan represents, I believe, perhaps one or two of the 120 or so employees that are currently on strike. However, as Mr Edmonds has objected as well there are several reasons why we say that United ought be permitted to be represented by counsel in this matter. Firstly, this is a matter of considerable public interest.

PN13

As your Honour is well aware these employees are engaged at the Muja and Kwinana Power Stations. The situation at both power stations has become critical. A number of units have gone down since the application was filed in the Commission. There is now a real risk of power cuts, both now and in the summer as a result of what happens now. Apart from the significance of the matters that are being dealt with there are also numerous legal issues. This is the first time, your Honour, that I'm aware that an application has been made under section 170MWA. I base that on the search of the Commission's web site where I put in the words 170MWA and had no responses at all. It is, as your Honour is aware, a relatively new section.

PN14

There are also questions of law in relation to whether the bargaining periods have in fact been terminated and that also raises questions of construction under I think it is 170V(b). There are also questions - - -

PN15

THE DEPUTY PRESIDENT: What section was that, Mr Blackburn?

PN16

MR BLACKBURN: Sorry, your Honour, it is 170MV(b) - 170MV, I think, little (b).

PN17

THE DEPUTY PRESIDENT: Thank you.

PN18

MR BLACKBURN: There are also a number of other matters which will need to be resolved, questions of law, throughout this case including, for example, whether the action is or isn't protected. That is relevant because clearly if the action is not protected that is a matter that you're able to take into consideration in determining the 127 applications. Clearly, as well if the 170MV(b) point is right then there are no bargaining periods in place and that is also a matter that is relevant to the exercise of your discretion under 170MWA.

PN19

So there are a number of complex and novel legal matters to be argued. It is also a matter of enormous significance both to my client and to the community. It is also a matter in which the chief protagonist, being the AMWU, is represented by counsel and while the CEPU is not represented by counsel Mr McLaughlan is a highly experienced organiser and he really, with due respect to his union, represents in this matter the tail, one or two out of 120 or so employees. So for all those reasons, your Honour, we think this is clearly a case in which counsel ought be permitted.

PN20

THE DEPUTY PRESIDENT: Thank you, Mr Blackburn. Mr Edmonds?

PN21

MR EDMONDS: Yes, sir, thank you, sir. It would appear that the application for the representation by counsel is being made on the basis of section 42(3)(b) on the basis that the subject matter of the proceedings make it certainly a desirable thing that the parties are represented by counsel. If I can just say, sir, in the first instance that the representation of the AMWU is being done by myself and I am of counsel, sir, but I don't appear in front of you in that capacity, sir, I appear in front of you with respect to section 42(4) of the Act in that I'm an officer of the organisation, sir, and as such I'm entitled to appear for the organisation under section 42(4), sir. So I don't need to seek leave in front of you today, sir.

PN22

What we would say in the circumstances, sir, is that while the consequences of this matter may be somewhat more serious the subject matter of these proceedings don't make it any more difficult than any other 127 application that is being brought in front of you in the past, sir, and indeed the applicant today has been ably represented by the CCI in those matters. I note that Mr Borlase is present today, sir, and he has been assisting the applicant in the proceedings to this point and I'm sure he is more than capable of running this application as well, sir, and to that extent, sir, we would object to leave being granted, sir, and say that the applicant should be represented either by Mr Pretsel or by Mr Borlase who have been acting for the applicant in all the proceedings in front of you in this matter before, sir.

PN23

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN24

MR McLAUGHLAN: Yes, sir. Again, I would concur with those comments of Mr Edmonds and say that whilst we've been before the Commission on a number of matters the company has been represented by Mr Borlase and we would see that it would be appropriate for a section 127 application to continue with that representation and therefore oppose counsel.

PN25

MR BLACKBURN: Your Honour, if I just - - -

PN26

THE DEPUTY PRESIDENT: Mr Blackburn, I am not sure it is necessary for you to respond any further. I would just like to clarify, do you seek leave to appear under section 42(3)(b)?

PN27

MR BLACKBURN: Yes. I apologise for that, your Honour. It is actually under 42(3)(b) and 42(3)(c). I made reference to legal issues that needed to be determined. It is not as Mr McLaughlan has said, just the 127 application, there is 170MWA which is in my knowledge the first such application to come before the Commission and there are questions of construction under 170MV(b) as well, but under both sections, your Honour.

PN28

THE DEPUTY PRESIDENT: Thank you. The Act gives the Commission power to grant leave to a counsel or solicitor, and I understand, Mr Blackburn, you would be seeking leave to appear as counsel. Is that correct?

PN29

MR BLACKBURN: Yes, your Honour.

PN30

THE DEPUTY PRESIDENT: As counsel. The Commission notes the submissions of Mr Edmonds and Mr McLaughlan, that the previous appearances in the Commission related to this matter have involved the CCI acting on behalf of the applicant. The Commission also notes the objection that the issues may not be sufficiently complex from a legal point of view as to require legal counsel, however, the Commission is mindful that the issues before it are indeed legally complex and it would therefore be not appropriate for leave to be denied.

PN31

However, the Commission reminds all present that the proceedings in the Commission are not intended under the Act to be excessively formal or technical or legalistic and would ask that that be borne in mind so that the hearing can proceed as informally as possible with a view to dealing expeditiously with the matters before the Commission. Leave is granted to Mr Blackburn to appear as counsel. Mr Blackburn?

PN32

MR BLACKBURN: Thank you, your Honour, and my client would be delighted if the matter could proceed expeditiously.

PN33

MR McLAUGHLAN: Sir - - -

PN34

THE DEPUTY PRESIDENT: Excuse me, Mr McLaughlan?

PN35

MR BLACKBURN: I wonder whether there is to be an application for an adjournment, is that - - -

PN36

MR McLAUGHLAN: Yes.

PN37

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN38

MR McLAUGHLAN: Yes, sir. Given the comments about the legal technicalities and given when we received the necessary paperwork, if that is to be the issue to continue on that basis I would seek an adjournment to allow for consultation and the need - sorry, because we may need to engage counsel with regards to the representation for the CEPU. I need to take further instructions on that.

PN39

THE DEPUTY PRESIDENT: Thank you. I will seek the view of Mr Edmonds on that first then, Mr Blackburn.

PN40

MR EDMONDS: Well, that certainly seems appropriate in the circumstances, sir. We do wish to seek an adjournment on other grounds, sir, and I wonder whether now is an appropriate time to ventilate those issues or whether we should deal with the issues one-by-one, sir.

PN41

THE DEPUTY PRESIDENT: If you submit that there should be an adjournment then perhaps it would be useful to ventilate those other issues as well now.

PN42

MR EDMONDS: Thank you, sir, yes.

PN43

THE DEPUTY PRESIDENT: So that everything can come out and be dealt with at once, Mr Edmonds.

PN44

MR EDMONDS: Yes, sir. Certainly, sir. An adjournment of these proceedings is sought for a number of reasons by the AMWU, sir. First and foremost Mr Saunders, as I have previously advised the Commission, is unavailable today, sir, he is in Darwin and will not be available until Wednesday to be present at these proceedings. Mr Saunders has had conduct of this matter for the AMWU to this point, he has been assisted by Mr Currie but he has certainly had the primary conduct of this matter to this point and you would note of course, sir, that in a number of the conferences that have been held in front of the Commission to this point in these matters the Commission has actually issued orders at the request of the applicant, has issued orders that Mr Saunders be present so - - -

PN45

THE DEPUTY PRESIDENT: Did you say "orders," Mr Edmonds?

PN46

MR EDMONDS: Sorry, has certainly sought a direction from the Commission that Mr Saunders be present at conference proceedings in front of the Commission in the past and we certainly think it would be inconsistent for the applicant to say in those circumstances that they felt that Mr Saunders was pivotal to the resolution of the matters and sought directions from the Commission that he be present at conference proceedings yet now appearing in front of you today, sir, and posit the point of view that Mr Saunders is not necessary for the able defence of this matter and it is not necessary that he be present in order for the AMWU to properly conduct the proceedings today.

PN47

So that would appear to be an inconsistent argument to say in one instance that he should be directed to appear in front of the Commission for the purposes of the conference proceedings and then now in front of you today, sir, say that he is not pivotal to the resolution of this matter for the purposes of the AMWU. Unfortunately, sir, he is in Darwin and that was a matter he was unable to avoid and it is a matter of some importance that he is in Darwin for, sir, and it is certainly not a recreational issue or anything like that.

PN48

So that is the first ground upon which an adjournment is sought, sir. Secondly, sir, I am advised that a number of workers are still yet to be served with the application and the notice of listing of these proceedings as of this morning. I am further advised, sir, that at least one of the workers who is present today, Mr Chapman, was served with three copies of the notice of listing but has never been served with a copy of the application by the applicant.

PN49

Now, in circumstances where in relation to these 127 orders the applicant seeks to bind the employees and there is some considerable number of employees, I believe somewhere in the region of about 120, sir, in circumstances where the applicant seeks to bind the employees to the order they've got an obligation under the rules of the Commission to effectively serve them with not only a copy of the application but also a copy of the notice of listing, so that those parties have got an opportunity to be present in front of you today, sir.

PN50

We would say in the circumstances, sir, that not all of those workers have been served and that is certainly our advice and we would say further, sir, that while some of them have been served with three copies of the notice of listing there are certainly some of them that haven't been served with a copy of the application. So in those circumstances, sir, those workers are denied procedural fairness in relation to their defence of the matter, sir.

PN51

Now, it may well be said by the applicant that the AMWU is in the position to represent those workers and that may well be true, sir, and indeed we do have that capacity under section 42(7)(b) of the Act, sir, and it is true that we do have the capacity to represent those workers. However, in those circumstances, sir, I would have to seek instructions from those particular workers over those issues - - -

PN52

THE DEPUTY PRESIDENT: Excuse me, what section was that again?

PN53

MR EDMONDS: 42(7)(b), sir.

PN54

THE DEPUTY PRESIDENT: Thank you.

PN55

MR EDMONDS: That empowers an officer of an organisation to appear on behalf of a member but you will note, sir, it says, "may appear on their behalf" not "shall appear on their behalf." Certainly, sir, if I haven't had an opportunity to discuss the issues with them, sir, then there is certainly a circumstance where I may not be in the best position to represent them in relation to those issues. Further, sir, it does of course raise issues of conflict of interest.

PN56

My primary role here, sir, is to represent the AMWU and it may very well be that there is a conflict of interest between the representation of the organisation and the representation of the members and certainly in those circumstances, sir, I don't seek to represent those workers in front of you today, sir, until I've had an opportunity to take instructions from them and to discuss any potential conflict of interest with them. Now, those workers who were served on the weekend, sir - - -

PN57

THE DEPUTY PRESIDENT: Which workers were you referring to there? Are you saying some of the workers or all of the workers?

PN58

MR EDMONDS: Well, certainly there are some 120 workers, I believe, against whom orders are sought, sir. I'm sorry, I haven't counted up the precise number of orders but they're certainly attached in the schedule to the section 127 application, sir, and that goes from page 10 to page 23. There are some considerable number of workers listed in that application, sir. I certainly haven't had an opportunity to speak to all or indeed to any of those workers, sir, and they were indeed served on the weekend with a copy of the notice of listing and they certainly haven't had the opportunity to seek legal advice in relation to those issues.

PN59

As you would be well aware, sir, the issuing of section 127 orders is a serious matter and it is a matter for which they should be represented, sir, and certainly to proceed today, sir, would deny those workers the opportunity to be heard in relation to those issues. You will also note, sir, that the vast majority of those workers live in or around Collie which again makes it difficult to get here today for these proceedings, sir.

PN60

What we would also ask, sir, is that not only should these proceedings be adjourned off, sir, but they should be re-listed for hearing in Collie to enable the vast majority of respondents, there are some 120 of them, and that is the vast majority of them, sir, to actually be present at the proceedings and to give their point of view.

PN61

So, in those circumstances, sir, we think that this matter should be adjourned off to give those workers the opportunity to discuss the matter with the union so that I can discuss the legal issues with them. They can decide if they need to seek alternative counsel, so that they can seek that alternative counsel, so they've got the opportunity to instruct alternative counsel and so that they can be represented in relation to these matters.

PN62

I am advised, sir, that as of this morning not all of those workers had been served. I'm advised that in at least one instance a respondent to the proposed order was asked to serve other respondents, was just handed envelopes and asked to serve other respondents which doesn't satisfy the applicant's obligations and I'm instructed, sir, that for at least one worker, sir, and I don't know how many others, for at least one worker he was served with three copies of the notice of listing and no copies of the application.

PN63

So we would say, sir, in those circumstances, sir, to proceed today would deny those workers procedural fairness. We would certainly also say, sir, to proceed today would deny the AMWU procedural fairness in that we're unable to have Mr Saunders present. I do have a case that I would like to hand up to the Commission, sir, if I could. That is a case, sir, of the AFMEPKIU v Quality Maintenance Services, sir, C2004/4920. It is a decision issued by Senior Deputy President Williams on an appeal from Senior Deputy Acton, sir.

PN64

The statement that really needs to be considered in these circumstances, sir, starts at paragraph 11 of that decision. There is no doubt that the Commission, sir, in exercising its powers under section 127 of the Act is, as a matter of law, required to act in a judicial manner and to apply the common law principles of natural justice. The Commission is, however, an Industrial Relations Tribunal and the practice is quite often to act expeditiously and effectively in the exercise of its functions.

PN65

So the whole issue of natural justice and procedural fairness, it depends upon the individual's circumstances of the case and it was stated by the High Court, sir, the critical question in most cases is not whether the principles of natural justice apply it is the issue of their duty to act fairly and what that requires in the circumstances of the particular case. Now, section 127(3) of the Act requires the Commission to hear and determine a section 127 order as quickly as practicable.

PN66

THE DEPUTY PRESIDENT: You're referring now to paragraph 12?

PN67

MR EDMONDS: To paragraph 12, sir. But the need to hear it as quickly and as practicable it doesn't override the requirement to afford procedural fairness to a party against whom an order is to be made and that procedural fairness, sir, is a party - it is more than just the AMWU and the CEPU, sir, it is also the individual workers against whom an order is sought. If we can move onto paragraph 13, sir.

PN68

As a general rule such a party has a right to be given a full and fair opportunity to be heard in relation to the making of such an order and a denial of that right may amount to a denial of natural justice. In certain circumstances the granting of an adjournment is a mechanism by which such an opportunity may be afforded to a party. The Commission's duty in this respect, however, is to ensure that a party has a reasonable opportunity to present its case, it does not have a duty to ensure that the party takes either advantage or the best advantage of that opportunity.

PN69

What we would say in these circumstances, sir, is certainly the 120 workers against whom an order is sought, some of whom were still being served this morning, sir, have not had any opportunity to appear in front of you today, sir, they haven't had an opportunity to seek advice, haven't had an opportunity to instruct counsel in relation to these issues and they certainly haven't been given any opportunity to present its case, not even the best opportunity. It certainly hasn't been given a reasonable opportunity in these circumstances, sir, so on that basis, sir, we would say that an adjournment should be granted in accordance with this decision.

PN70

The issue of, I suppose, the haste upon which this matter had to be dealt with, sir, is illustrated by the application itself. The application itself, sir, refers to a series of notices that are dated between 29 June and 12 July.

PN71

THE DEPUTY PRESIDENT: Mr Edmonds, are you dealing with the issue of an adjournment?

PN72

MR EDMONDS: Yes, sir, I am, sir, but in order to deal with the issue of an adjournment, sir, the question of the haste in which this matter needs to be dealt with also needs to be considered. The substance of the 127 application, indeed the other applications, sir, deals with some notices of protected action that were filed between 29 June and 12 July, so the last of them some four weeks ago, sir, four to five weeks ago.

PN73

Now, the basis upon which certainly a substantial amount of the application is brought is on the basis of an alleged notice that has been given pursuant to 170MV(b) of the Act, which was allegedly given on 22 July 2004 by the unions to the company, whereas the company alleges is - - -

PN74

THE DEPUTY PRESIDENT: 22 July?

PN75

MR EDMONDS: 22 July, sir. It is alleged by the company, sir, and certainly not conceded, but it is alleged by the company that the notice was given on 22 July and that that offending notice essentially said that the union had no intention of reaching an agreement in the Federal jurisdiction. We don't concede that that notice was given at all.

PN76

What we would say, sir, is that there has certainly been some 17 or 18 days since that alleged notice was given to the employer and this application has not been filed, sir, until 6 August, sir, which I believe might have been Friday.

PN77

So, after some 16 days or so, sir, of having this matter sitting in front of them, they have suddenly decided that after 16 days that all of a sudden this is desperately urgent and this needs to dealt with immediately but nothing has changed in that 16 days. And we certainly heard that nothing has changed in that 16 days which would lead us to think that there is a sudden crisis which presented itself on Friday or on Monday. The offending paragraphs of that correspondence that was given on 22 July, have been in front of them for some time.

PN78

So, sir, if there is any urgency of the matter, then it could have been listed on 23 July or 24 July or application should have been made on those days if it was such an urgent matter. But the applicant in these circumstances has not acted in a diligent fashion, has certainly not put any correspondence to the AMWU with respect to that particular notice. It has certainly not sought a return to work on the basis that that notice amounted to a notice pursuant to 170MVB of the Act. So in those circumstances, sir, we would say that it is clearly not urgent to them because they have sat on this matter for some 2-and-a-half weeks prior to actually bringing this application.

PN79

So it is clearly not urgent to them so there would be no real prejudice to them, sir, as a result of granting an adjournment today. The only prejudice to them, sir, would be that it would put the AMWU, the CEPU and the workers who again an order is sought, the only prejudice against the applicant is that those parties would have a better opportunity to prepare their case and to present its best case in front of you, sir. We would say that a reasonable opportunity has not been given to all the parties against whom an order is sought and as such, an adjournment should be granted today, sir, to enable the workers to seek some legal advice. To enable Mr Saunders to be present. To enable the CEPU to seek legal advice in relation to the issues raised in the application, sir. So that is essentially my submissions for an adjournment, sir. Unless there are any further questions, sir.

PN80

THE DEPUTY PRESIDENT: Thank you, Mr Edmonds.

PN81

MR EDMONDS: Thank you, sir.

PN82

THE DEPUTY PRESIDENT: I would seek the view of Mr Blackburn?

PN83

MR BLACKBURN: Yes, thank you, your Honour. Your Honour, I begin by just explaining that what we seek out of today's proceeding, recognising that there are a number of witnesses to be called on behalf of the applicant in relation to, not only the 127 applications but also the 170MW(A) and 170MW applications. And I assume there will be witnesses on behalf of the union employees. So we don't expect the proceedings could conclude today.

PN84

Realistically then, given the urgency of the situation which I will explain in a moment, our primary objective today is to obtain interim 127 orders for an immediate return to work. Now, the reason why this matter has been brought on now, and I will deal with one of the points that my friend dealt with in the latter part of his submissions, first. He said that the 127 orders related to industrial action that was being taken pursuant to notices filed on about 12 July and that we had effectively sat on our hands since then. And to the extent that the fax of 27 July was relied upon as bringing the bargaining period to an end, we had sat on our hands since then and therefore, there was obviously no urgency in this matter because we could have taken this matter several weeks ago.

PN85

The reason why the application has come on at this time, your Honour, is because of the deteriorating state of affairs at the Kwinana and the Muja Power Stations. It is simply wrong to assert, as my friend has done, that nothing has changed in the last 16 days. I would hand up, your Honour, two letters. And these will be proved in evidence a little later because they are written by Mr Doug Aberle, who is the General Manager Generation at Western Power and he will be a witness later in the proceedings. Two letters, dated 3 August.

PN86

Now, as your Honour may be aware, or will be aware from the previous 170MA proceedings, there are six generator units at the Muja Power Station and three of those are currently dismantled, part way through their maintenance programs. There are - sorry, there are eight at Muja and three of those are currently dismantled part way through their maintenance programs. There are six generators at Kwinana. Now, the first letter that Mr Aberle wrote to Mr Burman, who is my client's Regional General Manager, was on 3 August. It refers to the current industrial dispute and I believe this letter was sent, your Honour, after the workers had rejected your recommendation to return to work.

PN87

Mr Aberle says to Mr Burman, he refers to the current industrial dispute and he says:

PN88

From Western Power's perspective, this issue has now reached a critical stage where by the amount of power available for the South West interconnected system will bring on the threat of rotational load shedding...

PN89

Load shedding, your Honour, is the industry euphemism for black outs:

PN90

...which will have an effect on both business and residential customers.

PN91

Mr Aberle says:

PN92

Critical maintenance is required on K5 and K6.

PN93

K6 at that time had not gone down. K5 had gone down on 30 July:

PN94

On top of having units M2, M3 and M4 currently out of service.

PN95

And, your Honour, if a unit begins with, M, that is a Muja unit and a unit beginning - - -

PN96

THE DEPUTY PRESIDENT: So what you just added was not actually in the letter, is that correct?

PN97

MR BLACKBURN: Yes, your Honour. The letter as at 3 August, dated 3 August, said that critical maintenance was required on K5 and K6. At the time of writing, K5 had gone down on 30 July and therefore needed to be brought back into operation. K6, it was thought, would go down at any time and I am advised that K6 has gone down today. On top of having units M2, M3 and M4, they are at Muja, currently out of service.

PN98

The dispute has reached the stage where there is no float in our outage program to complete critical maintenance work and this will now impinge on having appropriate loads for the summer peak. The dispute must be resolved as a matter or urgency.

PN99

The second letter came later in the day to provide a little more by way of explanation where Mr Aberle says to Mr Burman:

PN100

Further to my letter to you this morning explaining that power supplies, both immediately and next summer are under threat if there is not an immediate return to work of the work force, I provide the following additional information on the impacts of load shedding.

PN101

Then three paragraphs down, the third paragraph:

PN102

If there is a large enough imbalance between the load and the available generation...

PN103

between supply and demand, in other words:

PN104

...load shedding will occur in order to bring the power system back into a stable state.

PN105

And the second last paragraph on that page:

PN106

There is a general philosophy of trying to first shed load that has the least impact on health and safety ...(reads)... accident in 2003 where the traffic lights were not operating due to power supplies not being available.

PN107

And there will be evidence about that, your Honour:

PN108

In conclusion, there is a very real threat to the health and well being of the West Australian community should there not be an immediate return to work of your work force at both Muja and Kwinana Power Stations. We request that you immediately lodge section 170MW and section 127 applications in the AIRC.

PN109

So it was the advice from Western Power that the situation had deteriorated and had now become critical. Your Honour, since those letters were written, three more generators have gone down. K6, which is referred to in that letter, went down today, I am advice. K1, which was not referred in that letter, went down unexpectedly on 8 August. A fourth generator at Kwinana, K4, is now critical and expected to go down at any time. In addition, there has been a further loss of a hundred megawatts at Worsley, again over the weekend, I believe.

PN110

THE DEPUTY PRESIDENT: Can you repeat that?

PN111

MR BLACKBURN: A further loss of a hundred megawatts at Worsley, your Honour. Your Honour, the result is that when K4 goes down, which is imminent and Western Power are not making these things up, they foreshadowed that K6 would go down and it has. And in fact, K1 has gone down on top of K6. And K4 how now become critical. So these generators are going down and there is only six at Kwinana. Three have gone already and a fourth is on its way.

PN112

When that fourth one goes down, it should be in the next few days I am advised, it could go down at any time, Western Power would have lost a total of 956 megawatts from its system. It will then have a remaining capacity of 2441 megawatts. That assumes that there are no gas restrictions and Western Power has enough gas to be able to fire all of its gas turbines. If there are gas restrictions the situation is even worse. But let us assume there is enough gas, once K4 goes down, there will be a remaining capacity of 2441 megawatts.

PN113

Your Honour, in July demand peaked at 2418 megawatts. Current demands are running at over 23-hundred megawatts. So your Honour can see that we are, in fact, on the cusp. It will only take one more generator on top of K4 to cause load shedding. My friend says that nothing has happened in the last 22 days, or 16 days. He is ill informed. Generators are going down as we speak. Two or three have gone down over the weekend. Another one is on its way. That is what has prompted these applications, and of course, the rejection by the employees on 3 August of your recommendation to return to work.

PN114

In terms of the other matters that have been put, your Honour, the argument that, for example, that the employees need to brief counsel and Mr McLaughlan's union may need to brief counsel and so forth and the AMWU may need time to prepare, those arguments have to be considered in the context of, as I have indicated, what it is that we seek to achieve today which is the interim 127 order.

PN115

The cases dealing with the question of adjournments in respect of section 127 are very clear and I am surprised that Mr Edmonds tendered the case he did. And I will come to that one in a moment because that - - -

PN116

THE DEPUTY PRESIDENT: Perhaps, Mr Blackburn, before you continue, do you wish to formally tender the two letters?

PN117

MR BLACKBURN: Yes, please, your Honour. They will reappear again in the affidavit of Mr Aberle but, yes, if I could have them marked at this point.

PN118

THE DEPUTY PRESIDENT: Mr Edmonds, in relation to the tendering of these exhibits, do you have any submission?

PN119

MR EDMONDS: Well, I mean, they can certainly be tendered, sir, but they have got no weight until they have been put to the writer, sir.

PN120

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN121

MR McLAUGHLAN: Sir, I don't oppose them being tendered. It is certainly the first we have seem and I have had no opportunity to confirm any of the allegations made in it or any of the information given on those letters.

PN122

THE DEPUTY PRESIDENT: Thank you.

EXHIBIT #1 SHORT LETTER

EXHIBIT #2 TWO PAGE LETTER

PN123

THE DEPUTY PRESIDENT: Mr Blackburn?

PN124

MR BLACKBURN: Your Honour.

PN125

THE DEPUTY PRESIDENT: Please continue.

PN126

MR BLACKBURN: Thank you, your Honour. Your Honour, I will hand up, if I may, three cases in addition to the case that my friend has handed up. And they are a decision of Commissioner Richards, dated 5 August 2004. It is useful because it summarises the principles and it is a very recent decision, in P&O Ports Limited v Maritime Union of Australia, PR950434. A decision of - well, the decision of Senior Deputy President Williams has already been handed to you and I will come to that. A decision of Senior Deputy President Kaufman in Australian Shar Pty Ltd v AMWU, PR934944 and decision of Vice President Lawler in United Collieries v CFMEU, PR925399.

PN127

THE DEPUTY PRESIDENT: Is this all in relation to the adjournment?

PN128

MR BLACKBURN: Yes, it is, your Honour. When we go to these cases in a moment, your Honour, I would ask that you bear in mind that these applications were served on Friday. There is an issue as to the manner of service in respect of some employees and I will come to that a little later on. We will actually be seeking an order for substitute of service in respect of one group of employees because a number were served personally and a number were served by the applications being left at their front door because they weren't home. And I will be seeking orders of substituted service later on in relation to that latter group.

PN129

There are two employees who weren't served at all and we won't be pressing the interim order applications in respect of those but I will deal with that issue later. But the point is that the employees were served in one for or another with the exception of the two, on Friday. The Union was served on Friday so they have had over two days, 2-and-a-half days, in which to address these matters. I appreciate it has been a weekend. I am advised that they were due to meet this morning but that the union rang around over the weekend, the AMWU rang around over the weekend and cancelled that meeting. So they are not meeting this morning. I believe the meeting was scheduled for 9am.

PN130

Now, and so they have had over two days. The applications being filed on Friday and it now being midday on Monday. The first decision, your Honour, a decision of Commissioner Richards, dated 5 August and as I say, provided to you for its recency. In this case, the application was lodged at 10.17. That appears in the first paragraph. In the third paragraph, the Commissioner heard the application at 12.30, two and a quarter hours after it was lodged. Issued an order and provided a summary decision in transcript.

PN131

In the fifth paragraph, it is noted that Mr Perry for the Maritime Union requested the application be adjourned. He did so on the basis that he was unfamiliar with the issues as he had been absent from the work place and had not been able to contact any of the other relevant MUA officials in relation to the application. In the seventh paragraph, the Commission considered the application for the adjournment. The Commissioner said:

PN132

The Commission has before it an application that prima facie is urgent. It does not have a persuasive submission before it as to the reason why no relevant officials of the MUA were available, let alone contactable.

PN133

In this case, of course, we have Mr Curry in the court, and Mr Currie has had, as your Honour will appreciate from the section 170NA conferences, as much of an involvement in these matters as Mr Saunders. And that would also appear in the evidence of Mr David Pretsel who will attest to Mr Currie's involvement in the various negotiations which have occurred at Muja.

PN134

Turning back to paragraph 8 of the decision:

PN135

Mr Perry on his own submission, was notified of the application nearly 2 hours before the hearing.

PN136

So this is a case where the union was notified, given only 2 hours notice and still the application for an adjournment, as your Honour will see, is ultimately refused. He was permitted an additional 20 minutes shortly after the commencement to contact any relevant MUA officials. After the expiry of such time, the following exchange took place. Mr Perry said:

PN137

Well, I can't find anybody. I have tried all our National officials, I have tried our branch officials ...(reads)...my limited knowledge of it and my limited time to prepare.

PN138

And the Commissioner then said:

PN139

Yes, I appreciate your circumstances as you put them to me, Mr Perry. I am not convinced however on the explanation that you have provided to me that there is no representative capacity available anywhere from the MUA today what so ever. I am going to proceed to hear this matter.

PN140

Now of course today, your Honour, we have the two advocates who regularly represent the AMWU and the CEPU appearing again. They are highly experienced advocates, they are the people who regularly represent those unions in these matters. Commissioner Richards then in paragraph 9 referred to the decision of Senior Deputy President Williams that my friend handed up. And I was rather surprised that he did. In paragraph 9, Commissioner Richards says:

PN141

The Commissioner notes a recent decision in Quality Maintenance Services in which his Honour, Senior Deputy President Williams, rejected ...(reads)... does not override the requirement to afford a procedural fairness to a party against whom an order is to be made.

PN142

His Honour, Senior Deputy President Williams, I missed a paragraph, then went on and said:

PN143

The AMWUs facsimile to the Commission stated that the basis upon which is sought an adjournment was that it was meeting with QMS...

PN144

being the employer:

PN145

...that morning. It does not state that such meeting was in relation to the 127 application ...(reads)... to proceed with the hearing of the application in the absence of the AMWU.

PN146

And Commissioner Richards then notes in paragraph 11 that in that matter which Senior Deputy President Williams dealt with:

PN147

The AMWU had one-and-a-half hours notice of the hearing and had made a formal written request on various grounds for an adjournment. When the matter was heard, they made no appearance and an order was issued in the absence of that organisation.

PN148

So the matter before Deputy President Williams that my friend has tendered was a case in which the AMWU were given one-and-a-half hours notice of hearing and applied for an adjournment and still the Commission proceeded and Senior Deputy President Williams rejected an application for a stay order against that decision to proceed and make the section 127 application. On one-and-a-half hours notice.

PN149

Commissioner Richards then goes on in paragraph 12 to say:

PN150

Having regard to his Honour's decision, as well as the general principle espoused by Vice President Lawler in United Collieries, the Commission as presently constituted found there was no basis to the MUAs request for an adjournment to be persuasive.

PN151

The MUA indicated that no relevant official could be contacted and the representative who was before it had no knowledge of the circumstance of the application. No issue was raised in respect of legal representation. Prima facie, the Commission had before it an urgent matter. Consequently and in all the circumstances, the Commission proceeded to hear evidence in relation to the application.

PN152

So there is one case, a very recent case, which the union had 2 hours notice and the application for a section 127, for an adjournment of a section 127 application was rejected. It also, as I have indicated, refers to the decision of Senior Deputy President Williams, a matter in which a union had one-and-a-half hours notice, and again, the application for an adjournment was rejected. There was reference also to the decision by Commissioner Richards, he referred to the decision of Vice President Lawler in United Collieries and the principle espoused in that decision. The matter appears in PR925399 at paragraph 10 where Vice President Lawler says:

PN153

The remedy provided by section 127 is a remedy that will often prove futile if an order under section 127(1) ...(reads)... to give evidence by telephone if it is impracticable to bring them to the Commission.

PN154

So that was the principle that was espoused in relation to section 127, that it is a section that provides a remedy that will often prove futile if the order cannot be obtained speedily. And that principle was also endorsed by Senior Deputy President Kaufman in Australian Shar Pty Ltd, PR934944. In this case, at paragraph 32, the Senior Deputy President notes that Mr Addison representing the AMWU in that matter, mid way, about 5 lines down, paragraph 32, submitted that he had had no instruction with regards to the new allegation. And a bit further on, he would seek to call rebuttal evidence but was not able to do so at that time.

PN155

Paragraph 33, the only witness to give evidence was Mr Des Dalton, the Operation Manager for the company. At paragraph 34, it said Mr Addison was unavailable, that is, the AMWU representative:

PN156

...was unavailable to usefully cross-examine Mr Dalton on this issue because he had been unable to obtain instructions.

PN157

I am not sure whether that should read: Mr Addison was unable to usefully cross-examine but the effect is the same. At paragraph 35:

PN158

At the conclusion of the hearing, I indicated that I would make an order substantially in the terms sought ...(reads)... he wished to lead evidence to rebut that given by Mr Dalton.

PN159

so the union would say, we want to call rebuttal evidence and his Honour proceeded to make the order anyway. But paragraph 37, he said:

PN160

When announcing my decision, I refer to the decision of Vice President Lawler in United Collieries.

PN161

He cites the passage and then says:

PN162

I respectfully adopt that passage.

PN163

So, your Honour, the authorities are clear on this question of the approach to be taken to applications seeking to adjourn section 127 matters. The authorities include the very authority that my friend relied upon. Another point which distinguishes this matter and makes those authorities even more cogent is that since a number of those authorities, the exception being the decision of Commissioner Richards, but the matter that was at the heart of the stay application that Senior Deputy President Williams had to deal with, the matter before Senior Deputy President Kaufman, the matter before Vice President Lawler, all proceeded the introduction in section 127 of section 127(3)A.

PN164

In those cases final section 127 orders were made. The order that we are seeking today is an interim order. Since that time the Act has been amended, as your Honour is well aware to expressly provide under 127(3)A that the Commission may make an interim order and 127(3)B that an interim order made under the sub-section ceases to have effect once the application is determined. So, given that what we are asking your Honour for is an interim order, much in the way of an interlocutory order, the principle in those cases becomes even more cogent. Now, as I have indicated, your Honour, in this matter the employees and the union have had much more than an hour and a half or 2 hours in which to consider the matter.

PN165

They are not faced with a permanent section 127 order today. The order we seek today is an interim order. The Commission has clearly indicated its position in relation to the need to proceed with these matters expeditiously. The matter has become urgent for the reasons that I have outlined and going back to the Western Power correspondence and what has occurred over the weekend. So, there is a very strong case, and we say an irrebuttable case, for this matter to proceed. Your Honour, there are a couple of other issues. One is, of course, the matter of service, and I will deal with that now. Your Honour, I believe my instructing solicitor sent you today a letter in relation to service with some schedules attached?

PN166

THE DEPUTY PRESIDENT: Yes.

PN167

MR BLACKBURN: Your Honour, you can see from this letter that it confirms that service was made on the AMWU and the CEPU and it also indicates on the second page that attachment A contains the names of employees that were personally served with a copy of the section 127 application and notice of listing. Alternatively, copies of the documents were handed to an individual apparently above the age of 15 years at the employee's residence which is, of course, a manner of service in compliance with the rules. Rule 72. So, those people in attachment A were, on my instructions, personally served in accordance with rule 72. And attachment A contains some 69 names.

PN168

I note, your Honour, that Mr Chapman, who was referred to by my friend is listed at number 8 in attachment A. So, there may be an issue with regard to him. And I have no instructions yet as to what has occurred there or whether in fact we agree with what my friend has put. Attachment B, your Honour, contains the names of a further 49 employees where no-one answered the door at the residence and a copy of the notice was left at the front door. Now that, of course, is not a manner of service that is in accordance with the rules and so we will be, in a moment, seeking an order for substituted service to in effect wave the requirement to personally serve those people or to serve those people in accordance with rule 72.

PN169

Attachment C, your Honour, contains the names of employees that were not served with a copy of the documents at all. There are two employees. A Wayne Clifford Loftus and a James Owen Roberts. Excuse me, your Honour. Your Honour, I am advised that those two employees have, in fact, been personally served now, though the fact that they have been served at this late stage, again, we still would not proceed with an application for an interim order against those two employees. We certainly will be seeking a final order against those two employees, but given that they appear to have been only served today, we don't press the matter with the two employees in attachment C.

PN170

We certainly do have with those employees in attachment A and B and, of course, with the respondent unions, your Honour, we have an application and draft order. Application for an order for substituted service. Your Honour, there are two issues. Your Honour will also be aware that an amended application was filed. The only difference between the amended 127 application and the first 127 application is that the schedule of employees in the amended application contained four additional names and removed ten names. The four additional employees have been served with the amended application. So, what we also seek to do with this order for substituted service is to avoid the need to have to serve the amended application in which the only difference is the addition of those four names in the schedule on the other 120 employees. So, in terms of the order we seek, paragraph 1 - - -

PN171

THE DEPUTY PRESIDENT: I wonder if it is necessary to go through the detail of this now. The question for the Commission is an adjournment.

PN172

MR BLACKBURN: Yes. Well, your Honour - - -

PN173

THE DEPUTY PRESIDENT: - - - or otherwise.

PN174

MR BLACKBURN: Your Honour, this is relevant in the - you certainly don't need to determine this order at the moment but it is relevant in the sense that the question of service is put against us and what we are saying is that we propose, if permitted to deal with that, service has been effected on the union, service has been effected on 49, I think it is, of the employees or 69, in accordance with the rules. Service has been effected on 69 employees in accordance with the rules. We seek an order to wave the requirement for service in accordance with the rules on the other 49 and to deem that service will be sufficient by leaving a copy of the application at the residence or usual place of residence of the person, which is in fact what was done.

PN175

So, we are seeking, in fact, a waiver, if you like, of the requirement to serve personally or to leave it with a person 15 years of age or older and a direction from you that in fact the steps we have taken with that second group of 49 employees are sufficient. In that regard, your Honour, there are two further matters to consider, apart from the urgency of these proceedings and the fact that we are only seeking an interim order today. And the first is that the nature of the order we seek, the nature of the section 127 order, that is the interim order - -

PN176

THE DEPUTY PRESIDENT: Mr Blackburn, what is before me now is a request for an adjournment.

PN177

MR BLACKBURN: Yes, your Honour.

PN178

THE DEPUTY PRESIDENT: And I wonder if you could rather than perhaps proceeding ahead to present your case in other respect, deal conclusively first with what put to me in relation to grounds for an adjournment so that matter can be decided first.

PN179

MR BLACKBURN: Yes. I am actually trying to, your Honour. I am obviously not making myself particularly clear. I apologise for that. What was put was that the orders had not been served personally on a large number of employees. And for that reason it ought not proceed. That was put against us. Now, what we say about that is, firstly, yes, we recognise that there are 49 employees on whom the order was not served in accordance with the rules. In strict compliance with the rules. It was left at their house. It was left at their house on Friday. We accept that. But what we say is this. That if the employees had not been named individually, the rules wouldn't have required them to be served at all.

PN180

So, there is no automatic premise in the Act or the rules that employees have to be served with a section 127 application. It is only because we have named them individually that the rule requires that they be served. We have attempted to effect service. But they weren't home and we weren't able to do so. The matter is an urgent one. It is a section 127 application. We are only seeking an interim order. And in those circumstances, we say that there is a strong basis for you to grant us relief from the rules and to direct that service in the manner in which it was effected, by leaving at the door of those 49 employees house, is sufficient compliance with the rules.

PN181

And that deals with the point that my friend has raised, that there was no effective service. The other point, your Honour, and this is why I was going to put up the interim order, is that the orders themself contain a provision as to service which is a provision that was originally found in a decision of Munro J in the Rheem matter which in effect says that before the section 127 order can be enforced in the court, it must be served on the employee. So, there is a further safeguard, if you like. Those employees are at no risk of having the order enforced because a term of the interim section 127 order that we seek, and indeed of the final order that we seek, is that service on an employee must be given by United KG providing a copy:

PN182

By mail, e-mail, facsimile or other means of delivery prior to commencement of proceedings against any employee in respect of conduct that is continuing in breach of this order.

PN183

So, that the 127 order cannot be enforced against any employee unless it is actually served personally on that person. That will be a term of the order that we seek. Your Honour, I have the order here. If your Honour wishes to see it, I can hand it up.

PN184

THE DEPUTY PRESIDENT: Not at this point.

PN185

MR BLACKBURN: So, all those reasons, we say, deal with the point of service that has been put against us.

PN186

THE DEPUTY PRESIDENT: Just to clarify that last submission, are you saying that the employees that were not served in strict compliance with Commission requirements would be excluded from the proposed interim order?

PN187

MR BLACKBURN: No, your Honour. Can I refer your Honour to the section 127 application that has been filed.

PN188

THE DEPUTY PRESIDENT: Certainly.

PN189

MR BLACKBURN: The same provision appears - the same protection, if you like, which was formulated by Munro J in Rheem Hot Water case appears in the draft order attached to this application which is on page 7. And it is paragraph 4(c). So:

PN190

Service on an employee in schedule 1 which would be service on any employee bound by the order shall be given by ...(reads)... is continuing in breach of this order after that provision or making available this order.

PN191

Now, the language might be a bit difficult but that is taken from the order that was formulated by Munro J in the Rheem case as, if you like, a model order for parties to follow. And Munro J devised the order for the purpose of providing that protection to employees, given that the rules, particularly where employees were named as a class, did not require employees to be served with the original process. And so he said: Well, look, I will give you the order, but before you go and seek to enforce this order in the court and obtain injunctions, then you must serve it on the individual employees and you can only proceed in the court against any breach of the order which the employees engage in after having been served.

PN192

So, in other words, the order really doesn't take effect, at least insofar as one can enforce it, until such time as the employee is served with the order. And that is the protection that is in the 127 order that we had applied for. It is also in the interim order. So, for all those reasons, the employees are not exposed to prosecution or to the orders being enforced in the Federal Court until they are served with the order in accordance with the terms of the order itself and the decision of Munro J. Your Honour, the suggestion that the union has not had an opportunity to speak to the workers, I think, is a little disingenuous. I say that respectfully, because I understood that they did have a meeting scheduled for 9 am this morning but cancelled it.

PN193

Now, I suppose it will be said: Well, you know, we can't be in two places at once. But there is more than one union official and it is quite possible to have people contacting other people by phone, as indeed they did contact by phone over the weekend to cancel this morning's meeting. But we go back to the submission, your Honour, in concluding that nothing has changed in the last 22 days and that there is no urgency about this. There is a great urgency about this. The situation that Western Power has deteriorated. The evidence will indicate that it will only take one more generator to cause - once K4 goes down and that is on the verge of going down, it will only take one more generator to cause black-outs.

PN194

And if one applies the principles relating to applications for adjournment in section 127 applications, those cases were cases in which the union had 1 and a half and 2 hours notice. In this case they have had over 2 and a half days. And now we are not seeking today a final order but only an interim order. And that could only be enforced against employees once it has actually been served on them. So, for all those reasons and the urgency to proceed with this application at this time, your Honour, we say the application for adjournment should clearly be rejected.

PN195

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN196

MR EDMONDS: Yes, sir. There was a number of issues raised in those submissions, sir. In particular, the correspondence from Western Power. Two letters, exhibit 1 and exhibit 2 dated 3 August 2004, sir, that we need to seek instructions or certainly the AMWU needs to seek instructions on the issues raised in that correspondence, sir. Further, sir, we note the correspondence to your Chambers, sir, on 9 August 2004 was not copied to the AMWU or the CEPU. And certainly, sir, this is the first opportunity we have had to see it. Normally, sir, in circumstances with this correspondence flowing between the Commission and one of the parties, sir, it is traditional to as a professional courtesy to copy the other parties into that.

PN197

But obviously that hasn't been observed in these circumstances, sir. So, we need to take instructions on the issues raised in that correspondence, sir. And, further, sir, the issue of the application for an order for substituted service has not been raised with us.

PN198

THE DEPUTY PRESIDENT: Well, what date was the correspondence you referred to, Mr Edmonds?

PN199

MR EDMONDS: Which one, sir?

PN200

THE DEPUTY PRESIDENT: The one that was not sent to you.

PN201

MR EDMONDS: That is the correspondence this morning, sir.

PN202

MR BLACKBURN: It was this morning, your Honour. I apologise on behalf of myself and my instructing solicitors. That was not intended to be a discourtesy and it was an oversight on our part.

PN203

MR EDMONDS: So, we - - -

PN204

THE DEPUTY PRESIDENT: Is this the one that was sent through by fax to the Commissioner at 8.35?

PN205

MR EDMONDS: Yes, sir. It was, sir. But it wasn't copied to our office, sir. Additionally, sir, the issues of the application of an order for substituted service and the interim orders are not matters that have been raised with us to this point, sir. So, we would ask for a short adjournment, sir, so we can actually obtain some instructions on the application for substituted service on the interim orders, sir, and of the correspondence of Western Power as well as the correspondence that is dated 9 August 2004, sir, annexing the names of the workers, sir. So, I wonder if we could have a short adjournment, sir. Maybe half an hour to take some instructions on those issues so we can adequately respond to those issues raised.

PN206

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN207

MR McLAUGHLAN: Yes, sir. I would likewise seek that adjournment to have some instruction. I was just seeking a bit of clarification. There was some reference made to some units going down, being K6, K1 and possibly K4. They had dates on them, if I was correct, of 9 August which is today. Today. And 7 August. I am just wondering people were aware that that was happening when they sent in their application. I am not sure.

PN208

THE DEPUTY PRESIDENT: Thank you. There is no need to address that question at present because what the Commission is considering the question of an adjournment. There will be an opportunity for all relevant matters to be pursued as appropriate. The Commission has been asked to grant an adjournment in the matter by the respondents. And has heard quite lengthy submissions from the parties. Mr Blackburn, in relation to the request for a short adjournment which Mr Edmonds has just put forward, do you have any difficulty with that?

PN209

MR BLACKBURN: No, your Honour.

PN210

THE DEPUTY PRESIDENT: Thank you. The Commission notes that, firstly, it has been informed that correspondence dated 9 August to the Commission was not copied to the respondents in accordance with usual practice and I was unaware of that. And would, indeed, require a copy to be provided to each of the respondents.

PN211

MR EDMONDS: It has been provided now, sir.

PN212

THE DEPUTY PRESIDENT: That has been done. So, that matter has now been resolved. And, Mr McLaughlan, you also have a copy?

PN213

MR McLAUGHLAN: Yes, I have.

PN214

THE DEPUTY PRESIDENT: Yes. Thank you. In relation to the question of the various grounds that have been given by Mr Edmonds, I deal, first, with the ground in relation to Mr Saunders.

PN215

MR EDMONDS: Sorry, sir.

PN216

THE DEPUTY PRESIDENT: Yes?

PN217

MR EDMONDS: If we could, sir, there are a number of issues that have been raised by Mr Blackburn in relation to the request for an adjournment of the substantive proceedings today, sir, and those are the minor issues that we need to take instructions from our instructing shop stewards, sir, so that we can adequately respond to those grounds that have been raised by Mr Blackburn before you make your decision on the substantive issue of an adjournment, and that is why the shorter adjournment has been sought, sir.

PN218

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN219

MR BLACKBURN: Yes, I have no difficulty with that, as long as it doesn't become too long, your Honour. But certainly we don't have a difficulty with that.

PN220

THE DEPUTY PRESIDENT: Thank you. The Commission is conscious that it has been submitted by the applicant that there is a real risk of power cuts occurring. That the situation is critical. And that there is a very real threat to health and well-being of the WA community. And that there is a great urgency to deal with these matters. As indicated earlier, the Commission is bound to act quickly and it is certainly, however, bound to try and avoid technicalities as much as is possible. In the circumstances, I will grant a short adjournment but indicate to the parties that during that adjournment I would wish all parties to give consideration to whether conciliation may be of assistance and to advise the Commission of that on resumption.

PN221

And indicate to the parties that the Commission, whilst wishing to give weight to considerations of procedural fairness, also is required to give weight to questions of quick and expeditious justice. So, with those considerations in mind, the Commission will adjourn and resume on the basis that approximately 45 minutes was sought.

PN222

MR EDMONDS: Sir, we only sought half an hour, sir. That would be sufficient.

PN223

THE DEPUTY PRESIDENT: 30 minutes will be sufficient.

PN224

MR BLACKBURN: I am sorry, your Honour, my instructing solicitor has just pointed out the time. Whether perhaps we could marry that with the luncheon break if there is to be one.

PN225

THE DEPUTY PRESIDENT: Certainly. I would have in mind a quick one of some 45 minutes.

PN226

MR BLACKBURN: Yes.

PN227

THE DEPUTY PRESIDENT: We are now adjourned.

LUNCHEON ADJOURNMENT [12.59pm]

RESUMED [1.52pm]

PN228

THE DEPUTY PRESIDENT: Mr Edmonds?

PN229

MR EDMONDS: Yes, sir. Thank you, sir. I thank you for that adjournment, sir, it has enabled me to take some instructions in relation to the issues raised by Mr Blackburn in response to our application for an adjournment. If I could perhaps deal with the issues one at a time, I suppose, sir, is the best way of doing it. The first issue, sir, is that correspondence of 3 August 2002 - 2004, sorry, sir, exhibit 1 and exhibit 2, sir. Again, sir, we would say that it carries no weight until such time as it is put to the witness in the witness box, sir, but we do understand that he is available to be called if he needs to be.

PN230

In relation to that issue, sir, we're not quite sure how genuine the power dispute is, sir, and it would appear from those correspondence that it may have been written in response to a request from the applicant for that correspondence, sir, rather than actually generated by Western Power of its own volition, sir. And we would also seek to tender an exhibit. This is an article, sir, that appeared in the Collie Mail on 29 July 2004 which is some, I suppose, four or five days before the correspondence from Mr Aberle was sent to the applicant, sir.

PN231

In particular, sir, if I could draw your attention to the articles - or to the article, rather, at the top of the page and to the marked paragraph, which starts at the bottom of the first column, sir, and finished at the top of the second column, that:

PN232

Western Power currently has sufficient fuel and generation plant available to meet the anticipated demand for electricity in the short term.

PN233

That is a statement made by the Western Power Managing Director, sir. So, we would refute the allegation that there is a crisis on our hands, sir, or that a crisis has recently manifested itself and we would say under those circumstances, sir, that the correspondence from Western Power is not entirely genuine with respect to the urgency of this matter.

PN234

But that is something that we can put to Mr Aberle in cross-examination, sir, if we need to but we would seek to tender that article, sir, and I can call Mr Shawn Currie, sir, to confirm that it did, indeed, appear in the Collie Mail on that day, if that is necessary, sir, but we would seek to tender it at this point.

PN235

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan, in relation to that?

PN236

MR McLAUGHLAN: Sir, more than happy.

PN237

THE DEPUTY PRESIDENT: In relation to the tendering of the exhibit, you are in agreement?

PN238

MR McLAUGHLAN: Yes. Yes, sir. Yes.

PN239

THE DEPUTY PRESIDENT: Mr Blackburn?

PN240

MR BLACKBURN: No difficulty with that, your Honour.

PN241

THE DEPUTY PRESIDENT: Thank you.

EXHIBIT #3 COPY OF ARTICLE FROM COLLIE MAIL DATED 29/07/2004

PN242

MR EDMONDS: Thank you, sir.

PN243

THE DEPUTY PRESIDENT: Mr Edmonds?

PN244

MR EDMONDS: So that, sir, it deals with the issue of the impending crisis with respect to power generation, sir. We don't conceded that there is necessarily an impending crisis that would necessitate the Commission proceeding in relation to this matter, causing the respondents procedural unfairness on those issues, sir. What we further say with respect to the authorities, with respect to 127 orders, sir, it has been put by Mr Blackburn that the authorities in question favour his version of events, sir, and we don't think that that is the case, sir. These authorities deal with situations where orders are sought against a union or unions, rather - - -

PN245

THE DEPUTY PRESIDENT: Just before we move on to the authorities.

PN246

MR EDMONDS: Yes, sir. Certainly, sir.

PN247

THE DEPUTY PRESIDENT: I would ask for your submission in relation to the phrase "in the short term" as to what that means? That is the last phrase in that sentence.

PN248

MR EDMONDS: Well, to be honest, sir, I don't profess to know what was in the mind of the Managing Director of Western Power when he made that statement, sir, but what I would say, sir, is that the short term is longer than three or four days, sir. And maybe that is something we can put to Mr Doug Aberle if he is called to give evidence, sir. We can put that issue to him, to ascertain what crisis manifested itself between when that statement was made on 29 July and, indeed, the 3 August, when he wrote his correspondence about the looming crisis, sir. But that is potentially a matter we can put to mr Aberle, sir, rather than something I would seek to speculate on at this point in time.

PN249

THE DEPUTY PRESIDENT: But your own view at this point is not less than three to four days?

PN250

MR EDMONDS: Well, sir, I would say that a plain reading of that, sir, is that it is an attempt by the Managing Director of Western Power to allay community fears with respect to power blackouts and I think it would be disingenuous of Western Power to be making statements that there was no impending crisis in the short term. And if that was to mean 28 hours or 48 hours, sir, I would imagine the general public would not be particularly happy about that. But, again, sir, as I say, I don't seek to, or I certainly don't profess to know what was in the mind of the Managing Director of Western Power when he made that particular statement, sir. Maybe that is something I can put to Mr Aberle, sir, if he is called to give evidence.

PN251

THE DEPUTY PRESIDENT: Thank you. Please continue.

PN252

MR EDMONDS: Thank you, sir. In relation to the authorities with respect to adjournments, sir, they deal particularly with circumstances where orders are sought against trade unions, sir, and against trade unions who've - if I may say, sir, some of them have got considerable experience with dealing with issues of 127 orders and injunctive relief, which is something, sir, that it is true, the AMWU has got that experience, sir. However, sir, those authorities don't go to the issue of orders being sought against individual workers. Now, in these circumstances, sir, we've got orders being sought against individual workers which is quite a serious matter for those individual workers, sir, they become personally liable for any breach of those particular orders and they should be entitled to be heard on those issues, sir.

PN253

It would be fair to say that the authorities deal with the sort of notice that needs to be provided to a union which has got experience in dealing with industrial disputes such as this, however, we would draw a distinction between those cases, sir, and cases where orders are being sought against individual workers, as is the situation with this present application in front of you today, sir. Orders are being sought against individual workers and there is quite - it is certainly fair to say, sir, it is quite a serious matter to have 127 orders sought against you and it is doubly serious, I suppose, sir, when you're an individual, when you're an individual worker and not a organisation, to have section 127 orders sought against you for the damages that may flow from any breach or potential breach of those orders, have a greater impact upon an individual worker than they may have upon an organisation.

PN254

Indeed, there is a situation where those individual workers may be liable for any damages. If 127 orders were to issue those individual workers may be liable for any damage that may flow from any failure to comply with any orders, if any orders were to issue. So, we would say in those - in that situation, sir, there needs to be further flexibility given to the respondents in these circumstances, that being the workers as well as the union over this issue. Now, I note the correspondence from Blake Dawson Waldron of 9 August of 2004, sir in which it is stated that all these employees contained in attachment (a) and, I believe, in attachment (c) now have been personally served with a copy of the applications, although I acknowledge that orders are not sought against those workers included in attachment (c) and that the application was left at the residence of those workers who were listed in attachment (b). And the applicant seeks an order for substituted service against those workers listed in attachment (b).

PN255

What we would say about that, in this circumstance, is that if you turn to attachment (a), sir, in relation to this matter the name listed at number 8 in that attachment, sir, is a Mr Leigh Chapman. Mr Leigh Chapman is available today, sir, to give evidence if it is needed, sir, but he has certainly instructed me that while he received three copies of the notice of listing, he certainly never received a copy of the application on the weekend, sir. Now, he is present here today, sir, but, as of this time, he hasn't received a copy of the 127 application and it is the responsibility of the applicant to serve the 127 application upon the workers and, as such, he has not been personally served with that application.

PN256

Now, there is no sworn affidavit of service or there is no sworn evidence that has been provided to you in relation to the service of these documents upon the individual workers, sir. All there is, is correspondence from the law firm acting for the applicant, sir, and I suspect, sir, that the service was not organised by the law firm, sir, or completed by the law firm, sir. I suspect it was done by the parties. Now, in those circumstances, sir, there should be an affidavit of service or there should be evidence given today, sir, about the service of the documents in these proceedings upon those individual workers and I don't believe the applicant is in a position to adduce that evidence to you today, sir.

PN257

MR BLACKBURN: No, we are.

PN258

MR EDMONDS: Well, they just informed me that they are indeed available to adduce that evidence, sir, and it is just as we are available to adduce evidence from Mr Leigh Chapman, that he has not been properly served sir, which I submit, sir, would throw into doubt any affidavit of service in relation to the list contained in the correspondence 9 August 2004 from Black Dawson Waldron, sir. We would submit, in those circumstances, the applicant should not be free to proceed against those workers and certainly no orders should issue against those individual workers until they've had an opportunity to certainly seek legal advice in relation to the issues raised in that correspondence and until we can properly ascertain whether indeed they were properly served with a copy of the application and a copy of the notice of listing.

PN259

So, in those circumstances, sir, we would say even if you're not prepared to grant an adjournment to the unions over the 127 orders, sir, then, certainly, you should be - you should certainly, in the circumstances, grant an adjournment of the 127 application insofar as it relates to the individual workers, such that, as a full back position I suppose, the AMWU is putting to you, sir, that if you were to proceed against the union today, sir, that you shouldn't proceed against the individual workers as a matter of procedural fairness. And we would say in these circumstances, sir, the Commission has got a greater duty to ensure procedural fairness for those workers who are relatively inexperienced in these issues and potentially have not been served with this application.

PN260

THE DEPUTY PRESIDENT: Are you referring to the employees named in attachment (b)?

PN261

MR EDMONDS: And attachment (a), sir. There is some doubt, sir, as to whether those employees named in attachment (a) have been properly served with the application and until that doubt is clarified, sir, we would say that you should not proceed against those employee in attachment (a) either.

PN262

THE DEPUTY PRESIDENT: Is that in relation to the employee Mr Chapman only or are there are other - - -

PN263

MR EDMONDS: Well, I don't know if there is others, sir, because we certainly haven't had an opportunity to take instructions from all those workers, sir, but I would say certainly in the circumstances where the applicant appears in front of you today, sir, and says all those employees in attachment (a) have been properly served, and we can lead evidence today, sir, that that is simply not the case, then that throws into doubt the statement that all employees in attachment (a) have been properly served and as such, sir, you should not proceed to make orders against any employees that are contained in that correspondence, sir, and that, if you were to proceed today, sir, in relation to the issue of interim orders it should only be against the unions and not against individual workers.

PN264

Further, sir, we note that it is an interim order that is being sought in these matters and the applicant has put to you that the principles of natural justice are protected by the proposed orders insofar as those orders cannot be enforced against the workers until such time as they've had a copy of that application served on - sorry, a copy of any orders served on them. Well, we would submit sir, with respect, that that does not protect their position at all, to present them a fait accompli where

PN265

essentially they haven't had an opportunity to be heard and they are presented with orders, sir, which if they defy, may cause them considerable problems, sir.

PN266

To deliver that fait accompli to them, sir, is contrary to the principles of natural justice, that they should have an opportunity to be heard in relation to any orders that may issue against them before those orders are issued, not after those orders are issued, because it is too late in the proceedings once those orders have issued for them to actually be protected in relation to those matters. So, we would say, sir, in those circumstances, it is a further compelling reason why this application, if it is to proceed today, sir, should not proceed against the individual workers.

PN267

What we would finally say, sir, in relation to the issue of conciliation, we would say that prior to making any decision on the issue of an adjournment of today's proceedings we would say, sir, that we're certainly willing to participate in conciliation in an attempt to resolve these issues and maybe that would be a way of moving this matter forward, sir. So, we're certainly willing to participate in conciliation in front of the Commission, if that is what is desired, sir, and I will leave that in your hands, sir, as to a decision on that issue.

PN268

THE DEPUTY PRESIDENT: Do you see any potential value in proceeding down that route, Mr Edmonds?

PN269

MR EDMONDS: Well, sir, there is a stop work meeting scheduled for tomorrow, I believe, at 12 o'clock, sir. Well, I say a stop work meeting, sir, there is no work going on at the moment. There is a meeting of the employees scheduled at 12 o'clock tomorrow, sir. It is true that that meeting was scheduled for 9 o'clock this morning, sir, but, to be frank, sir, there was no one available from the union to attend because as this matter is being conducted by Mr Saunders to this point, with the assistance of Mr Currie, Mr Saunders is currently in Darwin, as the Commission is aware, and it was necessary for Mr Currie to be present here today, sir, so that he could certainly be present to assist me with these proceedings, sir.

PN270

I'm further instructed that Mr Ferguson is available this afternoon, sir, the State Secretary of the organisation, is available if it is necessary, sir, to attend any conciliation proceedings, if that is of any assistance. So, in those circumstances, sir, we would be willing to engage in conciliation, if the Commission is so minded.

PN271

THE DEPUTY PRESIDENT: Did you say that there was a meeting planned for noon tomorrow?

PN272

MR EDMONDS: That is correct, sir, so if there is an outcome from any proceedings, from any conciliation proceedings today, sir, then that is something that can be put to the workers tomorrow.

PN273

THE DEPUTY PRESIDENT: Thank you. Does that complete your submissions?

PN274

MR EDMONDS: Yes, it does, sir. Unless there is any further questions, sir, I don't intend to make any further submissions at this point, sir.

PN275

THE DEPUTY PRESIDENT: Not at this time?

PN276

MR EDMONDS: No, sir.

PN277

THE DEPUTY PRESIDENT: Thank you, Mr Edmonds. Mr McLaughlan?

PN278

MR McLAUGHLAN: Yes. Thank you, sir. Sir, with regards to service of the people on the list, I've been unable to determine whether any of the CEPU members or member has been served, so I can't with any frankness indicate whether they have or haven't been. I've been unable to contact them in that time. I suppose, likewise, the concern we would have is that what has been put is that - well, even if they haven't been served properly just now, before we take action against them we would make sure that they had been properly served the application and we would say that is like carrying out a search without a search warrant, by putting the search warrant in place before you take them to court. And we would say that is not the intent of serving applications on unions or members.

PN279

With regards to the third point of conciliation, it could move the matter on. It may be appropriate to move into that mode and unless there is any further questions, I would leave it at that.

PN280

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN281

MR BLACKBURN: Yes. Thank you, your Honour. It is not - in respect of the - to the extent that reliance is placed on Mr Saunders' absence or that is a reason why there should be an adjournment, there has been no explanation offered by the union as to why he is in Darwin, we're just simply told that it is urgent and not told what it is about. He chose to head off to Darwin.

PN282

MR EDMONDS: Sir, I'm happy to provide that explanation if it is necessary, sir. My understanding is that Mr Saunders is dealing with some issues to do with the Bayu-Undan oil and gas projects, sir, and, indeed, the laying of a pipeline between the Bayu-Undan gas fields and the processing plant in Darwin, sir. The AMWU, sir, has got the conduct of that issue for the workers on the pipe laying barge, sir, and, indeed, that is an issue - it is a project of significant value to the economy of Australia, sir. It is a - it is certainly a matter, sir, of considerable value to the national economy, sir, and it is indeed a very large project, sir, and so, in those circumstances, sir, Mr Saunders was unable to be here for these proceedings and was compelled to deal with those matters which have been scheduled for some time, sir, and they were certainly scheduled before this matter was notified to the AMWU, sir.

PN283

So, if that explains his absence, sir, that that is certainly my understanding where he is today, sir.

PN284

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN285

MR BLACKBURN: Your Honour, I thank Mr - my friend for that explanation but apart from the assertion that Mr Saunders is acting in the national interest and his presence up there in Darwin is a matter of national interest, no detail was given as to why it is that Mr Saunders has to be there today. I accept that it might be a large project but we're not told what exactly Mr Saunders is doing up there or why his trip couldn't be delayed by one day to allow him to participate in these proceedings, which also are of considerable importance. So, still, we say that the union has not provided any satisfactory explanation for Mr Saunders' absence, other than to refer in very vague terms to there being a large project in Darwin and it being a matter of national interest that Mr Saunders be there today.

PN286

MR EDMONDS: Well, sir, if it is of importance to the Commission, sir, I can certainly have a brief adjournment, sir, and seek some instructions as to precisely what issues he is dealing with, sir. But I will be in the Commission's hands as to whether that is necessary, sir.

PN287

THE DEPUTY PRESIDENT: Mr Blackburn?

PN288

MR BLACKBURN: Yes, your Honour. I certainly don't want to create an opportunity for my friend to have a further adjournment. They have had ample opportunity by now to provide the Commission with an adequate explanation and they've not done that and I would simply leave the point at that. Now, my friend did tender a article from - it appears to be from the Collie Mail. We accept that it is from the Collie Mail and that it is, as is handwritten of exhibit 3, dated the Thursday, 29 July.

PN289

Your Honour the words that my friend relies upon in that article are specifically:

PN290

Western Power currently has sufficient fuel (gas, coal and oil) and generation plant available to meet the anticipated demand for electricity in the short term.

PN291

Now, your Honour, Western Power issued a media release on 27 July that has that exact quotation, including the brackets, and I have a copy of the media release, your Honour. I didn't expect to be tendering it today, but I only have one copy. If I can show it to my friends and then they can - I would seek to tender it. And the purpose of doing so, your Honour, is to establish the date of this - of the statement that is relied upon in the newspaper article.

PN292

Your Honour, and I seek to tender this document and I undertake, if the Commission is not able to - well, I undertake to provide copies to my friends, probably at the end of the day or overnight.

PN293

THE DEPUTY PRESIDENT: Thank you.

EXHIBIT #4 COPY OF MEDIA RELEASE DATED 27/07/2004

PN294

MR BLACKBURN: Thank you, your Honour. And your Honour will notice that, as I've indicated, the wording which was highlighted there before today's proceeding is exactly the same as the wording that appears in the article and I think a reasonable inference can be drawn there for - that the quote in the article actually was out of a statement issued by Western Power dated 27 July. And that is significant, your Honour because, as I mentioned earlier on today, in the last week or so a number of things have happened which, firstly, prompted the application and then things have happened since then as well.

PN295

In particular, on 30 July, K5 went down at Kwinana. That generator has a capacity of 200 megawatts, so that is after the date of the statement. On 8 August K1 went down, another 120 megawatts and K6 went down, another 200 megawatts. In that same period of time a fourth generator at Kwinana, K4, has become critical. That is 120 megawatts there and is expected to go down any time and in addition, sorry, another 100 megawatts was lost at Worsley, again yesterday. So, since that statement was made some 620 megawatts of power has been lost and another 120 megawatts, being at Kwinana K4, is on its way out. Total loss, therefore, by the time K4 goes, of 740 megawatts which, as I indicated in my submissions earlier, leaves or will leave Western Power with a capacity of 2441 megawatts, compared to a July demand peak of 2418 megawatts.

PN296

As I indicated earlier, those developments underpin the urgency of these applications. They have all occurred in the last week. In fact, most of them occurred over the weekend and they leave us on the cusp of blackouts if a further generator goes down after K4 and at the rate they're going down, I think your Honour can appreciate that there is a serious risk and Mr Doug Aberle, who I believe is the author of the statement in exhibit 4, is - will be available to give evidence later in the proceedings.

PN297

Your Honour, my friend sought to lessen the impact of the authorities dealing with the manner in which adjournment applications in section 127 matters should be approached and sought to lessen their impact by saying, no, they were all concerned with cases in which orders were sought with trade unions. Well, we don't actually have the detail of the orders that were sought. It is highly likely, I suggest, that orders were sought against the unions and the employees, whether named individually or named as a class.

PN298

It is more common for employees to be named as a class. As your Honour is well aware there is often not much point in seeking section 127 orders unless you also seek orders against employees because what invariably happens is the union then says, well, yes, we're complying with the order. We haven't encouraged anyone to take any further action but the employees down there are acting all on their own and sooner or later my friend will make that submission, it is only a matter of time.

PN299

So, in those decisions, the real principle that emerges which underpins those decisions is that the purpose, the remedy provided by section 127 will be defeated if applications to adjourn are granted too readily and your Honour will recall that those decisions involve cases where the people only had one-and-a-half or two hours notice.

PN300

This is the obligation that is imposed on an employee by a section 127 order. It is not great. Individual workers will only be in breach of the order if, after having been served with a copy of the order, they then remain on strike. The only obligation imposed by the order is to go back and work. And it is not a particularly onerous obligation and it is an interim order that we are seeking as well. My friend has sought to make something of attachment A and the fact that Mr Chapman only received three copies of the notice of listing and didn't receive a copy of the application. Now, Mr Chapman, of course, is one of the two primary shop stewards down at Muja.

PN301

He has been involved in almost all of the negotiations. He may have missed one or two meetings but he has been involved in, I would estimate, about nine of the eleven EBA meetings down there. He spoke to Mr Rod Keep who is the United KG Superintendent at Muja on Saturday and told him that he had received at least the notices of listing. He didn't indicate to Mr Keep that he has not received the application. He informed Mr Keep that the union would be ringing around and cancelling the meeting that had been scheduled for the Monday. So, there certainly would have been some contact between Mr Chapman and Shawn Currie and the employees over the weekend.

PN302

And that is significant for two reasons. One is, I think it is very unlikely that Mr Chapman has not, by now, received a copy of the application. But I accept that my friend says, well, the obligation on us to serve and I will come to that. But, secondly, there has been a ring around on the weekend and if there had been anybody else that had not been served with a copy of the application, I am sure we would have heard. Certainly if there had been large numbers, more would have come forward. There would have been more people saying: I haven't received copies of the application. They have been ringing around on the weekend to cancel this meeting.

PN303

They are in contact with each other. Now, Mr Keep was involved in the process of collating the envelopes, putting the applications and the notice of listing in the envelopes, and he is here and available to give evidence about that. And it is possible, I suppose, that what occurred, your Honour, was that the application - Mr Keep can give evidence about this. The application and the notice of listing were put in the envelopes and sealed and then a fresh notice of listing was provided later in the day. The applications were re-opened and the fresh notice of listing was put in as well. Now, it may have been in that process of collating and sealing the 120 or so envelopes that Mr Chapman didn't receive a copy of his notice.

PN304

We only have his word for that and after he gives evidence we obviously will accept that. But it is clear from the absence of any other employees coming forward, given that they had been ringing on the weekend, I think the Commission can draw an inference that that was a one off and that the other employees would have received the applications along with the notices. And Mr Keep, if required, your Honour, can give evidence about that. But in any event, we come back to this point, your Honour, if we hadn't named the employees individually, the rules wouldn't have required them to be served at all. So, natural justice, as the decision in Kiara indicates, it is a question of what natural justice requires in the particular statutory context.

PN305

And the Commission, by its own rules, has recognised that section 127 will be very difficult to administer if it insists by its rules on employees being served in every case. So, there is that capacity to name them as a class. Now, we didn't do that. And the reason we didn't do that is because if the matter proceeds in the Federal Court by way of enforcement, we want to be able to say that we did serve people individually, which is why it has proceeded in the way that it has. But the point I am making is, that the Commission accepts in its own rules that it is not an absolute requirement that every employee be served.

PN306

In this case we say the inferences that you can draw from the evidence of Mr Keep, once he gives his evidence, or even now on the basis of the statements that my friend has made and the statements that I have made, are that if Mr Chapman hasn't received the application, then it was a one off error and that you can infer, your Honour, that the majority of people, those other people that are listed in that schedule, have received their applications. And as far as Mr Chapman is concerned, we certainly wouldn't agree to him being removed from the schedule because unless he can stand in the witness box - well, no, we certainly wouldn't agree, your Honour, because he has been a primary participant in this whole proceedings and it would be inconceivable by now that he is not fully aware and fully briefed of the nature of these applications.

PN307

Your Honour, my friend's suggestion that what you ought do is simply proceed with the matter against the unions and not the employees, again, would completely defeat the purpose of the section 127 application. As I have indicated, it would leave the union able to say it is not us, it is them, as has happened on previous occasions. The action will continue. The generators will not be attended to. And the risk of power black-outs will be heightened. So, it would completely defeat the purpose to not be able to proceed against the employees. Finally, your Honour, on the question of conciliation.

PN308

Your Honour, the company is quite flabbergasted when, after having, as your Honour will be aware, attempted since 2 July in fact to bring the union to the Commission to conciliate. Numerous attempts. Numerous pieces of correspondence. Numerous conferences in the Commission. The unions, both of them, have flatly refused to participate in conciliation. Have said it would be of no avail. And today they suddenly see the light and say: Yes, conciliation might be of some use. And why? For one reason only, your Honour. To further delay these proceedings and avert the possibility of an interim section 127 order. It is disingenuous in the extreme.

PN309

And it poorly behoves my friend to put that submission. Your Honour, if I can take you to some of the history of this matter and the company's attempts to bring the union to the Commission to conciliate, recognising, of course, that the union was required to do that before taking any industrial action by virtue of clause 4 of the certified agreement which said that the parties agreed to seek the assistance of the Commission in order to avoid industrial action, once the previous agreement expired. Excuse me, your Honour. I will just locate a copy of the agreement. Your Honour, clause 4 of the agreement which expired on 1 July says:

PN310

In the event that negotiations on the terms and conditions of the replacement agreement are not finalised by 1 July 2004, ...(reads)... Australian Industrial Relations Commission in order to avoid further delays or any disruption to work activity.

PN311

The union, of course, has not done that. Not only has it not done that, it has positively resisted the attempts of the applicant to engage it in Commission conciliation. When both the unions filed their bargaining notices, they specifically stated in their notices that they were not asking the Commission to exercise conciliation powers. The company applied to the Commission for conciliation on 2 July. The clause in the certified agreement said if you haven't reached agreement by 1 July, then the parties agree to seek the assistance. The company was on the phone straight away or on the fax straight away. And applied to the Commission under section 170NA on 2 July.

PN312

On 5 July the union wrote to the Commission seeking to have the company's application discontinued on the basis that it had clearly said in its notice that it didn't require the Commission's assistance and didn't believe such assistance was necessary. And all this evidence and the documentation, your Honour, will be attached to the affidavit and proved through the evidence of Mr David Pretsel, who is the applicant's Human Resources Manager. So, the union wrote to the Commission saying we are not interested. We don't require your assistance. Your Honour convened a conference nonetheless. And at the conference on 5 July Mr Saunders said words to the effect of the union is not seeking the assistance of the Commission.

PN313

THE DEPUTY PRESIDENT: Mr Blackburn, at this stage I was, in my request before lunch, seeking to have your view as to whether conciliation would be helpful in the circumstances, rather than having more detailed submissions on the history of the matter to date.

PN314

MR BLACKBURN: Yes. Sorry, your Honour. Did you mention lunch?

PN315

THE DEPUTY PRESIDENT: Prior to the adjournment.

PN316

MR BLACKBURN: Yes. Good. We have all had lunch. Yes, yes. Sorry. Yes, sir, I have caught up. Thank you, yes. Your Honour, the point I am endeavouring to make is that the union is disingenuous. The only reason they are saying to you they want to participate in conciliation now for the first time is because they see that it might delay these proceedings further. That is the only reason. The company has even been threatened by Mr Saunders for coming to the Commission and seeking to participate in conciliation proceedings. In that conference on 5 July he told the company: The employees are going to strike for a further week because you have taken us to the Commission for conciliation.

PN317

And that has been the attitude to conciliation throughout. It is quite remarkable that today they have stood up, both of them, and said: Yes, we are now prepared to conciliate. It is just astonishing audacity for them to put that submission. And they only do it for one reason and the Commission should not, in our submission, be fooled by it. Your Honour, we have no confidence at all that conciliation today would provide any benefit. We have also seen in a previous conference, your Honour has made a recommendation. The unions have told us that they have gone and supported that recommendation in front of the employees and the employees have flatly rejected it.

PN318

So, we have no confidence that even if there was an outcome from these conciliation proceedings, that the employees would accept that anyway. We think there is absolutely no prospect of conciliation succeeding. We think the unions are utterly disingenuous in now suggesting it. We doubt the employees would accept anything that comes from the union in any event. And because of those reasons, your Honour, we are not here today to conciliate. It is simply too late for that. We need the 127 interim orders. When we have the 127 interim orders and after that the 127 final orders and we have got the bargaining periods out the way, then we will say to the union: Yes, we will sit down and talk. But the first thing we have got to do is get those workers back. Get the generators fixed. Make sure the power stays on.

PN319

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN320

MR McLAUGHLAN: Yes, sir. Just with regards to the comments with regards to conciliation. Unless I picked up the comments made by yourself just before the adjournment, there were four points that was raised by yourself. And one of them was that the parties should consider whether conciliation could assist at this point. So, it was not put up today by the unions. It was a comment made for us to consider. And given that there has been certain statements made with regards to power outage that has happened in the few days that we are unaware of and what impacts that may or may not have, we have taken that on board along with your comments.

PN321

And we simply came back from the adjournment, put forward a number of positions. But in one of those positions we put from both of the unions is that in the circumstances we were prepared to have some form of conciliation. So, I mean, I take offence that this is something that we have just thought of during the adjournment. And, in fact, as is stated, it was a suggestion that was put forward to us to consider and we responded to that consideration. Thank you.

PN322

THE DEPUTY PRESIDENT: Thank you, Mr McLaughlan. Having heard the submissions of the parties in relation to what the Commission raised as a question to the parties, which was in the view of the parties would conciliation be of assistance, having heard from the applicant that it has no confidence that conciliation would be of benefit and the response to my question by the respondent unions that they would be willing to endeavour to progress the issues in dispute through conciliation, I am of the view that in those circumstances where there is such a large difference between the parties that I am not satisfied that conciliation would be appropriate at this point in time.

PN323

However, if there was a change at any time and I had more reason to believe that conciliation was supported by both parties and would be beneficial, then that position that I have just put can be reconsidered and re-opened. Moving on then to the matters in the hearing, I come, first, to the question of the application for an adjournment. I have had the benefit now of considering some submissions and some documentation from the parties in relation to the Collie Mail and I have had the opportunity to hear further submissions from the applicant which has indicated that there is a serious risk to power supply, that we are on the cusp of black-outs, taking into account the requirements of the Act, I must place considerable weight on the statutory obligation on me to hear and deal with applications bought.

PN324

In relation to the absence of Mr Saunders, I note the submissions of the AMWU in particular in relation to the desirability of the attendance of Mr Saunders, and I had the benefit of a written submission from the AMWU on Friday in relation to that matter with Mr Saunders' schedule attached, and together with the additional submissions that have been put today, I am in a position now to be informed that he does have union business to attend to in Darwin and it was a prior commitment and that the matter that he is there for is a matter of some significance. Having said that, I am also satisfied from what has been put to me that the AMWU does have representation in this matter and is able to put its position forward.

PN325

So, in relation to the question of the opportunity for the parties to proceed and to make submissions and to adduce evidence, I am satisfied that there is that opportunity there. And for those reasons I am of the view that the matter should proceed. In relation to the submission that was put to me by Mr Edmonds that the matter should be re-listed in Collie, I note that that has not been the subject of any further submissions and I wasn't sure if you were wishing to pursue that further.

PN326

MR EDMONDS: Yes, sir. I still maintain that submission, sir. If you note the schedule attached to the back of the application, sir, you will notice that the vast majority of employees are in and around Collie, Bunbury, Greenbushes, Bininyup, Eaton, sir, certainly, sir, there are some around Secret Harbour, sir, which is more towards the Rockingham end of town, sir. Suffice to say, sir, that the vast majority of employees who are proposed to be respondents to the orders, sir, are currently residing in Collie, sir, and it would be certainly more appropriate in those circumstances, sir, for the matter to be listed and heard in Collie, sir, so that those people have got an opportunity to attend, sir.

PN327

And, indeed, it is more convenient for the relatively smaller numbers of people here today, sir, to transport themselves to Collie than it is for those large number of people, 120 odd people, to transport themselves to Perth for these proceedings, sir.

PN328

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN329

MR McLAUGHLAN: Sir, we would support that given that that is where the lion's share of the workforce is, that it would be appropriate to have the hearing either in Collie or Bunbury. Thank you.

PN330

THE DEPUTY PRESIDENT: Than you. Mr Blackburn?

PN331

MR BLACKBURN: Yes, I might ask when was the submission made? I think I missed it. Regarding the re-listing in Collie. Was that - - -

PN332

THE DEPUTY PRESIDENT: I heard that as being a ground that Mr Edmonds put forward this morning.

PN333

MR BLACKBURN: Did he? I am sorry.

PN334

THE DEPUTY PRESIDENT: In relation to a ground for an adjournment application.

PN335

MR BLACKBURN: I am sorry, your Honour, I must have been taking notes. Your Honour, might I just have a moment then to obtain some instructions?

PN336

THE DEPUTY PRESIDENT: Certainly.

PN337

MR BLACKBURN: Thank you. Your Honour, I am reminded by Mr Davies that, yes, the submission was in fact made while I was taking some notes. Your Honour, the witnesses whom the applicant proposed to call are here or within a few minutes of the Commission. there would be Western Power witnesses that we will call later in the day or tomorrow or whenever the matter is next to be listed. Work in Perth. They work in the Terrace. So, it would seem to me that it would be expeditious as far as those witnesses, to hear the company's witnesses now in Perth. Now, at the end of that, after that evidence has been taken, then the union might wish to tell us how many witnesses it intends to call and who they are.

PN338

The union has not yet said it is acting for any of those employees. None of them have put in an appearance. We don't know if any of them intend to attend the proceedings. It is supposition at the moment. But my friend would be in a better position to judge that after he has heard our case and presumably by that time someone will have entered an appearance for those employees if they wish to appear, but at the moment they haven't appeared in these proceedings. As far as the request for the proceedings to be immediately adjourned to Collie, that would obviously be the source of some delay.

PN339

What we will say to you is that at the end of today, after hearing from Mr Pretsel, if you are not already satisfied, then you will be in a position to make an interim order, bearing in mind that it is only an interim order which, presumably, the principles are very much the same sort of principles as apply to interlocutory orders. The balance of convenience clearly favours the granting of an order. The employees or the union would be battling to show any inconvenience caused by an order requiring them to return to work. And there are obviously serious questions to be tried. So, at the end of today, even on our evidence, you will be in a position to make that order and we would seek that that order be made.

PN340

Now, once the applicant's evidence is concluded, including the witnesses of Western Power who are based in Perth, once the employees enter an appearance if they wish to do so, then we may be in a position to consider where the matter might be listed in future. And that, of course, will also depend on your Honour's availability.

PN341

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN342

MR EDMONDS: Yes, sir. Sir, it may certainly be true, sir, that none of the workers have entered an appearance in relation to the matter today, sir, which merely takes us back to our initial point which is that these workers have potentially not been served properly at all or, if they have been served properly, sir, they haven't had an opportunity to seek legal advice in relation to this matter or they haven't been able to seek advice from the union in relation to this issue, sir. It is true, sir, that we don't say that we act on their behalf at this point in time, sir. Until such time as I was able to sit down with those workers and ascertain indeed whether any conflict of interest existed, sir.

PN343

I would certainly be precluded by my professional obligations, sir, from standing in front of you today, sir, and saying that I represent those employees. However, sir, it is true that they haven't entered an appearance, sir. But I think it would be wrong to say that because they haven't entered an appearance that they are not interested. I think that you really need to give them an opportunity to be properly served with the application, to be aware of its contents, to seek advice as to the issues raised in the application and then potentially enter an appearance in relation to this matter, sir. But certainly we would say that that opportunity hasn't been granted to the workers yet.

PN344

So, on that basis, sir, we think that this matter should be adjourned to Collie. What we would further say, sir, is that even if the applicant's witnesses were to proceed today, sir, that any additional parties that may come forward from the workforce, sir, would be precluded from cross-examining those witnesses until such time as they had actually had an opportunity to hear their evidence and to cross-examine those witnesses, sir. So, even if that evidence is put today, sir, we would say that it may potentially be needed to actually be put again, sir, or those witnesses may need to be recalled to be cross-examined on the evidence that they may lead today.

PN345

THE DEPUTY PRESIDENT: Thank you.

PN346

MR EDMONDS: Thank you, sir.

PN347

THE DEPUTY PRESIDENT: In relation to the application that the hearing be adjourned to Collie I am satisfied that I have heard submissions from both sides indicating the bases for the application and the rejection by the applicant of that proposal. The Commission again notes the importance of its obligation under the Act to deal with this matter quickly and having ruled in relation to the adjournment application would certainly not wish to cause unjustified delay in the proceedings continuing.

PN348

However, if there were changes in the circumstances in relation to the hearing it might be possible for the matter to be further considered in relation to telephone participation by witnesses, if there are witnesses in Collie or perhaps Bunbury, that could be re-assessed in the light of further information in relation to whether there are employees that wish to appear before the Commission.

PN349

The Commission is duty bound to point also that it does have other urgent applications and other parties waiting for urgent listings at present in addition to having a considerable number of listed matters in the next few days. So taking all those considerations into account the hearing will proceed but the Commission will keep an open mind as to whether there needs to be any further consideration of involvement in these proceedings by employees at Collie.

PN350

I turn now to the question of service of the application and note that I have heard a wide range of submissions in relation to those matters and it is the Commission's understanding that with the exception of Mr Chapman in relation to whom it has been submitted he received three copies of the notice of listing but not a copy of the application. The Commission understands from what has been put that there are 68 employees, and the list marked attachment A to the correspondence from the applicant this morning, that have been served in person in accordance with the rules. Mr Blackburn?

PN351

MR BLACKBURN: Sorry, in person or by it being left with the person 15 years of age or older, your Honour, yes.

PN352

THE DEPUTY PRESIDENT: Thank you for that clarification. However, leaving aside those 68, that would appear to have been appropriately served, there is now a question of some 49, leaving aside the 2 in the category C, which the Commission understands the parties are not pursuing with any sense of importance. Mr Blackburn?

PN353

MR BLACKBURN: Yes. We don't press the application for the interim 127 order against those two.

PN354

THE DEPUTY PRESIDENT: No. Thank you. That it is of some concern to the Commission that those 49 employees, as I understand it, may not have received the required documentation. In relation to the decision which I've just made, that the hearing will proceed, I would be of a mind at this stage not to proceed with the application for an order for substituted service at this point in time but to proceed on the basis that the 49 employees at this point in time have not been proven to the Commission to have been served but the door remains open for the parties to give any further submissions or indeed any evidence in relation to what should happen in relation to the applications before the Commission which are numerous on this matter should occur.

PN355

So I would, given the complexity of this issue at this stage, just simply ask for any further submissions of the parties in relation to what the Commission has just said and then having heard that I will proceed accordingly.

PN356

MR BLACKBURN: Your Honour, if I could just have a moment to get instructions.

PN357

THE DEPUTY PRESIDENT: Yes, Mr Blackburn.

PN358

MR EDMONDS: Sir, I wonder if it is possible to have a short two minute adjournment?

PN359

THE DEPUTY PRESIDENT: Mr Blackburn?

PN360

MR BLACKBURN: I have instructions, your Honour, I am ready to proceed. I don't know if - - -

PN361

THE DEPUTY PRESIDENT: Mr Blackburn, you're ready to proceed. Are you, Mr Edmonds?

PN362

MR EDMONDS: It may be useful, sir, if we just have a short adjournment even to 3 o'clock, sir, just to clarify some of the issues. Mr Currie has just gone outside, sir. I am - - -

PN363

THE DEPUTY PRESIDENT: Certainly the Commission would wish to assist if - - -

PN364

MR EDMONDS: I am literally only talking minutes, sir.

PN365

THE DEPUTY PRESIDENT: - - - a short adjournment would be helpful.

PN366

MR BLACKBURN: I have no difficulty with a couple of minutes to assist my friend, your Honour.

PN367

THE DEPUTY PRESIDENT: Thank you. We will adjourn until 3 o'clock.

SHORT ADJOURNMENT [2.54pm]

RESUMED [3.06pm]

PN368

THE DEPUTY PRESIDENT: Mr Blackburn?

PN369

MR BLACKBURN: Yes, your Honour. Thank you. We do have a solution to the difficulty and that is if I might hand up your Honour copies of the draft interim order that we had prepared and we propose to amend it in one respect, which we think will overcome the difficulty that we're presented with at the moment. I should add, your Honour, that the employees that we're now discussing, being the 49 employees in the second group, the situation there is they were not home and the documents were left on their front doorsteps and we have not heard anyone say that they haven't received them but equally nobody can say that they have been served or been left with an individual at those houses.

PN370

So "they have been served" - in inverted commas - if you like in that way. Your Honour, the way we would propose to deal with it is this, and that is to amend the interim order so that it says:

PN371

The parties bound by this order shall be: (a) the union -

PN372

as appears there -

PN373

(b) the CEPU -

PN374

as appears, and we will provide your Honour with amended copy; (c) would then be:

PN375

...employees or United KG Pty Limited whose work is regulated by the United KG Pty Limited Power Plant Maintenance Certified Agreement 2003.

PN376

That would be (c). So the employees would be named as a class. Existing (c) would become (d) and (d) would then be:

PN377

...employees of United KG set out in schedule A to this application.

PN378

So some of those employees would be named individually, they're the employees that have been served. Mr Chapman would be taken out of that list and then United KG would be left on the bottom as well. So the employees would be named, all employees would be named as a class and then those employees that had been specifically served would be identified.

PN379

The reason we do it that way, sir, is we wish to preserve the position with respect to those employees that have been individually named because if the matter proceeds we think it puts us in a stronger position to enforce the orders in the Federal Court, at least against those employees. The Federal Court may detect a difference. The point has not been determined yet at that level, but as far as all the employees are concerned, that all employees would be named as a class.

PN380

If we go back to the rules, your Honour, and rule 25 if you name all the employees as a class there is nothing in rule 25 which requires employees to be served individually. So we think that by amending the interim order in that way it would bring it within rule 25, we would have complied. Rule 25(3), your Honour, says:

PN381

The applicant must serve a copy of the application on each party to the industrial dispute or -

PN382

that is not the situation here because there is no industrial dispute -

PN383

each party to the negotiation or proposed negotiation under an agreement or if the industrial action relates to work regulated by an award or certified agreement each organisation or employer bound by the award.

PN384

It is only if persons are named D that under 25(4) copies must be served on them. So by naming the employees as a class we are able to bring the application within rule 25. Sir, we would propose to deal with it on that basis and we think that that overcomes the problem that has been identified. Mr Chapman would be removed from the schedule, the schedule which would have the named employees would have those 68 employees named as individuals, but all employees would be caught by the new paragraph which applies the order to persons whose work is regulated by the certified agreement.

PN385

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN386

MR EDMONDS: Yes, sir, thank you, sir. Sir, we don't think that resolves the issue at all. Of the two workers that are present here today, sir, one of them hasn't been served properly, sir. So that is a ratio of 1 out of every 2 workers on the evidence we've got in front of us, sir, or on the evidence that will be available to us today, 1 out of every 2 workers hasn't been served properly, sir, and we would say that that is as preposterous a proposition as saying that: Well, since there has only been a problem raised with Mr Chapman's service we will just assume that all the others were served correctly.

PN387

I don't think the applicant is able to satisfy you today, sir, that those employees in schedule A, sir, have been served correctly because there is certainly direct evidence available today, sir, that that is just simply not the case, that Mr Chapman hasn't been served correctly, despite assertions when they first appeared in front of you today, sir, that indeed he had been served correctly.

PN388

So we would say, sir, in those circumstances no orders should be made against individual workers until the person that served them individually is able to come and stand in front of you today, sir, and give evidence that indeed they did serve that worker at this time on this day with this copy of the application and the notice of listing and after being subject to cross-examination, sir, if they're able to then satisfy you that those workers have indeed been served only then should orders issue against individual workers.

PN389

So we would say, sir, if the class of employees was included, that is employees of United KG Pty Limited whose work is regulated by the certified agreement that that is a more appropriate way to proceed but there should be no orders issuing against individual workers if an order is to issue today, sir, and that is an issue that is still in contention between the parties. Thank you, sir.

PN390

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN391

MR McLAUGHLAN: Yes. Clearly, sir, if an order is to be issued against any individual it has to be incumbent to be clear that that individual has been made aware that an application has been made against him and unless that can be identified and proven then the order should not be issued against that named individual. Thank you.

PN392

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN393

MR BLACKBURN: Your Honour, it is not necessarily a matter you need decide now. Mr Keep, who is the company's representative, who was involved in the process of packing the envelopes that went out to employees is available to give evidence and it can be dealt with on that basis, but I do come back to the point that the union officials were ringing around on the weekend speaking to each other to cancel the meeting.

PN394

I am quite sure that if they had another example it would have come forward. I think your Honour can draw an inference from that and I invite your Honour to do so.

PN395

THE DEPUTY PRESIDENT: Are you suggesting to me that I should not decide this issue now but defer it until further submissions and evidence?

PN396

MR BLACKBURN: No, your Honour, I am saying that you are able to draw the inference now from the fact that no other employee has been forthcoming. Given that the union has been ringing around on the weekend, there have been discussions with the employees in order to cancel the meeting that was scheduled for this morning. No other employee has come forward or been mentioned and I think from that you are able to draw the relevant inference, which is that there was also a presumption of regularity which is that the employees would have been served.

PN397

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN398

MR McLAUGHLAN: Sir, really I haven't been able to contact the CEPU member but if that person has not been served, and I don't know whether he has or hasn't, if that person has not been served it is not surprising that he wouldn't be here to say that he has not been served if he didn't know and I certainly haven't rung around contacting anyone with regards to it.

PN399

THE DEPUTY PRESIDENT: Thank you. The Commission has had the opportunity to hear further submissions from the parties in relation to the question of the application for an order for substituted service and a further proposal that has been put by the applicant in relation to a proposed amendment to an interim order, which is, the Commission is informed, to be sought in this proceeding.

PN400

It would be of concern if in relation to the particular group of workers concerned, which is 49, that any or a number of those employees had not received the appropriate documentation and did not have an opportunity to make an appearance in this proceeding, but in relation to the issue earlier I indicated that my preliminary thinking was, in relation to those 49, that would not be appropriate, as I understood it on the basis of what had been said, that they should be capable of being enjoined to any order in the circumstances of what has been done by way of service.

PN401

If in fact the respondents are able to indicate that any individual employee in relation to the group of 69 has not been properly served then the Commission would wish to hear that, but in the absence of any such representations being made then the Commission will proceed on the basis that, for the purpose of the hearing, the method proposed by the applicant will be followed, however, the question of any order that the Commission may or may not make remains an open question and the terms of that order, if made, remain to be decided.

PN402

Having said that, unless there are any requests for any clarification of what is a complex issue, I intend to proceed to deal with the basis of the conduct of this hearing, given that there are seven applications before the Commission and what is very much the need for the proper conduct of this hearing, is for the position to be clarified in relation to all seven of these applications as to what it is the Commission is being asked to do and I will seek submissions, given that there are three applications under 170MW, three applications under section 170MWA and one application under section 127 of the order, in which these applications should be dealt with and the reasons for that. Mr Blackburn?

PN403

MR BLACKBURN: Yes, thank you, your Honour. Your Honour, we did anticipate the manner in which this matter would proceed today. There are obviously some procedural issues that needed to be ventilated and we're conscious of the time that is available and we are also very conscious of the need to have the workers return to work. We're also conscious that they are meeting tomorrow at 12 midday and therefore our immediate target is to obtain interim orders that can be served on those workers which they can discuss at their meeting tomorrow and hopefully that will procure a return to work after that meeting.

PN404

That means, your Honour, that the orders would need to issue tonight. Now, in terms of, to perhaps provide a skeletal outline of the applications and how they relate to one another, our primary position submission is that the bargaining periods have in fact ended by virtue of section 170MV(b) of the Act and 170MV(b) says that:

PN405

The bargaining period ends if any of the following events occurs. (B) The initiating party...

PN406

which in this case, are the two unions:

PN407

...tells the other negotiation party, United KG, in writing that the initiating party no longer wants to reach an agreement under Division 2 or 3 with that party or those other parties.

PN408

Now we say, your Honour, that that in fact occurred on 22 July when the unions provided United KG with the response to the various matters outlined in a summary document that United KG had filed in the Commission on 19 July. Your Honour will recall, the matter was before you on 19 July under section 170NA and United KG filed a summary document. And I have a copy of it here, your Honour, and it will be proved through the evidence of Mr Pretsel. And I will hand up a copy now for convenience so that we can refer to it.

PN409

MR EDMONDS: Sir, I would ask that this evidence - - -

PN410

THE DEPUTY PRESIDENT: Mr Edmonds?

PN411

MR EDMONDS: Sir, I would ask that all this information go through the witness, sir, and not be handed up until such time as the - - -

PN412

THE DEPUTY PRESIDENT: I beg your pardon?

PN413

MR EDMONDS: Sir, I would ask that all of these issues - or I would say, sir, that all of these issues should be the subject of evidence, sir, and they shouldn't be handed up until such time as Mr Pretsel is in the witness box to actually attest to these documents.

PN414

THE DEPUTY PRESIDENT: Mr Blackburn?

PN415

MR BLACKBURN: Your Honour, I only seek to have the document marked for identification at this point. It is merely for the purpose of explaining the particular applications that we seek and how they relate to one another. So I don't seek to tender the document at this point, simply to have it marked for identification and it can be dealt with as my friend indicates, quite properly, through Mr Pretsel's evidence.

PN416

But the point was, your Honour, as your Honour knows, that this document was filed in a section 170NA proceeding before your Honour. It set out the company's view of the respective claims of the parties and at paragraph 15, it sets out the claim, being the union's claim, for a State EBA that - - -

PN417

THE DEPUTY PRESIDENT: Please continue.

PN418

MR BLACKBURN: Thank you, your Honour. For a State EBA, having initially been raised by the AMWU on 16 April. There is the commentary in the second column from the right that the AMWU and the CEPU are using Federal protected industrial action provisions, yet seeking a State EBA. And the United KG position is to renew a Federal section 170LJ EBA. So there can be no doubt that what is being said there is that the union's position is that it wants a State EBA, a State registered EBA, an EBA registered in the Western Australian Industrial Commission. United KGs position is that it wants to renew its Federally registered certified agreement.

PN419

Now, your Honour directed the unions, both of them, to provide a response. And that response is attached as a schedule to the 170MWA application. If I could refer your Honour to that 170MWA application, or any one of them; does your Honour have a copy of the application?

PN420

THE DEPUTY PRESIDENT: Indeed.

PN421

MR BLACKBURN: 170MWA?

PN422

THE DEPUTY PRESIDENT: Yes, thank you.

PN423

MR BLACKBURN: Thank you. The last page, your Honour, is the reply that was provided on the letterhead of the AMWU but you will note that it is from Mr Currie and Mr McLaughlan. So this is in response to your direction that the union indicate its position in writing on each of the matters identified in the summary document provided by the company in the course of our conference. At item 15, the unions, both of them, say:

PN424

Claim from members is to ultimately have a State certified agreement.

PN425

What they are saying there, that is their position. They were asked: what is the union's position? And they come back and they say; we want a State certified agreement. Now, they have used the term, certified agreement, but your Honour shouldn't be troubled with that because we will bring evidence to show that the union's officials, and in fact, my friend, commonly uses the term, State certified agreement, to refer to an agreement registered in the State Commission, even though technically, under that Act, it is referred to an agreement that is registered rather than certified.

PN426

But advocates that appear before you, Mr Saunders, in fact, and my friend, and if a point is made about it, I will produce transcript to this effect, regularly refer to documents to be registered in the State Commission as State certified agreements. So the union is saying there that it wants a State EBA. And that is, your Honour will note at the top of that letter, it says:

PN427

This document is intended to be read in conjunction with the document tabled before the Commission on 19 July.

PN428

Which is the first document. So if there is any ambiguity about the union's facsimile memorandum, it is resolved by referring to the earlier document. Now, if your Honour lines the two up, there is absolutely no doubt here that the unions are saying: we do not want a Federal agreement, we want a State agreement. That is what we want.

PN429

They have been offered a Federal agreement by United KG. The unions have said, no, we want a State agreement. And I should add, your Honour, that Mr Currie of the union said much the same thing before you in a conference a few days after that facsimile and there will be plenty of evidence that union officials have said the same thing, both before and after that facsimile was sent.

PN430

Now, what we say, your Honour, is that suffices for the purpose of 170MVB. And the effect of that is to terminate the bargaining periods. What the union has done there is told United KG that it no longer wants to reach agreement under Division 2 or Division 3. What it has said there is that it wants a State agreement. And we say that that brings the bargaining periods to an end. And that is why the section 170MWA applications have been filed, to obtain orders that the unions not be permitted to initiate further bargaining periods.

PN431

Now, your Honour, if we are wrong about that, and we say that there is no doubt that we are right - - -

PN432

THE DEPUTY PRESIDENT: Mr Blackburn, in relation to 170MVB?

PN433

MR BLACKBURN: Yes.

PN434

THE DEPUTY PRESIDENT: Who is the initiating party?

PN435

MR BLACKBURN: Well in each case, your Honour, it was the two unions who are sitting here today. They served the notices initiating the bargaining periods and those notices will be put in evidence. And the other negotiating party is the employer. Now, the definitions, your Honour, are found earlier in the Act in section 170MI. And that answers your Honour's question, I think, 170MI(1), it describes who the initiating party is and then in 170MI(3) it describes what is meant by the negotiating party. But I don't think it will be in contest, your Honour, that the initiating party was each of the unions with their respective bargaining notices, notices to initiate bargaining periods.

PN436

MR EDMONDS: Sir, if it helps, we are certainly prepared to concede that for the purposes of 170MVB, the AMWU, I am not sure about the CEPU, but certainly the AMWU is the initiating party for the purposes of those proceedings, sir.

PN437

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN438

MR BLACKBURN: Thank you, your Honour.

PN439

THE DEPUTY PRESIDENT: Unless, Mr McLaughlan, did you wish to make a submission?

PN440

MR McLAUGHLAN: Yes, sir, we are the initiating party for this hearing.

PN441

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

PN442

MR BLACKBURN: Thank you, your Honour, I am grateful to my friends for that. So that is why, your Honour, the 170MWA applications have been filed. Your Honour, the 170MW - and the intention with those applications, because those applications are filed on the presumption that the bargaining periods have already ended, the intention of those applications is to seek orders under 170MWA(4) and (5) to prevent the unions from initiating new bargaining periods until 30 March 2005, which is the end of the summer period.

PN443

And the reason for that, your Honour, is obvious given what we have already said today about the risk of power cuts and the need to complete the Western Power maintenance program into - there will be much more evidence about that, the need for Western Power to be at full generating capacity over the summer period.

PN444

THE DEPUTY PRESIDENT: Mr Blackburn, why is it then that three section 170MW applications have been filed?

PN445

MR BLACKBURN: Out of an abundance of caution, your Honour. If for some reason you were to find against us on the 170MVB point, if for some reason you were to find that the bargaining periods were still in existence, then we would say, the 170MW applications would be pressed and we would seek to have the bargaining periods terminated there on either of two bases, either of the bases that the union has not been genuinely negotiating, or, the basis that the industrial action is threatening the lives, health, safety or welfare of the population. So they are filed out of an abundance of caution.

PN446

And they fall away once your Honour comes to the view that the bargaining periods have, in fact, been terminated. So then we are left with simply the 170MWA and the 127. Now, the 127 orders, your Honour, quite obviously it is not sufficient for the bargaining periods to be ended and orders to be made that the unions cannot issue new bargaining periods. These employees have shown a propensity in the past to take industrial action, even during the term of a certified agreement and there will be evidence about that from Mr Pretsel.

PN447

So, we say that we need the 127 orders to guarantee that the employees do return to work to enable us to complete that - or to enable, yes, the United KG to complete the maintenance program for Western Power and to maintain the generators over the summer period. So, th 170MWA orders, to prevent the initiation of new bargaining periods. And the 127 orders to prevent further industrial action in order to return to work.

PN448

Now, your Honour, there are certain tests about which your Honour will have to be satisfied, obviously, before being able to make orders under any of those sections. And that will require a calling of some considerable evidence. We would say that your Honour could actually be quite quickly satisfied on the basis of one or two witnesses but because of the importance of the matter, we will deal with this in a way that is unassailable and that will take, we would imagine, by the time the witnesses are called and my friends may have some witnesses, could well take 3 or 4 days of hearing.

PN449

Given the urgency of the matter with generators going down as quickly as they are, that is why we seek the 170MW - sorry, the 127, subsection (3)(a) interim order today so that there can be a return to work while this matter is being determined. We say that imposes no great imposition on the employees. The interim 127 order falls away immediately the application, the substantive application is determined. Certainly the balance of convenience favours a return to work and I think your Honour can certainly be satisfied it now, already, but certainly by the end of the day, but even now on the submissions and the matters you have heard, that they are seriously arguable matters here. And those are the tests for an interim order, that there be a seriously arguable matter. And then that you turn to the matter of convenience.

PN450

And the two are not necessarily distinct. If it is a case where the balance of convenience is very high, then even though there is a barely arguable case or an only just arguable case, the fact that there is a strong balance of convenience may justify the granting of an interim order. But in this case, clearly these matters are significant and very arguable. And we say in the end, compelling.

PN451

There are lots of reasons why this industrial action is participating at the moment is unprotected, and we will come to that. One of the primary reasons is simply that the bargaining periods have ended by virtue of that notice that the unions have been good enough to give us.

PN452

THE DEPUTY PRESIDENT: Just before you continue, I would like to just very quickly ask, Mr Edmonds, if you will be contending that that is correct, that the bargaining periods have ended, or not?

PN453

MR EDMONDS: No, sir, the bargaining periods have not ended. No notice is required by section 170M - sorry, if you bear with me, sir. No notice has been given as required by section 170MVB of the Act, sir, which requires the initiating party to tell the other party, or each of the other parties in writing, that the initiating party no longer wants to reach an agreement under Division 2 or 3 with the other party or those other parties. No notice has been given in accordance with section 170MVB, sir, hence the bargaining periods are still in place, sir. Hence industrial action is protected.

PN454

THE DEPUTY PRESIDENT: Thank you. Is that your submission too, Mr McLaughlan?

PN455

MR McLAUGHLAN: Yes, clearly the bargaining periods have not ended. We are still operating under the bargaining period.

PN456

THE DEPUTY PRESIDENT: Thank you. Please continue, Mr Blackburn.

PN457

MR BLACKBURN: Yes, thank you, your Honour. I am actually grateful for that because I can deal with that point straight away. The proposition that no notice has been given, if one looks at 170MVB, your Honour, all that is required is for one party to tell the other, in writing. There is no prescribed form of notice. Not even a requirement for a notice per se. Simply one party to tell the other in writing. It is a very informal requirement, as long as it is in writing. And we say that has been achieved. Now, that can be the subject of submissions later, perhaps, but there is another even more compelling reason why the action is unprotected, your Honour. And that is, it will be most apparent to you from even just the material that I have already put up. From the submission that was made to you by Mr Currie on, I think it was 3 August when he stood before you in the section 170NA proceeding and said the union wanted a State registered agreement.

PN458

From the document they filed that I have just shown your Honour, in response to your direction that they outline their position saying they wanted a State agreement, there will be evidence of previous statements by Mr Currie and Mr Saunders, saying they wanted a State agreement. And there is no dispute about what is meant by State agreement. They responded to this particular document which clearly establishes that we are talking about an agreement registered in the State Industrial Commission. So - - -

PN459

THE DEPUTY PRESIDENT: But Mr Blackburn, doesn't that provision 15 in the memorandum refer to the word, "ultimately?"

PN460

MR BLACKBURN: Yes, it does, your Honour. But that has to be read in context as well because what your Honour directed, was that the union set out their position in relation to this application in relation to the current dispute. Two parties were trying to negotiate an enterprise agreement. This was an outline of one party's view of where the two parties were at. One party was seeking a Federal agreement, the other party was seeking a State agreement. You asked the unions to set out what their position was and they came back and said: we want a State agreement.

PN461

Now, they put the world, "ultimately," in there. The question that you asked them to respond on, was, what was their position in relation to the current negotiations. So, and we say, any ambiguity can be cured by reference to that earlier document and to the context in which that document was written. But your Honour, there is another reason why these actions are unprotected. There are all those additional statements, which I will refer your Honour to and evidence of which will be adduced through the evidence of Mr Pretsel.

PN462

And leaving aside the 170MVB notice, and whether or not that fax is sufficient, the memorandum is sufficient, for the purpose of section 170MVB. Regardless of that, there is no doubt, your Honour, that the action has been taken for the purpose of pursuing a State agreement. And when one goes to section 170ML, which confers an entitlement to protected action, your Honour can see that the entitlement is only conferred for one purpose. 170ML(2) says:

PN463

During the bargaining period an organisation of employees, member, officer, an employee, etcetera, is entitled...

PN464

Sorry, your Honour, I will drink. 170ML(2)(e):

PN465

Is entitled for the purpose of supporting or advancing claims made in respect of the proposed agreement.

PN466

The proposed agreement, if we trace this section back, is the agreement that was proposed in the bargaining notice. When the bargaining period is initiated, the party sets out and states they are pursuing an agreement under Division 2 or 3 of the Act. So the only purpose for which action can be protected, is for supporting or advancing claims made in respect of a Federal agreement.

PN467

Now, if that is not sufficiently clear, your Honour, from the language of the section, it is made abundantly clear in the decision of the Federal Court in Drummond.

PN468

THE DEPUTY PRESIDENT: But before you proceed with that decision, that I had asked the parties to do was to give me some - or I had intended to ask.

PN469

MR BLACKBURN: Yes.

PN470

THE DEPUTY PRESIDENT: A broad overview of how the Commission should deal with the seven applications.

PN471

MR BLACKBURN: Well I am nearly at the end of that, your Honour.

PN472

THE DEPUTY PRESIDENT: Please continue then.

PN473

MR BLACKBURN: Yes, sir. Well what I was going to say, and perhaps I can go to that decision later. That decision clearly states what an overview is already obvious, that is that, action is only protected if it is taken for the purpose of pursuing a Federal certified agreement. In this case, the action has been taken for the purpose of pursuing a State registered agreement and for that reason alone, it is unprotected. There are a whole range of other reasons why it is unprotected.

PN474

It is certainly illegitimate. It is illegitimate because they are trying to use the Federal processes to seek a State registered agreement. It is illegitimate for a range of other reasons and I will come to that but to try and come back to your Honour's question, I apologise for moving away from it, because of the time constraints today, because of the urgency of the matter, we propose that the interim 127 order application be dealt with first. Your Honour, it is not an overview you need to hear the whole of the evidence for that to occur. Your Honour only has to be satisfied that there is an arguable case and that the balance of convenience favours the granting of the order.

PN475

Once that is out of the way, then we would proceed with the 170MWA application, which is premised on the argument that the bargaining periods have, in fact, been terminated. If your Honour were against us on that and if your Honour was of the view the bargaining periods have not been terminated, we would proceed with the 170MW application. And if we were successful there, and even if we were not, we would then seek a final order in respect of section 127. Your Honour, that is the order in which we propose to deal with the matters. And as I say, for reasons of expedition and shortage of time, we would deal with the interim 127 order first.

PN476

THE DEPUTY PRESIDENT: So to clarify then, you are putting that you would propose to deal with first, an interim section 127 order and if that issues, you would then propose that there then be further hearing to deal with - - -

PN477

MR BLACKBURN: Well that the hearing would continue, your Honour. And certainly any evidence that was taken at this point of the proceedings would be evidence in the whole matter so that the whole matter would continue. But basically we are seeking an interlocutory application, if you like, in the form of a interim order part way through the proceeding to preserve the position, if you like, pending the outcome of the proceeding.

PN478

THE DEPUTY PRESIDENT: And in that continued hearing, in relation to the section 170MW applications?

PN479

MR BLACKBURN: MW, yes.

PN480

THE DEPUTY PRESIDENT: You would not intend to proceed with those if an order issued under 127 as an interim order. You would then be seeking a, to use a phrase, a permanent order?

PN481

MR BLACKBURN: We would.

PN482

THE DEPUTY PRESIDENT: Or a longer term order?

PN483

MR BLACKBURN: We would but we would also be seeking declaratory orders under either 170MWA or 170MW, depending on your Honour's view of whether the bargaining period has ended or not, to either prevent, if your Honour feels that the bargaining period has terminated, to either prevent any new bargaining periods. Or if your Honour feels that the bargaining period is still in existence, to terminate the bargaining periods and then prevent any new bargaining periods.

PN484

THE DEPUTY PRESIDENT: And you are putting it that the 170MW would precede the section 127 application?

PN485

MR BLACKBURN: Well, I don't know that that particular order matters. Perhaps - and the difficulty, your Honour, is that unless the bargaining periods are terminated, if your Honour finds they are still in existence, then there is still a capacity for the employees to take protected industrial action. So that is why it is equally important that those matters be dealt with quickly and if the 127 interim order is in place, then our focus would then turn to terminating the bargaining periods if your Honour hadn't already found they had been terminated so that - and obtaining declarations that no further bargaining periods could be issued.

PN486

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN487

MR EDMONDS: Yes, sir. It is rather a convoluted issue, sir. I suppose, sir, I want some clarification as to the applicant as to the jurisdictional basis upon which they seek the 127 orders, sir, because it seems to me that they are not in a position, sir, to stand in front of you today, sir, and say that the industrial action has happened - sorry, is happening, or is threatened, impending or probably in relation to the negotiation or proposed negotiation of an agreement if they say there is no bargaining period in place.

PN488

Sir, I presume, sir, that they are relying upon 127(1)(c) to say that the work is regulated by an award or a certified agreement and that is the jurisdiction basis upon which they seek the 127 orders.

PN489

MR BLACKBURN: That is absolutely right, your Honour.

PN490

THE DEPUTY PRESIDENT: Yes, thank you, Mr Blackburn. Mr Edmonds?

PN491

MR EDMONDS: Yes, sir. Thank you, sir. It is probably appropriate then to deal with the interim 127 order first, I think, before dealing with the MWA. Actually, maybe sir, it is more appropriate to deal with the MWA application, sir, because that seems to be the crux of their argument, sir. What seems to be their primary argument is that the bargaining period has been terminated pursuant to MWA and - sorry, has ended pursuant to 170MVB of the Act. So maybe that is the appropriate way to go, sir, but I mean, I am certainly in your hands, sir. And as I would say, sir, it is not our application in any event so maybe the applicant should run it in the way they see best and we will just wait and see what they put up. And that is probably about it.

PN492

THE DEPUTY PRESIDENT: But Mr Edmonds, you are putting it to me that in relation to 170MVB, you are submitting that the bargaining period has not ended, is that correct?

PN493

MR EDMONDS: Well, sir, our position is, in actual fact, that there is currently protected action in place which means that pursuant to section 127(5)(A) that the 127 order won't apply or won't prevent that protected action from taking place. So that is certainly our first argument, sir, that there is protected action in place. So and the 170MWA application is without any merit what so ever. So the only application that is genuinely got any merit in these circumstances, sir, is the 170MW application which seems to be the last one on everyone's mind. And it would appear to be the fall back position of the applicant but, sir, it is not up to us to tell them how to run their matters, sir. So may be if they proceed with their 127 order first, sir, then when that gets knocked on the head, may be they will eventually get to the 170MW, sir, and we will deal with that as the case may be.

PN494

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn, you do understand that the argument that you are going to put under 170MV is going to be contested and if that is the case, then the Commission will need to decide whether, in fact, the bargaining period has ended or not. And if the Commission decides that it has, then that certainly would appear to be consistent with the proposed course of action that you are seeking to put in terms of dealings sequentially with the applications. But if, to the converse, it decides that in fact that the bargaining period has not ended, then what would your position be at that point?

PN495

MR BLACKBURN: Your Honour, we certainly don't stand here on one leg, we stand here on about six. There is a long list of reasons why this industrial action is unprotected. The union has made a series of mistakes, some more significant than others. The issue of the pursuit of the State agreement has two aspects. One is that by saying as much in the memorandum of 22 July they have terminated the bargaining period, the action therefore must be unprotected, there are no bargaining periods in place.

PN496

Even were that not the case or if we were wrong about that, the action is not protected action because they have - nonetheless, leaving that fax, the memorandum aside, they have not been taking action in pursuit of a Federal agreement. They have been taking action in pursuit of a State agreement. So forget about 170MV for the moment. The action has been taken in pursuit of a State agreement, not a certified agreement. They were offered a certified agreement, they said: no, we want a State agreement. And for that reason, it is not protected and therefore, we seek a 127 order to stop this unprotected action.

PN497

Now, there is a range of other reasons why it is also unprotected. They have engaged in concert with unprotected persons, they have had secondary boycotts so that attracts 170MM. They have refused to negotiate genuinely so that attracts 170MP. Their 170MO notices that they served had the wrong union named on them, they actually had the State union named on them, not the Federal union. Perhaps because they weren't quite sure on any particular point what they were doing.

PN498

MR EDMONDS: Oh, come on.

PN499

MR BLACKBURN: Well it does. It has the State union named and the notices, the particulars in the section 170MO notices weren't sufficiently precise as is required by the authorities, the Federal Court authorities on that. But we don't have to go down to the technicalities of the matter, your Honour. The most egregious matters are simply this, that the union has been perpetrating a sham. Both unions have. They have deliberately tried to use the processes of the Federal Commission to obtain - - -

PN500

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN501

MR McLAUGHLAN: Sir, there's a couple of comments been made about the unions being offered Federal agreements and said they want State agreements or what ever. I can't say what's necessarily taken place, discussions or negotiations that I have been at but I don't think that has been a legitimate position put to the CEPU. The CEPU has a number of agreements with United KGs and every single one of them are Federal agreements. I note there is reference made to this 22 July thing but from my recollection, what was asked of the unions was to give what the current position was with regards to the negotiations where everything was, nothing is agreed until everything was agreed.

PN502

THE DEPUTY PRESIDENT: Mr McLaughlan, I hear what you are saying but what Mr Blackburn was doing was answering a question of mine, which was, how would he proceed to deal with all of the seven applications.

PN503

MR McLAUGHLAN: Yes, sir, but he kept making references saying that the unions are having a sham and all the rest of it.

PN504

THE DEPUTY PRESIDENT: I understand that.

PN505

MR McLAUGHLAN: And what I am saying is that I am wondering if that is what Mr Pretsel will bring to his evidence. I suppose we should wait and hear that.

PN506

THE DEPUTY PRESIDENT: Yes.

PN507

I think, well, Mr Blackburn can finish his answer to my question, unless Mr Edmonds has a point of order?

PN508

MR EDMONDS: Yes, sir. There is an issue to raise, sir. Certainly, there has been an allegation that industrial action is not protected because we've engaged in industrial action in concert with unprotected persons. Sir, I've been flicking through the 127 application, sir, and I can't say I see where that is pleaded as a ground to the 127 application we're dealing with today, sir. Certainly, if new grounds are being added, sir, then we would seek an adjournment to go away and take further instructions on those issues. If we're going to argue upon the grounds that have been listed in the 127 application, then let's get on with it.

PN509

THE DEPUTY PRESIDENT: Thank you.

PN510

MR BLACKBURN: I'm - - -

PN511

THE DEPUTY PRESIDENT: Mr Blackburn?

PN512

MR BLACKBURN: Yes, I note your Honour's comments earlier in the day about not trying to be too legalistic. In fact, my friend has objected to my appearance on the basis, presumably, that I would impose a sense of legalism and now my friend is trying to hold me to the pleadings, which is something, your Honour, which occurs only in courts, not in Tribunals. So, I'm not quite sure - but I - he is right in this sense, and that is that that particular point has not been identified in the section 127 application, obviously, because of the time in which that

PN513

application was put together.

PN514

It is noted in that application that we could advance other grounds in the Commission and, if need be, we will rely on that point. However, I can give my friend this comfort, that the other arguments in favour of this action being unprotected are so conclusive that, your Honour, really we're not going to be getting down to items 5 and 6 and 7 on the list.

PN515

MR EDMONDS: Sir, I - - -

PN516

THE DEPUTY PRESIDENT: Thank you. Does that conclude your submission in relation to my question about the applications and the sequence and your approach?

PN517

MR BLACKBURN: No, your Honour, no, because - - -

PN518

THE DEPUTY PRESIDENT: If that hasn't enabled you to finish.

PN519

MR BLACKBURN: Yes, I will get back to that.

PN520

THE DEPUTY PRESIDENT: Mr Edmonds, first, I do want to get quickly on with the conduct of the substantive hearing.

PN521

MR EDMONDS: We're happy to get under way, sir. I'm just trying to clarify precisely what grounds are being put forward today, sir, as to why the industrial action is not protected, sir, so I know what I'm responding to, sir. So, if we could just get a clarification of precisely what grounds and which paragraphs of the application are being relied upon today, sir?

PN522

THE DEPUTY PRESIDENT: Yes.

PN523

MR EDMONDS: Then we will be able to proceed.

PN524

THE DEPUTY PRESIDENT: Well, given that the applicant hasn't yet actually commenced with its case, these are really just a preliminary clarification to assist the Commission of how to deal with seven applications, which is a complex matter.

PN525

MR BLACKBURN: I think, your Honour - - -

PN526

THE DEPUTY PRESIDENT: I'm being assisted by the parties on how you see the proceedings being conducted and you're about to conclude, are you, Mr Blackburn?

PN527

MR BLACKBURN: Well, I'm trying to, your Honour, I'm trying to. It is not assisting with the interruptions. I'm trying to address your Honour's point, which was that if you were against us 170MB(b) then there might be some difficulty with the section 127 application and my response to that is, no, that is not the case at all because the evidence is unassailable, particularly for an interim order, your Honour. It is an interlocutory test. All you need is an arguable case. The evidence is unassailable, particularly at that level, that these unions have been pursuing a state agreement.

PN528

Now, Mr McLaughlan may want to resile from what he put his name to. There was another occasion on which Mr Currie in an - and this is all in Mr Pretsel's evidence. There was another occasion on which Mr Currie said that he was representing the CEPU and also indicated they were after a Federal agreement, but I mean we - a State agreement. But we've got to remember that Mr McLaughlan is representing one employee and - - -

PN529

THE DEPUTY PRESIDENT: Well, Mr Blackburn, I'm satisfied that you have got a clear view of how you wish to conduct your case.

PN530

MR BLACKBURN: Yes.

PN531

THE DEPUTY PRESIDENT: That you have an approach involving the seven applications, that you are aware of the Commission's desire to understand the basis for how you will approach the presentation of your case, in conjunction with the seven applications, and some of the possible outcomes in relation to particular applications. And I'm satisfied that Mr Edmonds and Mr McLaughlan have given me their views on how the case should be conducted and, therefore, I am of a mind to proceed, forthwith, with the case.

PN532

However, I think this would be a convenient time to have a brief adjournment, for refreshment purposes, of approximately 10 to 15 minutes. The Commission would have in mind to commence by 10 past 4. We will now adjourn.

SHORT ADJOURNMENT [3.56pm]

RESUMED [4.15pm]

PN533

THE DEPUTY PRESIDENT: Mr Blackburn?

PN534

MR BLACKBURN: Yes, your Honour.

PN535

THE DEPUTY PRESIDENT: Are you ready to present your case now?

PN536

MR BLACKBURN: To open, your Honour, yes. Well, there is a further matter that arose during the adjournment, a small matter, but I will raise it now and, if required, it can be further dealt with through the evidence of Mr Keep. Your Honour, I'm advised as a result of - I'm not sure how it occurred, I'm instructed it was a breakdown in communications between our client and my instructing solicitors but, in any event, there are a couple of amendments to the schedule to the document that was provided to you today, that is the schedule of the service, the employees in schedules (a), (b) and (c).

PN537

In - well, it is called attachment (a) to that document, I'm advised that employee number 64, Jeffery Voke, was served at the wrong address and in fact was only properly served today. So, that is why he appears there because the people involved thought they had served him but it was the wrong address. So, therefore, we certainly take Mr Voke off the list of employees who, in our intended draft order, would be named individually. And, similarly, your Honour, as a result of incorrect addresses documents apparently had been - sorry, your Honour, that is my wife and I've just rejected her, so I will deal with that when I get home. I apologise, your Honour.

PN538

Yes. In attachment (b), employee number 11, Darrell John Green, also was not served until this morning. The names in attachment (b) probably don't matter much now because we're not seeking to name those employees individually any way, but we do strive to ensure that the material we put before your Honour is absolutely correct. Employee number 21, Grant Douglas Howard, was served at the correct - was served today and then in attachment (c), James Owen Roberts was served today but obviously we don't press an interim order against him, as we've said. And Wayne Clifford Loftas, in attachment (c), I'm advised, was in fact served on the weekend but, your Honour, because of what we said earlier on, we don't press an interim order against him either. So, the result will be, your Honour, that in the interim application, the interim order that we are preparing, the only difference will be that Mr Voke will come off the list of those named individually.

PN539

THE DEPUTY PRESIDENT: Thank you.

PN540

MR BLACKBURN: Your Honour, there was a further matter which arose in the application for an order of substituted service. There were two matters really to be addressed there. One was this issue of the employees who had been served by having it left a their door. But there was another matter and that was that there was an amended application filed and the difference between the amended application and the original application was that the amended application had four additional employees. And what we are seeking from you is an order in terms of paragraph 3 of the draft order of substituted service, which basically says that that amended application doesn't need to be served on everybody else because the only difference is the addition of four names.

PN541

That is the substance of paragraph 3, it deals with a different subject to paragraph 2. Yes, it is paragraphs 2 and 3, your Honour, that would - - -

PN542

THE DEPUTY PRESIDENT: I had indicated earlier, Mr Blackburn, that I hadn't intended to proceed to deal with the order for substituted service.

PN543

MR BLACKBURN: I'm sorry, your Honour.

PN544

THE DEPUTY PRESIDENT: Perhaps I wasn't clear about that.

PN545

MR BLACKBURN: No, no, you were. I wasn't sure whether your Honour discerned that there were two, but obviously you had, and so I apologise for that. There are two issues there that - one of those issues, in our view, has been dealt with by the way that we will reformulate the draft 127 order. The other issue will still need to be dealt with at the end of the day, we think. It is just basically a direction that we don't have to serve the original - sorry, the amended application on all 120 employees served with the original application but - - -

PN546

THE DEPUTY PRESIDENT: Perhaps what might assist is if you are able to provide to the Commission, and perhaps in hard copy and e-mail, a corrected schedule of employees who it is intended that the applicant would wish to be cited by name, individually, in the orders which are sought for section 127(3)(a)? I wonder if that might be the simplest way to go?

PN547

MR BLACKBURN: Yes, your Honour, certainly. That still doesn't deal with the other point, your Honour, which is an entirely separate point that I'm trying to put and, again, that relates to the amended application. There were four employees not named on the original application at all who received an amended application and we're just seeking to avoid the need to serve that amended application. That is the only difference, the four more names in the schedule on the 120 or so employees who got the first one.

PN548

THE DEPUTY PRESIDENT: So, Mr Blackburn, the substance of the amended application is essentially the same as the substance of the application?

PN549

MR BLACKBURN: Absolutely, absolutely. The only difference is the names of those four additional employees on the second one in the schedule.

PN550

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds, do you have a view on that?

PN551

MR EDMONDS: Well, sir, other than to re-state our earlier concerns about service generally, sir. I suppose it makes little material difference as to whether the schedule that was attached to the application that was initially served contains all the correct names or whether that was subsequently altered, sir. But what I certainly would say, sir, is that we certainly re-state our concerns about the service and it is interesting to hear, sir, a further concession that there are further workers that have not been served properly on this list of employees.

PN552

After being assured that it was only Mr Chapman that had not been served properly now we've got another three or four or even five employees that are subsequently, it is discovered, that they have not been served correctly either, sir, and, indeed, it would do a great injustice to those workers if orders were issued against them in circumstances where they haven't been served correctly and, indeed, we re-state our concerns, sir, and re-state our contention that evidence must be led to demonstrate conclusively that service was effected upon those workers before any orders can issue against those individual workers.

PN553

THE DEPUTY PRESIDENT: Thank you.

PN554

MR EDMONDS: Thank you, sir.

PN555

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN556

MR McLAUGHLAN: Yes. Thank you, sir. I support the position of Mr Edmonds.

PN557

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN558

MR BLACKBURN: Your Honour, in that case, given my friend's concession that there is probably little turns on this point about the need to serve the original 120 with the amended application, perhaps the easiest way would be, if that is consented to and if your Honour is so of a mind, for us to provide you with an amended order for substituted service, dealing only with that small point about there being no need to serve the amended application on the first 120? Then do - - -

PN559

THE DEPUTY PRESIDENT: Yes. I don't think it would be necessary, if I heard you correctly, to suggest that there be an amended application for an order for substituted service. I don't think that would be necessary to make such an amended application but simply to proceed, noting the objections of the respondents, to, as I've just indicated, provide the Commission with a complete, corrected schedule of the employees who are to be cited.

PN560

MR BLACKBURN: Yes. Yes, your Honour, but that is a different point. Perhaps I can put as simply as this. Can we have a waiver from the requirement to serve the amended application on the first 120 employees?

PN561

THE DEPUTY PRESIDENT: Yes. Given the submissions of the respondents I'm satisfied it is not necessary for that technical requirement to be complied with but I have noted at the same time the continued objections of the respondents. Please proceed, Mr Blackburn.

PN562

MR BLACKBURN: Thank you, your Honour. Your Honour, while I'm not - opened the case, in one sense, I assume and will proceed on the basis that everything that has been put so far this morning is before you because, in one way or another, much of my opening has now been put and it wouldn't serve any purpose to repeat it. So, I will - - -

PN563

THE DEPUTY PRESIDENT: Please proceed on the basis that the matter should be heard quickly but that you should also make sure that your case is put clearly and as persuasively as you're able to do so?

PN564

MR BLACKBURN: Yes.

PN565

THE DEPUTY PRESIDENT: Mr Edmonds?

PN566

MR EDMONDS: Yes, sir. Certainly, sir. There is a housekeeping issue that has arisen in these circumstances, sir, in relation to the two shop stewards that have attended from Collie, sir. The time is now 4.30, sir, and, indeed, it is some two-and-a-half to three hour journey back to Collie, sir. I wonder if we could seek an undertaking from the applicant to provide them with accommodation today, sir, so that they don't need to drive back to Collie in circumstances that could start to get dangerous, sir, or, alternatively, if that undertaking can't be given, sir, then we would certainly seek to adjourn these proceedings for another day, so they could actually be present, sir.

PN567

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN568

MR BLACKBURN: Yes. Well, it is one ploy after another, your Honour, to try and obtain an adjournment and prevent the matter from proceeding or, at least, tide it over to another day. No, we are not in a position or - to provide accommodation for the respondents' witnesses, that is a matter for them. If the respondents wish to expedite the matter, given that what we're seeking, your Honour, is an interim or interlocutory order, if we were in the Federal Court, and I put it this way because in one sense, I don't wish to generalise, but the Federal - this Commission has processes which, for very good reason, are more informal than those that exist in the Federal Court. The Federal Court is relatively legalistic.

PN569

But even in the Federal Court if you appear, seeking an interlocutory injunction, it would be dealt with on affidavit or be dealt with on the papers with no opportunity for cross-examination. Only very rarely is there cross-examination in an interlocutory proceeding and the reason for that is obvious, your Honour, to enable interlocutory matters to be dealt with expeditiously. Now, that rule or that practise could equally be accommodated here. The Commission is obliged under the Act to try and proceed to deal with matters as promptly as possible. We are seeking an interim or interlocutory order.

PN570

In our view it ought be sufficient if we can put some affidavit evidence before you, some very brief oral argument on the basis of the affidavit evidence. At the end of that, your Honour should be more than satisfied that there is a seriously arguable point or many seriously arguable points and that the balance of convenience overwhelmingly favours the issue of an order, the 127 order can be issued and we can all head home.

PN571

THE DEPUTY PRESIDENT: Yes. Mr Edmonds?

PN572

MR EDMONDS: Well, sir, we would say that that is certainly not an appropriate course of action to adopt in these circumstances, if what Mr Blackburn is proposing is that they ambush us at the last minute with affidavits and don't give us the opportunity to cross-examine and certainly don't give us the opportunity to introduce affidavit evidence of our own? If that was the course of conduct they intended to follow, then that certainly could have been put to us on Friday, to give us the opportunity to prepare affidavits over the weekend, to effectively respond to the application. Of course, that hasn't been done, sir, and we would object to affidavit evidence being led at all.

PN573

We would say that if there are witnesses to give evidence today, they should give - they should get in the witness box and give evidence out of their own memory and not by way of affidavits, sir. Then they should be cross-examined in relation to that evidence and that is the way this matter should proceed, sir. We would certainly object to any proposal to deal with this matter by affidavit, sir, but we would re-state our concerns with respect to the shop stewards who've been present today, sir. The time is starting to drag on, sir, and they do have a long trip back to Collie.

PN574

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN575

MR McLAUGHLAN: Yes, your Honour. We would oppose affidavit evidence being given. There is no opportunity to obviously cross-examine that and if they've got evidence that Mr Pretsel or others want to put, then they would put it - at least we've got the opportunity to deal with that.

PN576

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN577

MR BLACKBURN: This is a game and I know that the Commission is obliged to afford procedural fairness to parties, but the respondents are not taking this matter seriously. They are using every ploy, now the ploy of, well, you can't bring in affidavit evidence and the conduct of proceedings here has got to proceed on a higher legal plane than it would, even in the Federal Court. You must put all your witnesses and we must have an opportunity to cross-examine. We must have an opportunity to bring rebuttal witnesses. I refer your Honour back to those 127 decisions where the union said it wanted to bring rebuttal evidence, said it wanted to cross-examine but permanent 127 orders were made over those objections.

PN578

The union is, as I indicated, your Honour, seeking to impose a higher standard than would apply even in the Federal Court. If it wants to work through the evidence and cross-examine then we're here and we can sit for as long as your Honour can. If your Honour has other commitments then we say that your Honour is entirely able and ought, given the urgency of the situation, proceed to accept the affidavit evidence and any submissions that the parties may care to make on that affidavit evidence. And if the union is not able to adequately - in a position to call witnesses, and we accept that it may not be, then the interim order can nonetheless be made on the tests that apply to interim and interlocutory matters and on the basis of the tests that are set out in those decisions.

PN579

THE DEPUTY PRESIDENT: Thank you. Well, the Commission wishes to proceed and to proceed as quickly as practicable, as required by the Act, but the Commission also ha a duty to act in a fair way. What I would wish to indicate is that no parties should abuse any of the procedures and that the matter should be dealt with as informally as possible but I would indicate that you should proceed, Mr Blackburn, to put your case as you think appropriate, with affidavit evidence, but Mr Edmonds and Mr McLaughlan will have the opportunity to put their submissions in relation to that, in any particular circumstance, during the hearing. Mr Edmonds?

PN580

MR EDMONDS: Sir, I might also point out, sir, that this affidavit has yet to be provided or these affidavits have yet to be provided to the respondents, sir, and, certainly, if they've been available since 11 o'clock this morning, sir, then there would have been ample opportunity to give it to us, to this point, sir. This is application by way of ambush, sir. The proposal to, indeed, not call any witnesses, just to simply introduce affidavit evidence and make submissions on that basis, sir, is outrageous and certainly hasn't been disclosed to us to this point. Those affidavits should have either been provided on Friday or first thing this morning when they became available, sir, and quite frankly, sir, we would say in the strongest possible terms, sir, evidence has to be given from witnesses in the witness box, with an opportunity to the respondents to cross-examine those witnesses.

PN581

MR BLACKBURN: Well, your Honour, we weren't proposing that we proceed without the respondent and yourself having an opportunity to read the affidavits. Obviously, affidavits, when tendered, must be read and there is various ways in which they can be read. One is by the advocate reading them on to the transcript or perhaps, more pleasantly, by an adjournment to allow the parties to read the affidavits and that is the normal course and that is the way that we would propose to proceed.

PN582

THE DEPUTY PRESIDENT: Please proceed.

PN583

MR BLACKBURN: Thank you, your Honour.

PN584

THE DEPUTY PRESIDENT: The Commission will deal with each matter as it proceeds, accordingly.

PN585

MR BLACKBURN: Thank you, your Honour. Your Honour, the matter, as you will have gleaned from the previous conferences and what has been said today, concerns about 120 employees of United KG engaged to work primarily at the Muja but also at the Kwinana Power Stations. Those employees have been on strike since 5 July and through their officials they've indicated that they will remain on strike until at least 13 September and by that time they will have been on strike for 10 weeks. They're on strike for claims which will cost, in the applicant's estimation, 22 per cent in the first year and 32 per cent over three years but that needn't bother us today.

PN586

The employees are not only striking, your Honour, but there is also evidence of black bans being imposed to prevent employees of other contractors working on the generators at Kwinana. Indeed, your Honour has already heard some evidence of that in the Keifer matter which is before you for certification. There was a Mr Chamberlain on that occasion who was examined by - - -

PN587

MR EDMONDS: Sir, that is not disclosed in the application that is in front of us today, sir. There is no notice to us that the evidence of Mr Chamberlain was going to be relied upon, sir, and quite frankly, sir, we think you should disregard those submissions in relation to the evidence of Mr Chamberlain, sir. It hasn't been disclosed to the party, we haven't been afforded an opportunity to be aware of, to take instructions in relation to those issues.

PN588

THE DEPUTY PRESIDENT: Mr Blackburn?

PN589

MR BLACKBURN: This is a unique proposition that we have to disclose to the union, in an application of this sort, the evidence that we're going to call? I'm not aware of any evidence that they're going to call, your Honour. It is a new proposition that Mr Edmonds is seeking to instil, no doubt trying to assist the provision - assist the Commission.

PN590

MR EDMONDS: But the grounds upon which the application is brought have to be disclosed, sir, and quite frankly I don't believe that is disclosed in the application.

PN591

THE DEPUTY PRESIDENT: Please proceed, Mr Blackburn, and it is important that the hearing allow the Commission to hear and understand the positions of the parties.

PN592

MR BLACKBURN: Yes. Your Honour, as you will appreciate, these applications were put together very quickly and the evidence in relation to secondary boycotts is one of the matters that we will rely upon but it is not the primary matter that we rely upon. The primary matter really is the fact that the action is unprotected because not only the bargaining period is terminated, we say, but it has also been taken for the purposes of procuring a state agreement under the auspices of the - under the guise of the protected action provisions in the Federal Act. And also, as we've indicated, it is illegitimate for a range of reasons but we will come to that.

PN593

But we say there is evidence of black bans being imposed to prevent employees of other contractors working on those units and, as I say, your Honour has heard some of that evidence in the Keifer matter. Mr Edmonds was counsel for the AMWU or agent or advocate for the AMWU in that matter. He didn't challenge the evidence that was given on that occasion and the evidence broadly was that Keifer had 19 or so employees but the numbers had dropped to nine because the United KG employees and union had placed bans on work being performed on those units at Muja. But that is evidence that your Honour has already heard in the presence of Mr Edmonds but we don't - - -

PN594

THE DEPUTY PRESIDENT: What is the relevance, Mr Blackburn, of that to the application under 127(3)(a)?

PN595

MR BLACKBURN: In two ways, your Honour. One, it goes to the protected nature of the action because if you engage in action in concert with persons who are not protected then the action is not protected, by virtue of 170MM of the Act. And, secondly, it is relevant because it goes to the illegitimacy of the action. They're not just taking action by refusing to maintain those generators. They're actually trying to prevent other people from working on those generators. Your Honour, normally the action 170MM, your Honour.

PN596

THE DEPUTY PRESIDENT: Yes. So, in effect, you are saying that the industrial action involves secondary boycott which it should not do?

PN597

MR BLACKBURN: Yes, yes. But there is an abundance evidence in respect to some matters. There is not as much evidence in respect of other matters. That is one of the bases on which we say the action is unprotected. But in the end, your Honour, your Honour does not have to decide conclusively whether the action is unprotected or not. If your Honour has a view that the action may not be unprotected, you are most entitled and should, in our view, make the interim order. In fact, for the purpose of an interim order, it is only an arguable case, the test. Your Honour doesn't have to make a finding for the purpose of today's matter.

PN598

THE DEPUTY PRESIDENT: Are you putting to me that section 127(3)A does not require the Commission to be satisfied that 127(5)A operates?

PN599

MR BLACKBURN: Yes, I am, your Honour. I would say that 127(3)A, it refers to an interim order. The tests for interim orders are well established, both in this Commission and elsewhere. And I am sorry that I ought to have made that point. But the test for interim orders, both under this Act and elsewhere, are quite clear. And it is a twofold test. Whether there is a serious question to be tried and the balance of convenience. And the considerations are not discrete. They can be viewed in combination. That is, a strong balance of convenience may assist where the case is not particularly strong. But in this case, we say we have both. A very strong case and, secondly, the balance of convenience clearly favours the issuing of an order.

PN600

THE DEPUTY PRESIDENT: Do you have Full Bench of this Commission to support that proposition you just put?

PN601

MR BLACKBURN: No, your Honour. It is a relatively recent provision, as your Honour is aware. There is certainly plenty of authority on the question of the principles relating to interim orders in this Commission. And I could obtain those. But that section is relatively new. I wouldn't have thought it was a proposition that would be contested but perhaps, as everything else is, it will be. But if the same level of satisfaction had to be met, there would be no point providing for interim orders. What would be the purpose if you had to achieve the same level of satisfaction as for a permanent order? Once you achieve that level of satisfaction, you might as well make the permanent order.

PN602

Completely defeat the purpose of the provision which is to enable the Commission to respond quickly to situations such as this. So, returning, your Honour, there are a range of reasons why we say the actions aren't protected but the employees are on strike. They have been on strike for 10 weeks. There will be some evidence of black-bans. Normally, all of that wouldn't be particularly unusual but as in this case, your Honour, as we have indicated, these employees are engaged to maintain and repair the generators that provide electricity to the South West and connected system.

PN603

Every year Western Power requires maintenance to be done around this time on its generators to meet its own statutory requirements and to minimise the risk of those generators breaking down during Summer. It is important that by the time Summer comes, Western Power has all of its generators up and running and fully maintained. And there are also some statutory requirements to that effect. Now, the maintenance program in Muja began in about April this year. There are eight generators at Muja. Three are currently down for maintenance. They have been dismantled. They are units M2, M3 and M4. And each of those has a capacity of 60 megawatts. There are six generators at Kwinana. As I indicated earlier, three of those have broken down. Units K5, K1 and K6.

PN604

THE DEPUTY PRESIDENT: Can you repeat that, please.

PN605

MR BLACKBURN: Yes.

PN606

THE DEPUTY PRESIDENT: In Kwinana.

PN607

MR BLACKBURN: Six generators at Kwinana. Three have broken down. K5 is 200 megawatts and it went on 30 July. K1 is 120 megawatts and it went last night, 8 August. K6 is 200 megawatts and it went last night, 8 August. The fourth generator, K4, 120 megawatts is now critical and expected to go down at any time. And also on the weekend there was a further loss of 100 megawatts at Worsley, again, I think on 8 August. So, that in the last 9 or 10 days four generators have gone down: K5, K1, K6 and the 100 megawatt at Worsley. And K4 is critical. After K4 goes down, Western Power will have lost 740 megawatts of power in the space of ten days or so.

PN608

And that is in addition to what is already down at Muja because of maintenance. The net result will be that Western Power's total system capacity once K4 goes down will be 2441 megawatts and there will be evidence about that from Mr Doug Aberle.

PN609

THE DEPUTY PRESIDENT: Mr Blackburn, I am cognisant that you have made this submission - - -

PN610

MR BLACKBURN: Yes.

PN611

THE DEPUTY PRESIDENT: - - - on a number of occasions and I understand the reason for that.

PN612

MR BLACKBURN: Yes.

PN613

THE DEPUTY PRESIDENT: That the weight that you believe the Commission should attach to it. And I wonder if perhaps if this submission is of particular importance, if it could be provided in writing to the Commission and to the respondents.

PN614

MR BLACKBURN: It certainly can be, your Honour. Obviously not - - -

PN615

THE DEPUTY PRESIDENT: In a brief form.

PN616

MR BLACKBURN: Yes. Obviously not today or not for the purpose of the interim order. But certainly during the course of these proceedings we would be most happy to provide that in writing. Absolutely.

PN617

THE DEPUTY PRESIDENT: To ensure there is no misunderstanding, mis-hearing.

PN618

MR BLACKBURN: Yes. I am grateful for that invitation.

PN619

THE DEPUTY PRESIDENT: Perhaps uncertainty on any particularly important point.

PN620

MR BLACKBURN: Yes. I appreciate the invitation, your Honour, and certainly we will do that. That figure of 2441 megawatts compares with peak demand in July which was 2418 megawatts. Current demands are running just a bit over, I think, 2300 megawatts. So, as I have indicated before, we are on the cusp. If another generator goes after K4, then I am instructed that there will be, as I have indicated, load shedding or, in other words, black-outs. So, for that reason there is clearly an urgent need for these employees to return to work and lift their bans. But there is another risk. That is only the short term outlook relating to the risk of power cuts now.

PN621

But what happens now, your Honour, also will affect what happens in Summer. Because of the lead time required to get those units up and running. The units that are being maintained at Muja. And to complete the other maintenance work at Muja. If these employees don't return to work and lift their bans, then I am instructed there will be power cuts this Summer. It is only a matter of when, where and for how long. Now, Summer is still 4 months away but it will take more than 4 months to complete the maintenance program. It will take more than 4 months to get all those generators up and running. Already it is too late for the maintenance work to be completed in sufficient time.

PN622

The community will now be well into Summer with Western Power which is, of course, affectively the sole electricity provider operating at less than full capacity. Even if the strikers return to work today, your Honour, the maintenance program would not be completed until 20 December. 2 years ago Summer demand for electricity peaked in Perth on 19 December. Every day the employees spend on strike pushes the completion of the maintenance program further into Summer. Already Western Power has cut back its planned maintenance to the bare minimum and that required by statute. The original maintenance program can't be done any more because of the need to have all units up and running by Summer.

PN623

All that could be done to shorten the program has been done. No more short cuts can be taken. And the earliest that those units could be returned to service now, as I have indicated, is 20 December. That assumes the strikers went back today. It also assumes no loss of productivity as a result of a number of employees who may have resigned and other employees having to be employed and inducted and so forth. Now, the units that are still to be serviced can't all be serviced at the same time. They must be serviced sequentially so as to maintain an adequate power supply. And so, your Honour, it follows from all of this that unless these strikers are returned to work, there is a very high risk of black-outs occurring not only now but also in Summer.

PN624

What happens now will affect what happens in Summer because of the lead time involved. Your Honour, the effect of power cuts in some respects is obvious. But in other respects, it is not. We can all guess that if power cuts occur, then traffic lights will go down. We can all guess that houses will be without power for cooking meals. But there are many, many situations that until this case I was not aware of. There are a number that I were. But some of the evidence that will be put before you in relation to the impact on people's lives of power going down. Traffic lights not working. Last year there was a fatality at a set of lights which were not working during a power black-out.

PN625

The effect on nursing homes and hostels and small children in schools. People at home on oxygen concentrators and dialysis machines and other essential apparatus. People with spinal disabilities who don't have the ability to regulate their own body temperature. They are, therefore, heavy reliant on heating and cooling. Loss of power to a funeral parlour with various consequences including the deterioration of bodies in a cool room. I guess it could be said against us that they don't count because they are already dead and, therefore, not part of the population. But it is a serious matter. Electric water pumps. Loss of water. People who rely on electric water pumps in outlying areas. Not that far out.

PN626

Wanneroo, Chittering, Bullsbrook. Who then lose any drinking water or water to wash with or flush the toilet. People with small children who can't sleep during hot periods. Food being spoilt. Children's parties being ruined. A child having to watch its salt water fish in a salt water aquarium die because the filter failed, couldn't be used, during a black-out.

PN627

MR EDMONDS: Sir, we have been told that this matter is urgent to deal with. Do we need to go through the list of things that need power in order to operate? I don't think we do. And I don't think that salt water fish dying is necessarily something that needs to be in front of the Commission today, sir. Maybe we can just push on with the substantive issues.

PN628

MR BLACKBURN: Well, your Honour, the significance of that was that they belong to a 10 year old girl who could do nothing but watch those fish die. And that is one of the many cases of heartache and frustration and detriment to the community which occurs when power goes out. We cannot possibly imagine all of the scenarios. Families losing sleep. Young children - people becoming agitated. Family arguments. There will be evidence about all of those things. So, it is not just the economic loss to industry. When we get to the 170MW arguments and 170MWA arguments, we will be relying on the endangerment to the safety, health and welfare of the population and their lives.

PN629

MR EDMONDS: Sir, if it assists, we are happy to concede that the loss of power is a serious matter, sir, and maybe we could push on from these issues.

PN630

THE DEPUTY PRESIDENT: Mr Blackburn?

PN631

MR BLACKBURN: If the concession is, your Honour, that 170MW(3)A is made out, then I am grateful for that. Is that the concession?

PN632

THE DEPUTY PRESIDENT: I understood Mr Edmonds to be saying that he accepts that power cuts are a serious issue.

PN633

MR BLACKBURN: Yes.

PN634

MR EDMONDS: And it is certainly not necessary, sir, for the purposes of section 127 to establish the grounds under 170MW(3)A, sir. So, maybe we could leave them until we deal with the 170MW application.

PN635

MR BLACKBURN: Yes, your Honour, I will move on in any event.

PN636

THE DEPUTY PRESIDENT: Before you do, I would like to ask you something which perhaps you were going to come on to later.

PN637

MR BLACKBURN: Yes.

PN638

THE DEPUTY PRESIDENT: And that is, what is the intended duration that you would be seeking for an interim order?

PN639

MR BLACKBURN: Yes, the duration - until the determination of this matter, your Honour.

PN640

THE DEPUTY PRESIDENT: So, that would be a duration without a specified time?

PN641

MR BLACKBURN: Well, your Honour, the section 127(3)A more or less dictates that, I think, or one of the sections there. It might be 127(3)B. I am indebted. It says:

PN642

An interim order made under (3)A ceases to have effect if the application is determined.

PN643

THE DEPUTY PRESIDENT: Which would assume that the application is determined. Is that correct?

PN644

MR BLACKBURN: Yes, yes. Well, I presume it will be in one way or another, your Honour. But certainly - well, yes, I presume it will be determined. Your Honour, the requirements of section 127, and we have already discussed the requirements for an interim order, but the jurisdictional requirements for section 127, of course, are that industrial action - that it appears to the Commission. There is the question of whether you are satisfied that industrial action is happening. Well, clearly it is. It is not being denied that industrial action is happening. The workers are out. That industrial action is threatened. Well, clearly, it is.

PN645

There will be evidence that the employees, through their officials, have indicated they will be out until 13 September. That it is in relation to work that is regulated by a certified agreement. Now, I don't know if that is going to be contested, your Honour, but the certified agreement in question will be put in evidence. And, finally, that the applicant is a person withstanding to make such an application, being in 127(2)B a person who is directly affected or is likely to be directed affected by the industrial action. So, all of the jurisdictional requirements are made in that regard. It remains for you to be satisfied on a discretionary basis as to whether or not to make the order and in this case, an interim order.

PN646

Now, there is the overwhelming balance of convenience because of the need to repair the downed generators and not only repair the ones that have gone down, but continue with that maintenance program and complete that maintenance program to ensure that there are not, then, further black-outs in Summer. So, there is clearly a very strong public interest case in support of making a 127 applications. But, your Honour, there are a raft of other reasons why you should be making these applications as well, and they relate to the conduct of the unions in this case. Now, the 127 order will not apply to protected action. Your Honour doesn't need to determine whether the action is protected or not.

PN647

But it is a consideration. And various Full Benches have said, or at least one or two, have said that if the action is clearly protected, then it would be an unusual situation in which a Member of the Commission would make a 127 order and the cases might even go a bit higher than that. But in this case, the action is not only clearly protected, we say it is clearly unprotected. But the only thing we have to raise for an interim order is that it is arguably unprotected. The action is unprotected for a range of reasons. And one of them is the fact that we say the bargaining period has been terminated by virtue of section 170MV(b).

PN648

And we have dealt with that point already, so I have no need to re-visit that. But the other issue is that even leaving that aside, 170MV(b) aside, the evidence is unassailable that the unions have been pursuing a State registered agreement, on their own admission. The document they have filed in the Commission. The statement by Mr Currie in the Commission. And numerous statements outside the Commission. And several statements outside the Commission about which evidence will be brought. It has been a point of contention in the negotiations. The employer has said: No, our position is we want a Federal agreement. The union has said: We want a State agreement.

PN649

They can't now deny that they have not been saying that. Well, they may try. That will be a matter for the evidence. As a result, the action they are taking is not protected because it is not action in pursuit of a Federal agreement. And the authority for that, your Honour, is the Federal Court decision in FH Transport and another. I will hand up copies of that case. This is a decision of his Honour Drummond J. And you will note, your Honour, that in the headnote it was held - (iii), section 170ML(2) which is the section that confers protected action status, was intended only to protect the union where it takes action in the context of negotiating a Division 2 or 3 of Part VIB agreement.

PN650

And then only where it takes the action for the purpose of advancing specific negotiations. There were actually two propositions that his Honour was dealing with here. One is that it is only protected if you take it in pursuit of a Federal agreement. And the second was that you couldn't have more than one purpose for taking the action, which is a slightly different question. But he said: You can't have more than one purpose. He said: Firstly, (a) - first thing, it has to be taken in pursuit of a Federal agreement. Secondly, you can't have more than one purpose. It is only where it takes the action for the purpose of advancing specific negotiation. And that will become clear as we go through the judgment.

PN651

THE DEPUTY PRESIDENT: Before we proceed to go through the judgment, can you indicate to me your time estimate of the duration of your case?

PN652

MR BLACKBURN: Well, it is a question of satisfying your Honour and I would be glad to be stopped whenever your Honour came to the view that there was sufficient to make a section 127(3) interim order. The timing of the case, the case could run for days, your Honour, in one sense. We have the opening submission to make, to indicate to your Honour the relevance of the evidence that we called. And there are a sequence of witnesses. Now, even if your Honour was disposed to sit to midnight, which I doubt, we wouldn't get through those witnesses today. My submission is that you don't need to hear all those witnesses.

PN653

It would be enough, once you see the affidavit of, for example, Mr Pretsel, given the concession that is made about the effect of power cuts and the impact of power cuts, and your Honour can take judicial notice of those things anyway. So, your Honour would be entitled, in my view, to stop almost at any point once your Honour was satisfied there was sufficient basis for an interim order.

PN654

THE DEPUTY PRESIDENT: Thank you.

PN655

MR BLACKBURN: But I certainly wouldn't be finished today. I certainly will finish my opening submissions in probably about 15 minutes, I suppose, and then it is a question of how long the evidence will take, your Honour, and we have a list of witnesses. We wouldn't be able to conclude those tonight.

PN656

THE DEPUTY PRESIDENT: Did you say you would not be able to do that?

PN657

MR BLACKBURN: No, we wouldn't be able to conclude our list of witnesses tonight. So, it would be a question of us saying to you at some point when your Honour resolved that we could go no further, that there was enough there for you to make that interim order. And then we would seek to serve that interim order on employees so that they could be in a position to discuss it at their meeting tomorrow.

PN658

THE DEPUTY PRESIDENT: Am I correct in recalling you to have said earlier that you were seeking an interim order today?

PN659

MR BLACKBURN: Yes. Absolutely. Yes.

PN660

THE DEPUTY PRESIDENT: What is your submission in relation to if the Commission was persuaded to issue an order, an interim order - - -

PN661

MR BLACKBURN: Yes.

PN662

THE DEPUTY PRESIDENT: - - - of whether that was today or tomorrow?

PN663

MR BLACKBURN: Your Honour, there is the opportunity today because the employees are meeting tomorrow. And so that presents an opportunity. Every day lost is also important. There is every chance, in our submission, that the 127 order will be ignored so that we will be required to spend further time prosecuting it or enforcing it in the Federal Court and we think that it is quite probable that it is only then that there will be a return to work. So, we really need the order today so that we can get on with it. And so that the employees can consider it tomorrow.

PN664

The level of satisfaction, your Honour - the reason the Parliament put in a provision which specifically enabled you to make a 127 interim order is precisely to deal with this scenario where you haven't reached the level of satisfaction required for a permanent order but you think there is an arguable case. You think the balance of convenience and the other discretionary considerations warrant the issuing of an order and you proceed to make it. And, your Honour, to be completely blunt, we think that you were in that position some time ago. We are only seeking an interim order and there is no detriment to the employees if that order is granted. On the other hand, it may just keep the lights on.

PN665

THE DEPUTY PRESIDENT: Does that submission indicate that it is your view that the lights might go out today or tomorrow?

PN666

MR BLACKBURN: Your Honour, you have seen from the comments that we have made, the submissions we have made, the rate at which some generators have gone down in the last week or so. Three over the weekend. And I am instructed by Western Power that another one, K4, is critical. K4 is expected to go at any time. Once K4 goes, then it would only take one more. So, yes, I think it is an unnecessary risk to take. We think that this is the exact situation that the Parliament put in the provision to allow the Commission to make interim orders. I can think of no more urgent situation other than perhaps hospital staff going on strike or refusing to treat critically injured patients.

PN667

This is exactly the sort of situation that warrants such an order. It is not a very high standard. The balance of convenience is overwhelming. And we think that there is more than enough already. I mean, your Honour, even simply at the notice that the union provided raises, must in our submission raise, a strongly arguable case that the bargaining period has been terminated. We don't need evidence about that. They are not denying they sent it. They cannot deny they sent it. And it is a question of just looking at the document and construing it. That, of itself, is sufficient. It also indicates, that document, and what Mr Currie said to you in conference in the 170NA matters, albeit in the affidavit of Mr Pretsel which you are entitled to look at.

PN668

You don't have to offer the union an opportunity to cross-examine. I refer you back to those other cases. All of that is more than sufficient to establish an arguable case that the action is unprotected and the balance of convenience is obvious. So, your Honour, we think that you are well in that position to make that determination now or at any time soon and there is no need to wait until tomorrow. An interim order is precisely for this purpose.

PN669

THE DEPUTY PRESIDENT: I am going to interrupt you at this point to seek a very specific submission from Mr Edmonds in relation to that submission, that the Commission is overdue in not already having formed the view that an interim order should be made under section 127 and - - -

PN670

MR EDMONDS: Well, we would say - - -

PN671

THE DEPUTY PRESIDENT: - - - that the basis for so doing is that there be an arguable case and that the balance of convenience favours the granting of such an interim order. Mr Edmonds, on those two points.

PN672

MR EDMONDS: Yes, sir, thank you, sir. If I could just say in the first instance, sir, we don't agree that the test for the issuing of an interim order is that of an arguable case and balance of convenience, sir, and we draw a distinction between section 127(3A) interim order provisions, which talk about the Commission making an interim order under this section, and a provision such as section 170NG of the Act, sir, which talks about:

PN673

An eligible Court may grant an injunction requiring a person not to contravene or to cease contravening a penalty provision...

PN674

And we draw a distinction between an injunction, sir, and an interim order under this section, sir. For an interim order under this section, sir, we would say that it is still necessary to make the same deliberations that you must make, sir, when issuing a final 127 order, sir, that is you have to be satisfied that jurisdiction exists, that the application has been brought properly and that it is appropriate for the Commission to exercise its discretion in these particular circumstances.

PN675

So we would say, sir, that the test is still the same essentially but it provides a mechanism for the Commission to perhaps provide a relief to an applicant, I suppose, where the broader section 127 order may take some time to actually resolve but we would say in those circumstances, sir, that the test is still the same. Also, sir, you must be satisfied that there is no protected action in place or that the action in place is probably not protected.

PN676

We say that that is the consideration you must make, sir. While it is not up to the Commission to make a final determination as to whether the action is protected it is certainly an issue, sir, that you must consider, sir, and we would say, sir, if the action is clearly protected then there would have to be very peculiar circumstances indeed for the Commission to actually issue orders pursuant to a section 127.

PN677

What we would further say, sir, is that if the action is protected, sir, then clearly under section 127(5A) then the order will be of absolutely no effect in any event, sir, because the action is protected, then the section 127 orders can't apply to it. We would say, sir, that the action in this circumstance is clearly protected. So to that end, sir, we would say that no orders should issue in these circumstances. I can't recall the second issue you asked me to address, sir.

PN678

THE DEPUTY PRESIDENT: The second issue, I think you have addressed, was in relation to the arguable case, proposition, and in relation to the balance of convenience proposition.

PN679

MR EDMONDS: Well, sir, we would say that the action is protected, sir, so that test doesn't come into it in any event, sir. We would further say, sir, that in relation to the submission that there is sufficient information in front of you now to make an interim order, sir, we would say that to this point there has been no evidence put in front of you. There has been submissions from the bar table, there has been some documents handed up from the bar table, there has been some assertions about various damage that is going to occur as a result of power blackouts, which are yet to actually eventuate, but at this point in time, sir, there is no evidence in front of you upon which you can reach a decision that an interim order should issue in these circumstances.

PN680

There is only an application, there is no evidence that has been put in front of you and until that evidence is put in front of you, sir, you're not able to actually make an order in these circumstances. Now, we've heard lengthy submissions from Mr Blackburn all day about the power crisis and about all the problems that are occurring and he continually makes accusations about the union trying to delay this matter but quite frankly, sir, his submissions seem to drag today, sir, and to venture into areas where it is not necessary to venture into, sir.

PN681

If he has got any evidence to lead, sir, then he should lead it and stop making assertions from the bar table and actually get into the substance of the case.

PN682

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn - or Mr McLaughlan, did you - I wasn't sure if you were looking for a call?

PN683

MR McLAUGHLAN: Well, no, I am happy to go along with that.

PN684

THE DEPUTY PRESIDENT: No, no. All right.

PN685

MR McLAUGHLAN: But as far as to say with regards to those two points we likewise would say that clearly our action is protected industrial action and again re-state that there has been no evidence to indicate otherwise.

PN686

THE DEPUTY PRESIDENT: Mr Blackburn?

PN687

MR BLACKBURN: Thank you, your Honour. I am moments away from seeking leave to file and rely on two affidavits, one from David Pretsel and one from Western Power. So that will happen in a minute or two if my friend can just contain his excitement. Now, if I return to this decision, your Honour, because it is important, the clearest bases on which the actions are protected once you see the evidence, and apart from the fact that the bargaining periods have been terminated, is that they have been taken in pursuit of the State agreement.

PN688

What Drummond J said here at paragraph 50 on page 369, at the bottom of the page on 369, actually mine has got 50 next to it:

PN689

In my opinion, so long as there is a bargaining period within section 170MI(2) in existence between ...(reads)... agreement within Division 2 or 3 of Part VIB -

PN690

so there is the first reference to Division 2 or 3 of Part VIB -

PN691

with respect to employees of a particular employer any industrial action taken -

PN692

and I will just fill it out, the relevant parts -

PN693

during that bargaining period directly against the particular employer it ultimately will be protected action.

PN694

That is the first time that he indicates that he is talking about action taken in pursuit of a Federal agreement. At the bottom of page 370 his Honour says:

PN695

Industrial action will only be protected action within section 170ML if, among other things, it is engaged in by a union which is negotiating a proposed agreement with a particular employer...

PN696

He then goes on in the next paragraph, he says:

PN697

The meaning of the phrase for the purpose of, in this context, raises an issue of statutory ...(reads)... is action engaged in by a union directly against the relevant employer is always a question of fact -

PN698

this goes to the question of multiple purposes -

PN699

whether industrial engaged in by a union against the particular employer with respect to whom the union ...(reads)... agreement necessarily involves another question of fact.

PN700

He then says, and this is important, on page 371 at (5):

PN701

As to the constructional question I consider that it is the subjected purpose of the union, that is its actual ...(reads)... of all relevant facts and circumstances.

PN702

Then at line 10:

PN703

Only if action is engaged in for the purpose of advancing negotiations or a Part VIB agreement is it protected.

PN704

There is then some further commentary until the bottom of the page, your Honour, three lines from the bottom his Honour says:

PN705

The subsection was intended only to protect the union where it takes action in the context of negotiating a Division 2 or 3 of Part VIB agreement and then only where it takes that action for the purpose of advancing specific negotiations.

PN706

Over the page again, and your Honour the whole decision requires reading but I will just go to the clearest parts of it, page 372 about four paragraphs down in the second part of the paragraph he says:

PN707

That is, in my view, inconsistent with the intention of Division 8 which is to legitimise industrial action subject to detailed controls and only as an encouragement to the settling of conditions of employment by specific agreements of the kind provided for by Divisions 2 and 3 of Part VIB.

PN708

So his Honour says it several times throughout the judgment that section 170ML only confers protected action status where the action is taken for the purpose of negotiating a Federal certified agreement and here, as you will see in a minute, the action has been taken for other purposes as well. Now, my friend asked earlier on a quite proper question, he said he wants to know the bases on which it was being said the action was unprotected.

PN709

I have given him two already, one is 170MV(b), the termination of the bargaining period, the second is that it has been taken for a purpose other than advancing or pursuing claims for a Federal certified agreement. So it is not covered by 170ML. The third is that the union and its members have engaged in secondary boycotts in concert with unprotected persons, that is 170MM, the fourth is that they have failed to genuinely try to reach a Federal certified agreement before taking action, that is 170MP.

PN710

The fifth is that they served 170MO notices. These are the notices of industrial action which had the name of the wrong union on them, your Honour. Now, that is not insignificant in this context because the union that was named in the notices was the State union and, lastly, the last reason why we say the action is unprotected is because they have failed to particularise in those notices who would participate in the stoppages or the nature of the stoppages.

PN711

Really, your Honour, for present purposes we don't need to go past the first two points, which is the question of the bargaining period being terminated and, secondly, the fact that all of this action has been pursued as far as the union is concerned of a Federal agreement, but if your Honour does need to go further there is plenty more there to be had. Of course, your Honour, all of that lends itself to the illegitimacy of all the action.

PN712

The union has in this case initiated bargaining periods by serving - both of them have, by serving bargaining notices which say on their face they're seeking a Federal certified agreement and yet through the negotiations in the Commission in documents filed in the Commission they have said: We're seeking a State agreement, before you, your Honour. Mr Currie the other day said he was seeking a State agreement and they filed that other document that is attached to the application, the 170MWA application.

PN713

The reason for that is this, the union doesn't like certain aspects of the State legislation. If it proceeded in the State legislation it wouldn't be able to take protected industrial action and the State Commission could arbitrate very quickly. The employer could simply say under the State Act: I refuse to bargain with you and then after, I think it is a period of 30 days or so, the Commission is entitled to arbitrate. Now, they don't want arbitration, they want the benefits of Federal protected action but they don't want a Federal agreement.

PN714

The reason they don't want a Federal agreement is because Federal agreements can be enforced, whether under 127 or section 170MN. They would much rather have a State agreement because they're much harder to enforce. So what we've seen here is, in my submission, a duplicitous course of conduct, abusing the privileges of the Federal Commission for the purpose of obtaining an agreement in a State Commission.

PN715

That goes to the heart of the illegitimacy of the action. Quite apart from that, your Honour, they're also in breach of the certified agreement by refusing abjectly until today to participate in conciliation. That, we say, also not only are they in contravention of the certified agreement but as a consequence of that we would say that they haven't been genuinely bargaining. Then there are the other issues of their conducting the secondary boycotts and so forth. So there are a range of issues which render this action illegitimate and quite apart from that we come back to the public interest considerations.

PN716

THE DEPUTY PRESIDENT: Mr Blackburn, not all of those, as I understand your submissions, are relevant to the application pursuant to 127(3A), is that correct?

PN717

MR BLACKBURN: No, they are, your Honour, because they go to, if you like, the illegitimacy of the action but in any event we say in the end you have a discretion and you might think it is enough, the risk, the power is more than enough to make the 127 orders and we say it is, but we say this case has much more to it than that and the conduct of the union in purporting to initiate bargaining periods Federally when it really wants a State agreement is reprehensible conduct and that also goes to the reasons why a 127 order should issue.

PN718

The Commission should not allow its processes to be abused by parties who are seeking and have stated before you are seeking State agreements but are just here to use the amenities until it is convenient for them to leave. So, your Honour, on that basis - - -

PN719

THE DEPUTY PRESIDENT: Mr Blackburn, in relation to your submission that the risk to power may be sufficient reason to grant an interim order under 127(3A).

PN720

MR BLACKBURN: Yes.

PN721

THE DEPUTY PRESIDENT: What is the basis for that submission?

PN722

MR BLACKBURN: Well, your Honour has a wide discretion. It is unfettered by the provisions of section 127 and you are entitled to take into account the public interest. You are entitled also to have regard to all that has occurred which your Honour is aware of through the section 170NA conciliation - attempted conciliation proceedings. You're entitled to have regard to the fact the employees have been out for six weeks.

PN723

I think your Honour the other day stated a concern when you issued your recommendation that the unions didn't appear to be in a hurry. You're entitled to have regard to the fact that your recommendation was ignored. You're entitled to have regard to all those factors, your Honour, and of course I keep coming back to the point that at the moment we're only talking about an interim order in any event but your discretion is broad, you're entitled to have regard to all of those matters either together or singly and we say any one of those would justify an order being made in this case.

PN724

THE DEPUTY PRESIDENT: What provision of the Act, Mr Blackburn, would so empower me?

PN725

MR BLACKBURN: Well, your Honour, section 127 confers a discretion on you and that discretion is not confined by the section. It says:

PN726

Provided the jurisdictional requirements of 127(1) are met -

PN727

and I don't think there is any serious dispute about those -

PN728

provided the applicant has standing under 127(2B) -

PN729

and there is no dispute about that -

PN730

then the Commission may by order under 127(1) give directions that the industrial action stop or not occur.

PN731

So it is under 127(1), your Honour. The only requirement that is there is that it must appear to you that industrial action is happening or is threatening or is impending or probable. If you're also of the view that the industrial action may be unprotected then we say that you're entitled and you ought proceed, your discretion is at large and you're able to have regard to any consideration that is a legitimate consideration, including the public interest. That simply follows with any decision maker that has a broad discretion which is not confined by the particular section. Your Honour - - -

PN732

THE DEPUTY PRESIDENT: But are you putting to me, for clarification, that 127(1) would be sufficient authority for that proposition in relation to the Commission exercising its discretion?

PN733

MR BLACKBURN: Yes. Yes, there is no limitation in 127(1) on your discretion, your Honour. Your discretion is at large within the confines of the Act and among other things you're required to have regard to the public interest because there is no limit prescribed in section 127 on the matters to which you must have regard as, for example, there is in relation to section 170MW or section 170MWA.

PN734

I haven't brought authority on this proposition today, your Honour, because it's well settled, I would have thought, 127 applications are really commonplace now and these are matters that you ought take into account, I would have thought, particularly for an interim order, that the material that is before you is overwhelming, as soon as I file the affidavits there will be evidence and in our submission, your Honour, it is an overwhelming case.

PN735

THE DEPUTY PRESIDENT: But 127(1) are you not also putting to me that that deals with the jurisdictional prerequisites that the Commission must establish?

PN736

MR BLACKBURN: Yes, it does. Yes, but they're easily satisfied, your Honour. 127(1), "Industrial action is happening," well, that is not in dispute, nobody has denied that is happening.

PN737

THE DEPUTY PRESIDENT: I am not asking you in relation to that I'm just simply saying to you that 127(1), as I understand what you've put, deals not only with the jurisdictional prerequisites but also you're saying it gives discretion to the Commission to - - -

PN738

MR BLACKBURN: Yes. The discretion - sorry.

PN739

THE DEPUTY PRESIDENT: - - - bring an order in under 127(3A) dealing with at least one of the circumstances or matters that you made submissions on.

PN740

MR BLACKBURN: Yes, yes.

PN741

THE DEPUTY PRESIDENT: Is that correct?

PN742

MR BLACKBURN: Yes. Well, I see - yes, 127(3A), your Honour, says:

PN743

The Commission may make an interim order under this section -

PN744

not under this subsection, so it is not as if the discretion is to be found in (3A), the Commission may make an interim order under this section. So you're entitled to make an interim order under 127(1) but it is an interim order and therefore there are different tests to be applied and we have discussed those, but 127(1) says:

PN745

The Commission may by order...

PN746

And 127(3A) says:

PN747

The Commission may make...

PN748

And that is where the discretion resides. The only other matter that is relevant is 127(5A) which indicates that an order does not apply to protected action. It is well settled, your Honour, it might be Coal and Allied, the Full Bench decision, or one of the others but it is well settled that even if it were protected action your Honour would have jurisdiction to make the order. It simply wouldn't apply to any action that was protected so there is no issue there and that is why your Honour does not have to determine for yourself whether the action is protected or not.

PN749

The Commission has held, a Full Bench authority, and I am pretty sure it was Coal and Allied, that you have jurisdiction to make the order even if it is protected, even if the industrial action is protected, but here for the reasons I've indicated it is clearly not. Your Honour, on that basis I would seek leave to file and rely on three affidavits, the first being the affidavit of David Douglas Pretsel.

PN750

MR EDMONDS: Sir, we once again re-state our objection to the evidence being put in in this form, sir.

PN751

MR BLACKBURN: Well, Mr Pretsel will be first in the box, your Honour, if my friend has got any concerns.

PN752

THE DEPUTY PRESIDENT: Please proceed to distribute the affidavits and we will deal with matters arising from them as we proceed.

PN753

MR BLACKBURN: Yes. Thank you, your Honour. The second is the affidavit of Rodney Alan Keep, the third is the affidavit of Doug Aberle with a series of exhibits attached to that affidavit. Your Honour, for the moment while we've handed up three documents if we take them one by one because in our view the affidavit of David Pretsel will be more than sufficient to meet the test for an interim order.

PN754

It expressly deals with all of the matters except the effect of the power blackouts, which my friend has conceded it is serious, but it deals with all of the other matters including the conduct of the union and the union's pursuit of State agreements. Your Honour, I'm in your hands to how you would like to proceed with that, whether you would like me to read the statement into evidence, call Mr Pretsel at this point or whether you would wish to adjourn to read that particular affidavit first - witness statement first. I would suggest, your Honour, that that one be read first and then Mr Pretsel can be called.

PN755

THE DEPUTY PRESIDENT: This is a document of some 23 pages with an attached copy of a certified agreement?

PN756

MR BLACKBURN: Yes. There are a number of exhibits, your Honour, yes, attached to it.

PN757

THE DEPUTY PRESIDENT: I would seek the view of Mr Edmonds on what would be the most helpful way for this affidavit to be dealt with by the Commission.

PN758

MR EDMONDS: Sir, this is an extraordinarily lengthy document, sir, or these three documents, sir, are quite lengthy between them, sir. I note, sir, they're some possibly 2 inches thick, sir. This information or these affidavits have been available since this morning, sir, and certainly they haven't been given to the union until this point, sir. We have not had an opportunity to peruse these documents and in those circumstances, sir, we ask that this matter be adjourned until tomorrow, sir, to enable us an opportunity to read these documents, prepare a cross-examination in relation to the issues raised in this correspondence - sorry, in these affidavits, sir.

PN759

I don't know if we're in a position to effectively respond to these today at all, sir.

PN760

THE DEPUTY PRESIDENT: Thank you. Mr McLaughlan?

PN761

MR McLAUGHLAN: Yes, sir. Given the size of the documents from the CEPUs position we would not be in a position to respond to this and it would be a total disservice to our members to try and deal with this matter on the run.

PN762

THE DEPUTY PRESIDENT: Mr Blackburn, given that there may have been an opportunity for you to have provided these documents earlier may I ask why it is that you haven't provided them earlier to the Commission and to the parties.

PN763

MR BLACKBURN: Well, your Honour, the affidavits have been completed late last night, as late as - well, I won't go into it, but well past midnight. One of the affidavits, the affidavit of Mr Aberle, was completed early today. It was not available this morning. The other affidavits were completed late - very late yesterday and early this morning. The only criticism could be that they weren't provided to my friends earlier. We have all been standing in the Commission, I'm not sure what they could have done with them.

PN764

It is a furphy, in our respectful submission, your Honour. There is not much they could have done with them. If they had - we're quite happy now for them to have time to read Mr Pretsel's affidavit, there is probably no need to go further than that. Before my friend stands up again I would also take your Honour back to the decisions that we relied on earlier which set out the principles for adjournments in relation to these sorts of matters and there were cases there where union officials had only had 1-and-a-half or 2 hours to prepare and they had come along to the Commission and said: I don't know anything about the matter, I can't get anyone from the union or they have said: I've not seen this evidence before and I would like to cross-examine or they have said: I would like to call rebuttal evidence and that is all in those decisions that we referred you to earlier of Australian Shar Pty Limited and Senior Deputy President Kaufman, Senior Deputy President Williams and his decision.

PN765

In all of those cases a permanent 127 order was made over the objections on the basis that that was what was required by the Act becuase to delay would defeat the purpose of the remedy provided by section 127 and now we have the added situation here where there is a new provision for interim relief and that is all we seek. It is not a high test, we are here, we're prepared to sit for as long as your Honour is prepared to sit. This affidavit is not difficult to read and in our submission it would - and I come back to the point, your Honour, that were we in the Federal Court with its more legalistic procedures there would be no cross-examination at all, the matter would be decided on the papers.

PN766

Also, your Honour, sorry I just refer back again to the need to get these employees back to work, the fact they are meeting tomorrow and the need to be able to serve them in the morning so that they can discuss the matter with each other and hopefully obtain a return to work tomorrow afternoon or else, sir - - -

PN767

THE DEPUTY PRESIDENT: I have heard what you have said, Mr Blackburn.

PN768

MR BLACKBURN: Yes.

PN769

THE DEPUTY PRESIDENT: But I am still having some difficulty understanding why these documents could not have been supplied earlier in the day to the Commission and to the respondents.

PN770

MR BLACKBURN: Well, your Honour, yes, I apologise for that. We didn't supply them because it didn't occur to us that you could have done anything with them, your Honour. You were there. My friends were there. We were here. We were all on our feet trying to get past procedural points and trying to start the case. So had I been allowed to start the case at 11 o'clock this morning then I would have given them the documents, we would have got to this point a lot earlier but they have kept us here with one request after another for an adjournment and this is yet another furphy.

PN771

The reason we didn't get to it earlier was because we didn't get to it earlier because of all the objections they have raised to keep us here till this time and there is nothing they could have done with the documents if I had given it to them earlier.

PN772

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN773

MR EDMONDS: Sir, I would submit that that is clearly not the case, sir. We have just heard that at least two of these affidavits, that of Mr Pretsel and that of Mr Keep, which we would say, sir, go to the substantive issues of this application, just heard that they were completed early or late last night or early this morning, sir, and certainly they would have been available since 8.30. Had we been given the affidavits at 8.30 when they should have been supplied to us, sir, we would have been in the position where those affidavits could have been read by the parties involved, not necessarily myself but certainly by the parties involved, sir, with a view towards ascertaining the veracity of the information in those affidavits and preparing some cross-examination but in these circumstances the applicant has held onto these affidavits until the 11th hour, sir, until 5.35 this evening after we have been here since 11.30 today, sir.

PN774

The applicant has held onto these affidavits and then has tried to slip them in at the last minute to justify an order being made today and quite frankly, sir, if we haven't had the opportunity to peruse these documents and prepare a cross-examination then the applicant should not be rewarded for their conduct into holding onto these affidavits by getting an interim order in circumstances where we haven't had an opportunity to be fully aware of the case against us. Now, if this affidavit was available since 8.30 this morning, sir - - -

PN775

MR BLACKBURN: No, it wasn't, your Honour. None of them were.

PN776

MR EDMONDS: Well, sir, we have just heard that they were finished last night. Now, either they were finished last night or they were finished today but - - -

PN777

THE DEPUTY PRESIDENT: Mr Blackburn.

PN778

MR BLACKBURN: Your Honour, I think I finished settling one at about 3.30 in the morning because of the urgency of this matter. Now, I am advised by my instructing solicitors that Mr Keep's was signed at about 9.30 this morning. Mr Pretsel's at 10.30. Mr Aberle's about 12.30 quarter to 1. We have endeavoured to prosecute this matter as quickly as possible, given the urgency of the situation and the importance of it and we have to put up with one delaying tactic after another.

PN779

There is nothing they could have done with these matters - with these documents if we had given them to them earlier. They have been standing in the Commission all day raising their objections and the reason they are given now, as I've indicated before, is because I was only allowed to start my submissions about an hour ago.

PN780

THE DEPUTY PRESIDENT: I hear what you have to put. I think that probably is sufficient for the Commission to be informed of the parties' positions without a prolonged debate going on. The Commission understands what is being put by each of the parties. However, the question now to be addressed is what is the proper way to proceed in the circumstances of having three documents which collectively are quite substantial.

PN781

MR BLACKBURN: Your Honour, we shouldn't be overwhelmed by the size of the documents. Firstly, in our submission, we will only proceed with one witness tonight, to try and abbreviate matters for everybody, so there is less reading. And that is Mr Pretsel. Mr Pretsel's affidavit is 23 pages long but it is double spaced. It is doubled spaced, broken into nice, neat paragraphs. And the rest of it is merely attachments such as the certified agreement and so forth. Mr Pretsel merely attests to the matters that I have been putting today. It merely provides a back of evidence. Everything in there, we submit, is in the union's own knowledge. There are no surprises.

PN782

We should at least, your Honour, be permitted to call Mr Pretsel, deal with his affidavit, and then at the end we say you ought be satisfied in relation to what you need to be satisfied for the purposes of the interim order.

PN783

THE DEPUTY PRESIDENT: Mr Edmonds, if Mr Pretsel is called as a witness and testifies in relation to this affidavit, it would be the Commission's understanding and expectation that as per usual a process that you would have the opportunity to cross-examine. I understand from what you have said earlier that you believe you should be in a position to have read these documents first before entering into cross-examination. Is that a correct summation of your position in this matter?

PN784

MR EDMONDS: Yes, sir. Before entering into any cross-examination, sir, we would certainly need to have the opportunity to have certainly read this document. Now, I am heartened by the position of the applicant that they don't intend to introduce the evidence of Mr Keep and Mr Aberle this evening, sir. And just the evidence of Mr Pretsel, sir. But we would still say we would need the opportunity to read this before this matter was put into evidence today so that we are in a position to cross-examine this evening, sir. But, further, sir, we would say that we would reserve the right after this evening, sir, to recall Mr Pretsel upon receiving any further instructions in relation to his affidavit, sir.

PN785

So, certainly, we say in these circumstances, sir, that we should have the opportunity to read this affidavit so as to prepare a cross-examination and, sir, we would certainly reserve the right, sir, if you are minded to take this evidence of Mr Pretsel this evening, sir, we would reserve the right to recall Mr Pretsel at a future date, sir, if there were further matters that arose in relation to his evidence.

PN786

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn, if I was to decide that a brief adjournment of perhaps, say, 30 minutes should be granted to give the Commission and the respondents the opportunity to peruse the affidavit of Mr Pretsel, I am wondering if your view would be that upon return the examination-in-chief and the subsequent cross-examination and any re-examination would be something that could be completed in the course of the evening.

PN787

MR BLACKBURN: Yes, your Honour. I was fully expecting that there would be an adjournment to allow the parties and of course yourself the opportunity of reading the document. When Mr Pretsel comes back, I simply propose to ask him whether this is his document, whether there are any changes he wishes to make, and to put it in evidence in that way. Therefore, allowing him to be cross-examined immediately. So, the examination-in-chief will take no time at all. I think that is the most expeditious way of dealing with it.

PN788

THE DEPUTY PRESIDENT: Thank you. And once that process had concluded, what would be your view as to thereafter what would be required to enable you to present your case properly?

PN789

MR BLACKBURN: Well, your Honour, then it would be in your hands. Obviously there are practical limitations. If your Honour was minded to continue further into the night, I would then call my next witness and do the same thing. There would be an adjournment for that affidavit. Again, we would take his evidence in the same way. However, if your Honour indicated that you had other commitments or the parties had other commitments and that you felt were - I won't say more important than the dispute. But if for whatever reason your Honour decides that the matter must come to a conclusion tonight, then we would make a submission which we have made already which is that on the basis of what you have heard there is already more than enough to make an interim order.

PN790

This is the exact situation which the Act provides for and you should do that on the basis of the submissions you have heard, your own knowledge of the matter through the 170NA proceedings, and also the witness evidence that you will have taken by then.

PN791

THE DEPUTY PRESIDENT: Well, what other witnesses would you intend to call if required of if appropriate?

PN792

MR BLACKBURN: Your Honour, Mr Rod Keep and Mr Doug Aberle.

PN793

THE DEPUTY PRESIDENT: Would they be available tonight?

PN794

MR BLACKBURN: Mr Keep is here, your Honour, and Mr Aberle will be phoned at the appropriate time, yes, when he needs to be here. I am not sure, though, how long that that might take. I suppose, your Honour, to be - our very strong submission, your Honour, is that you would be in a position at the end of Mr Pretsel's evidence to proceed. Mr Aberle's evidence could be quite long. And I can understand my friend if he is saying he is not in a position to cross-examine because, in Mr Aberle's evidence, those matters are almost certainly not within his own knowledge. Not within my friend's knowledge. Whereas as least with David Pretsel's affidavit, this is all about stuff that they are aware of.

PN795

Discussions that they were a party to and so forth. But we will say at the end of Mr Pretsel's submission, that you really ought be in a position to make the order.

PN796

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN797

MR EDMONDS: Sir, I must say I am at a bit of a loss to understand quite where the company is coming from, sir. It appeared to me 5 minutes ago, sir, that the company said that they only intended to call the evidence from Mr Pretsel this evening. So, an adjournment on that basis for half an hour to read Mr Pretsel's affidavit was appropriate, sir. But now it seems they are saying we only intend to call Mr Pretsel's evidence, unless of course that doesn't get us over the line, in which case we reserve the right to call everybody. Now, if they are going to call everybody, sir, then we would seek an adjournment, sir.

PN798

If they are just calling the evidence of Mr Pretsel this afternoon, then the Commission has put that, that it will be appropriate in the circumstances to have an adjournment for half an hour, sir. But I would submit that even then that puts us out to approximately 8 o'clock, sir, before these proceedings finish. Now, I don't know about the other parties involved, sir, but I certainly have other responsibilities outside of the Commission, sir, and 8 o'clock is starting to get a bit too late. So, sir, we would say that the applicant have got to make up their mind as to whether they are just calling the evidence of Mr Pretsel or whether they are calling all the parties.

PN799

And if what they are saying is they are just going to keep plodding away until they think they have hit the mark, well, let's say that that is not appropriate. They should put their case. Put the evidence they intend to put to establish that there is the grounds for an interim order. And if they don't get it, sir, then that is it for today.

PN800

MR BLACKBURN: I am indebted to Commissioner Edmonds for his direction as to scheduling.

PN801

MR EDMONDS: That is not necessary, sir. Sort of, smart alec comments are not appropriate.

PN802

MR BLACKBURN: Well, he is telling me how to run my case and he is saying that if we don't get it, that is - - -

PN803

MR EDMONDS: Well, if the applicant ran it properly, sir, then I wouldn't need to tell him how to do it.

PN804

THE DEPUTY PRESIDENT: Please, Mr Edmonds, let Mr Blackburn finish, if you would.

PN805

MR BLACKBURN: Yes, thank you, your Honour. Your Honour, you asked what we would propose at the end of Mr Pretsel's evidence and basically what I was saying was it is in your hands. We are in your Honour's hands. If your Honour was minded to proceed, then obviously we would. We are here. We are ready to proceed. But if your Honour considered that for various reasons it was desirable to finish today, then we would say that there was already enough before you for an interim order. We are trying to break it up into bite size chunks for my friend. Our proposition that the parties now go away and read Mr Pretsel's affidavit was so that we could get that far.

PN806

And let's see where we are at the end of that. In our view, you will certainly be in the position to make the order. It is an interim order, your Honour. It is interlocutory in nature. It is exactly what interim orders are about. And so that really was the answer to your question, that we are in your hands as to what happens after Mr Pretsel's evidence.

PN807

THE DEPUTY PRESIDENT: Thank you. I will come to you shortly, Mr McLaughlan. The Commission is cognisant of the fact that this is a relatively new provision in the Act. Section 127(3)A commenced on 30 April 2004. And it does not have a long history in the Commission of use, even though it has indeed been used. And in the circumstances it was important not to rush unduly consideration of how a new provision in the Act would operate. However, also very relevant is the question of a serious risk to power and of the occurrence of black-outs. So, whilst in normal circumstances the Commission would be of the view that the proceedings should be adjourned until the morning, taking into account the personal lives of all concerned, in these circumstances there is, indeed, an added note of importance to deal with the proceedings, given that the strike or the industrial action has been long running and there is as important situation facing the Commission and the community.

PN808

Therefore, I am of the view that unless I am persuaded to the contrary that there is not a serious situation facing the Commission and the community, that the matter should proceed during the course of the evening but on the basis that there is fair procedure which is to be followed and should not be swept aside. So, in those circumstances, I would seek your views on timing. Perhaps dinner may be a concern or be relevant to at least some people present. And I seek your views on - given that the Commission thinks there should be an adjournment but the matter should proceed in all the circumstances as to what timing would be appropriate for an adjournment. Mr McLaughlan, you, I know, wish to make a submission.

PN809

MR McLAUGHLAN: Yes, sir. I suppose I was trying to get an indication of where we may be going time-wise to make certain family arrangements. And I was wondering that I think that some of the concern that there is a meeting taking place in Collie at 12 o'clock tomorrow. That possibly to allow the correct opportunity to look at the documents, that we actually re-convene at 8 o'clock in the morning. And that way, it gives us sufficient time for people to go through the documents and also gives sufficient to deal with the issue prior to that workforce meeting. If that wasn't to be an accepted process, I would seek some indication of how late the Commission would intend to go but I certainly do have to make some family arrangements.

PN810

THE DEPUTY PRESIDENT: Thank you. Certainly, Mr McLaughlan. And I think, Mr Edmonds, you wanted to have something to say.

PN811

MR EDMONDS: Yes, sir. I would concur with those submissions, sir. And I do also have other responsibilities outside of this Commission, sir. In particular, family responsibilities, sir. I have got a young child, sir, and do have a role in caring for that child, sir. I would also point out, sir, that the delegates have now been here for some time today, sir, and need to make their way back to Collie this evening, sir. As it stands, they won't be getting back to Collie until approximately 9 o'clock this evening, sir, and they will need to be present at tomorrow's meeting, sir, in order to deal with those issues that arise tomorrow at 12 o'clock, sir.

PN812

So, I would certainly submit, sir, that it would be appropriate to adjourn the proceedings today, sir. I don't think anything is going to happen between now and first thing tomorrow morning which cause any significant difficulties.

PN813

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn, in relation to what has been put to me in relation to an adjournment and also the seriousness of any risk to the supply of power between now and tomorrow?

PN814

MR BLACKBURN: Well, your Honour, as I was writing my submissions last night, my instructing solicitor was ringing me, from hour to hour, telling me that another generator had gone down. Now, I must admit they don't usually go that quickly. K4 is imminent, we are told. And now when Western Power tell me that now, I tend to believe them, given what has occurred. But the notion of re-convening at 8 am, we have seen how the matter has proceeded this morning. Mr Pretsel's cross-examination could take some time. If we re-convene at 8 am, there is really very limited opportunity to hear the evidence, arrive at a decision, and then serve an order on those employees before 12 o'clock.

PN815

It is simply not going to be possible. And the unions will have bought more time and the employees will be out for longer. Your Honour, these sort of objections, I keep coming back, to exactly the sort of objections that their Honours, Senior Deputy President Kaufman and Vice President Lawler and Senior Deputy President Watson and others over-ruled in the context of dealing with 127 adjournment applications, because they said if these applications for adjournment are acceded to too readily, then the relief provided those sections will be defeated. The proposition to re-convene at 8 am is, we say, simply another delaying tactic and it wouldn't enable the matter to be dealt with in sufficient time for those employees to be served by 12.

PN816

They would probably have to have another meeting on the following day or the day after that to decide whether they are going back to work or not. And by the time we get to enforce it in the Federal Court, we are looking at the end of the week. So, what day are we now?

PN817

THE DEPUTY PRESIDENT: Because, Mr Blackburn, it is, of course, a serious allegation that you have made that it would be the expectation that any order that the Commission might be minded to make would not be complied with. I have heard what you have said. But I would just simply make the point that it is the presumption by the Commission that orders of the Commission are to be complied with.

PN818

MR BLACKBURN: Well, they certainly are to be complied with, your Honour. But the fact is that the Commission would know from experience they are often not complied with. And this Commission should be conscious of the fact that orders are commonly not complied with. What surprises me is how often unions come in here to the Commission and agreements are certified in which they swear they won't take any industrial action during the life of the certified agreement and, lo and behold, they do. So, your Honour, not everyone adheres to the statements that they make in this place unfortunately. People do not comply with return to work orders. Recommendations are ignored.

PN819

Industrial action is taken during the term of a certified agreement. It has been taken by these employees during the term of the certified agreement. That is in Mr Pretsel's affidavit. So, we have got no confidence at all. Even if the union goes down there and recommends a return to work as it did the other day, it told us it did the other day, we have got no confidence at all that they will return to work. The best we can do is insist on the order as quickly as possible so that we can move to enforce it as quickly as possible.

PN820

THE DEPUTY PRESIDENT: Thank you. I have heard what you have said.

PN821

MR BLACKBURN: In terms of an adjournment, your Honour, it might be sufficient to just press on and deal with Mr Pretsel and you might be sufficiently satisfied then to make the order and then people could go home.

PN822

THE DEPUTY PRESIDENT: The Commission, having heard what has been put, is of the view that there should be an adjournment of approximately 1 hour to enable the Commission and the parties to read the documentation and also to, if they so wish, have some refreshment. And, regrettably, the position thereafter is that the Commission's view would be that the parties should inform relevant persons that the proceedings may be going late. The Commission, of course, would wish the proceedings to go as quickly as possible and is obliged, under the Act, to do that.

PN823

However, the considerations of the complex issues of law and the dictates of natural justice do require that parties have a fair and reasonable opportunity to be heard and that proper process is followed. So, in those circumstances, the Commission will adjourn and resume - I have just been informed by my Associate of the security arrangements for the building. And that is that if you leave the building, you will be required to be admitted by Commission staff, due to the security arrangements in place in the building. With those comments and that advice, the Commission will re-convene at approximately 7 o'clock.

SHORT ADJOURNMENT [5.58pm]

RESUMED [7.05pm]

PN824

THE DEPUTY PRESIDENT: Mr Blackburn?

PN825

MR BLACKBURN: Thank you, your Honour. Your Honour, before I call Mr Pretsel I was conscious of the questions that your Honour was considering prior to the adjournment and that your Honour was looking for some authoritative guidance perhaps on the principles that might apply under 127(3)(a). About the best thing that I could find, your Honour, was the explanatory memorandum but unfortunately it is not overly helpful by reason of the fact that - but I will hand it up any way, if I may. I say it is not overly helpful by reason of the fact that the original bill was much longer than what ultimately was enacted. So that much of what is in the explanatory memorandum is now not relevant because those particular provisions were not enacted.

PN826

I did look for a copy of the original bill so that the memorandum would make a bit more sense. Unfortunately, I wasn't able to find it in sufficient time. The only copy I could find was of the final bill which contained only a couple of provisions. However, your Honour, there is still some guidance to be had within this document, recognising that much of it relates to provisions that were not enacted. Your Honour, on page 1 it said:

PN827

The bill proposes to amend the Workplace Relations Act to strengthen section 127 of that Act under which orders may be made by the Commission to stop unprotected action or to prevent industrial action from occurring.

PN828

In the third paragraph:

PN829

The bill proposes to allow applications for section 127 orders to be heard and determined in a more timely manner and to increase the effectiveness of those orders in stopping unprotected industrial action. As a result of these amendments the Commission will be required to hear and determine applications for section 127 orders, as far as practicable, within 48 hours.

PN830

Now, obviously that 48 hour limit was not enacted:

PN831

Where an application cannot be heard and determined within 48 hours the Commission will have the discretion to issue an interim order to stop or prevent industrial action.

PN832

So, your Honour, you can see there that, leaving aside the 48 hour aspect of it, the intention of enabling interim orders to be made was to provide for the situation where an application could not be heard and determined quickly. It is precisely where the application cannot be heard and determined that the interim order can be made. It goes on:

PN833

The Commission will also be able to make an interim order where the industrial action has not commenced but is imminent and the Commission is likely to be unable to determine the application prior to the industrial action commencing.

PN834

So, the interim order is for precisely the situation in which you are unable to determine the application in time. So clearly, therefore, if you're able to determine the application, then one might as well proceed to a final order.

PN835

Your Honour, on page 3, paragraph 3, "Proposed sub-section 127(3)(A)", which is the section that was enacted:

PN836

...will expressly empower the Commission to make an interim order to stop industrial action or to prevent industrial action from occurring. This power to make an interim order under sub-section 127(3) - - -

PN837

THE DEPUTY PRESIDENT: Sorry. What paragraph was that, Mr Blackburn?

PN838

MR BLACKBURN: Paragraph 3 on page 3, your Honour.

PN839

THE DEPUTY PRESIDENT: Yes.

PN840

MR BLACKBURN: This paragraph, so:

PN841

This power to make an interim order under subsection 127(3)(A) is in addition to the general power of the Commission to make interim orders under sub-paragraph 111(1)(b)(ii).

PN842

And there is an observation there that in the Transfield case his Honour Munro J, noted the difficulty in producing an adequately reasoned decision in the limited time available and issued an interim order to cease industrial action and that order applied until Munro J finally determined the matter and that order of course was a 111(1)(b)(ii) order because this section hadn't been enacted then.

PN843

Paragraph 7:

PN844

Proposed subsection 127(3)(b) will provide that an interim order will cease to have effect if the section 127 application is determined.

PN845

So, I mean, that reiterates the point that the interim order is precisely for the situation in which the application has not been determined:

PN846

This will apply where the Commission has not stipulated in an order the time at which the order will lapse.

PN847

So, it reinforces that there is not a requirement to stipulate the time at which the order will lapse, as it happens in the draft orders that we will provide, we have indicated that the orders will continue until the application is determined, which is merely a reflection of the Act.

PN848

Now, your Honour, paragraph 8:

PN849

Proposed subsection 127(3)(c) will list a number of factors that the Commission must have regard to when exercising its discretion to issue an interim order.

PN850

So, that would have resolved your Honour's dilemma. Unfortunately, those provisions were not enacted and, therefore, we're probably unable to have regard to them. At paragraph 9, it says:

PN851

The aim of the factors in that subsection is to highlight circumstances that have previously been problematic in relation to the making of timing and effect of 127 orders.

PN852

THE DEPUTY PRESIDENT: Mr Blackburn, I wonder, in the circumstance you just indicated that that particular provision wasn't enacted, if it is worth proceeding with that line of argument?

PN853

MR BLACKBURN: Yes, sorry. No, I would certainly - there is certainly not much point in referring to paragraph 9, I agree. But certainly, your Honour, what we do say is that what the section emphasises - sorry, what the explanatory memorandum emphasises is that the provisions which were enacted, 127(3)(a), were put there for precisely the situation in which an application is not able to be determined expeditiously or in time. So, it doesn't require the determination of the 127 application in order to make the interim order. One doesn't have to have addressed all of the matters in order to make the interim order and come to final conclusions in respect of all of those matters. Your Honour, I hope that is helpful. That is unfortunately all I have been able in time.

PN854

THE DEPUTY PRESIDENT: Thank you.

PN855

MR BLACKBURN: With that, your Honour, I would seek to file and rely on the statement of David Douglas Pretsel and I call Mr Pretsel.

<DAVID DOUGLAS PRETSEL, SWORN [7.12pm]

<EXAMINATION-IN-CHIEF BY MR BLACKBURN

PN856

MR BLACKBURN: Mr Pretsel, could you just state your name and address for the Commission, please?---Yes. It's David Douglas Pretsel.

PN857

And your address?---The address of - the address is (address supplied).

PN858

And you're the Employee Relations Manager for Western Australia and the Northern Territory for United KG?---That's right.

PN859

And you've been in that position for one year. Prior to that you were employed by Transfield as their Employee Relations Manager for six years?---That's right.

PN860

Yes. Do you have a copy of your statement with you?---I do.

PN861

And is it your signature that appears on page 23?---It is.

PN862

And you've initialled the bottom of each page?---Yes, I have.

PN863

I notice at various points, three or four points throughout the document, there are some handwritten annotations which are also initialled, for example, I think there is only a couple. I think one appears on page 14 and another one on page 18. There are just the two, are there, 14 and 18. Apart from those two are there any other changes that you wish to make to the statement?---No.

PN864

So you swear that it is a true and correct statement in the form that it's in, to the best of your knowledge?---Yes. I swear that it's the true and correction statement, to the best of my knowledge.

PN865

Your Honour, I would seek to tender the statement.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN866

MR EDMONDS: Sir.

PN867

THE DEPUTY PRESIDENT: Yes, Mr Edmonds.

PN868

MR EDMONDS: Just prior to that application being tendered, sir, we wish to raise an objection in relation to the statement that is being tendered, sir, in that a number of the paragraphs in that statement actually refer to matters that were the subject of conciliation proceedings before the Commission. Now, of course, sir, the matters that are the subject of conciliation in the Commission, sir, is, as the Commission reminds the parties at the outset of any conciliation proceedings, they're private issues between the parties, conciliation is conducted on a without prejudice basis, sir.

PN869

So in those circumstances, sir, we would say it is not appropriate for evidence in relation to those conciliation proceedings to actually be adopted in this matter. To that effect, sir, we take you to section 170NA of the Act: Conciliation In Respect of Agreements. 170NA(1), sir, refers to conciliation powers of the Commission:

PN870

The Commission has the conciliation powers in relation to a matter arising under this Part -

PN871

that it would have under Part VIB in relation to the matter that Part applied to conciliation in relation to the matters instead of in relation to industrial disputes.

PN872

Now, I would then take you to Part VI, sir, and in particular to section 104(5) of the Act, sir. Section 104 is headed: Arbitration, sir. Section 104(5) refers to evidence which relates to unsettled matters under the Act. In an arbitration proceeding under this Act unless all the parties agree evidence shall not be given or statements made that would disclose anything said or done in a conciliation proceeding under this Act in relation to the matters in dispute that remain unsettled.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN873

So in these circumstances, sir, we would say that certainly any statements made by the AMWU or indeed the CEPU or indeed the applicant today, sir, together with any documents which have been generated as part of that conciliation process are not admissible in these proceedings without the consent of the parties concerned. Needless to say, sir, the AMWU does not consent to the interruption in evidence of any matters disclosed by it during those conciliation proceedings.

PN874

Indeed, sir, it is quite devious, might I say, sir, of the applicant or of Mr Pretsel to attempt to introduce evidence in relation to those conciliation proceedings which were conducted on a without prejudice basis, sir. Now, certainly, he made the application, sir, in relation to conciliation under section 170NA, sir, and certainly if he introduced those proceedings or sought to engage conciliation for the purposes of obtaining evidence in order to conduct these proceedings, sir, then we would consider that to be absolutely outrageous, sir, and certainly we would say that it is not appropriate in the circumstances, sir, to take any evidence which comes out of those conciliation proceedings, sir, because to do so, sir, would be contrary to the public interest in that the parties would lose the ability to be full and frank in conciliation proceedings before the Commission.

PN875

So in those circumstances, sir, we would object to this statement going in, sir, also if it does go in any part of this statement which refers to conciliation proceedings in front of the Commission should not be taken into account and should not be considered as evidence in front of the Commission.

PN876

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN877

MR McLAUGHLAN: Sir, just to put it on the record the CEPU adopts that position in the strongest terms as well. We take it quite seriously that when we are given caution in conference that the matters are not to be used in the hearing that we find it objectionable to find these now before us as evidence. Thank you.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN878

THE DEPUTY PRESIDENT: Thank you, Mr McLaughlan. Mr Blackburn?

PN879

MR BLACKBURN: Yes, thank you, your Honour. Your Honour, if I could take you to the section that my friend has just referred to, which is section 1045, and it begins with the words:

PN880

In an arbitration proceeding under this Act...

PN881

This section does confer some limited privilege if you like on matters said or documents that are disclosed during a conference but it is a limited section. It applies only to arbitration proceedings under this Act. It begins with those words:

PN882

In an arbitration proceeding under this Act...

PN883

And, your Honour, there is Full Bench authority to establish that section 127 applications and for that matter section 170MW applications are not arbitration. So that section that my friend just relied on does not apply. If I refer your Honour to a decision of the Full Bench and Worsley Limited v The Australian Workers' Union and Others. I will hand up a copy of that in a moment.

PN884

Now, these principles are well established and I'm surprised that the proposition has been put. It is well established, your Honour, that neither section 127 nor section 170MW nor for that matter 166A involve the exercise of arbitration powers or arbitration proceedings. I will hand up a copy of the second Full Bench decision, your Honour, which is the Worsley decision. It also refers to the first decision on which I rely.

PN885

THE DEPUTY PRESIDENT: I understand that was in relation to section 105, in particular, is that the case?

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN886

MR BLACKBURN: Yes, it is, your Honour. But the reasoning is equally apposite, what they said in both those matters was that the exercise of powers in either at 127 or 166A or for that matter 170MW proceeding are not arbitration powers. Therefore, it seems logical that it is not an arbitration proceeding. Your Honour, if I could take you to page 11. You're not being asked to exercise arbitration powers in this proceeding, your Honour, so therefore it would seem to follow logically that it is not an arbitration proceeding. The only powers we're asking you to exercise are the 127 powers and the 170MW powers.

PN887

THE DEPUTY PRESIDENT: Indeed. I understand that submission, Mr Blackburn.

PN888

MR BLACKBURN: Yes.

PN889

THE DEPUTY PRESIDENT: I wondered indeed, if I accepted that argument, whether there may be any other reason why it would not be appropriate for the Commission to accept that evidence.

PN890

MR BLACKBURN: Yes. I accept that, your Honour, it is an entirely proper proposition. Now, I will deal with that as well.

PN891

THE DEPUTY PRESIDENT: Certainly.

PN892

MR BLACKBURN: Would your Honour like me to go through this decision first or are you familiar with the decision and accept those propositions - - -

PN893

THE DEPUTY PRESIDENT: The Commission doesn't have any difficulty in understanding and following what you've put.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN894

MR BLACKBURN: Yes.

PN895

THE DEPUTY PRESIDENT: Of course, Mr Edmonds and Mr McLaughlan will have the opportunity to make submissions on that as well, but for the Commission it is not necessary to go through this particular decision, given my familiarity with it.

PN896

MR BLACKBURN: Thank you, your Honour. That leaves the question, your Honour, whether as a matter of discretion you ought exclude the evidence. Now, your Honour, in that regard the first thing we would say is that the Act prescribes a situation in which material adduced in conference is specifically protected. Again, it is only confined to arbitration proceedings. So that of itself carries some weight. The Parliament has not provided a general prohibition. It has limited the prohibition to "in arbitration proceedings."

PN897

That of itself is a consideration that, in our submission, you should take into account. The second consideration, your Honour, is that at common law, and I have not brought authorities for this proposition, I have only got one that I will refer you to but the proposition is widely recognised. At common law it is well established, your Honour, that without prejudice privilege does not apply in situations where the Court would otherwise be misled.

PN898

That is the situation here because the unions assert that they are seeking a Federal agreement and they are seeking to exclude all the evidence which shows that in truth they are seeking a State agreement. Your Honour, in terms of the equity and the merits of the matter which ought guide your determination you know what the story is, you've had the unions stand in front of you in conference through Mr Currie and tell you that they were seeking a State registered agreement.

PN899

You have had documents filed that tell you that they're seeking a State registered agreement. To now close your eyes to that would effectively allow the Commission to be misled and it is well established, and I quote from McFadden and Snow, which was one decision which is authority for this proposition, it is a 1952 decision of the New South Wales Supreme Court at (1952) 69 WN New South Wales page 8 where it was said that:

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN900

The privilege that may arise from the cloak of without prejudice must not be abused for the purpose of misleading the Court.

PN901

That is what my friends would do here and similarly, your Honour, if one looks for guidance to, for example, the Evidence Act, the Commonwealth Evidence Act. The Commonwealth Evidence Act doesn't apply here of course it applies to Courts, Commonwealth Courts, within the meaning of that word in the Constitution. But section 131 of the Evidence Act provides that:

PN902

Evidence is not to be adduced of the communications made between persons in dispute in connection with an attempt to negotiate a settlement.

PN903

So there is that initial protection for statements that are made in relation to settlement negotiations. Then it goes on, in subsection (2) it says:

PN904

Subsection (1) does not apply if evidence that has been adduced in the proceeding or an inference from evidence that has been adduced in the proceeding is likely to mislead the Court.

PN905

So there is the statutory exception as well, recognised as the common law position which is that there is no public interest in the Court being misled and that is what stands to happen here, your Honour, if this evidence is not admitted. It would ill behove my friends to stand on their high horse and criticise us when they are seeking to exclude the evidence which you have before you. You know what the position is and they're seeking to exclude it and argue the opposite as if all that evidence never happened and never existed.

PN906

It would be an egregious blow to the public interest, your Honour, if that evidence, we would say, was excluded. It would result in the Court being misled, the proceedings would carry on in an entirely false premise.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN907

THE DEPUTY PRESIDENT: Mr Edmonds?

PN908

MR EDMONDS: Yes, sir, thank you, sir. Well, sir, we would say that in the circumstances, sir, it is clearly not the case that the Court is being misled in these circumstances, indeed I would submit, sir, that it is misleading the applicant, sir, to continue to assert that the memorandum of 22 July 2004 produced by the unions, sir, which says that a claim from members is to ultimately have a State certified agreement.

PN909

To continue to assert or for the applicant to continue to assert that that constitutes a notice for the purposes of section 170MV - I think it is MV, but sorry, you will have to bear with me, sir - to continue to assert, sir, that that is a notice as required by section 170MV(b), sir, is just clearly not the case, sir, and certainly we would say, sir, in these circumstances that that is just - it is certainly misleading of the applicant to continue to assert that fact, sir.

PN910

We would say in these circumstances, sir, that conciliation proceedings were certainly conducted on the understanding that they would stay private between the parties, sir, and they wouldn't be adduced into evidence but in these circumstances, sir, it has become abundantly clear to us, sir, that the conciliation proceedings were nothing more than a ruse on behalf of the applicant in an effort to try and obtain further evidence or further concessions from the AMWU which they could subsequently use in these proceedings.

PN911

MR BLACKBURN: I object. There is absolutely no evidence of that.

PN912

THE DEPUTY PRESIDENT: Mr Blackburn.

PN913

MR BLACKBURN: I presume my friend is going to comply with the professional obligations. He makes assertions, he will now need to back that up by evidence.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN914

THE DEPUTY PRESIDENT: Mr Edmonds?

PN915

MR EDMONDS: Well, it appears, sir, that any statements made by the union in conciliation proceedings have all been adduced into evidence, sir, and quite frankly it is just simply not the case that the assertions that the applicant makes it is just simply not the case, sir. Those proceedings should be private between the parties, they shouldn't be adduced into evidence today, sir, and as such we would object to the evidence of Mr Pretsel going in in its current form, sir.

PN916

THE DEPUTY PRESIDENT: Mr McLaughlan, do you support that line that was put by Mr Edmonds?

PN917

MR McLAUGHLAN: Yes, I do.

PN918

THE DEPUTY PRESIDENT: Thank you. Right of reply, Mr Blackburn?

PN919

MR BLACKBURN: No, your Honour, I think it would be - no, your Honour.

PN920

THE DEPUTY PRESIDENT: Right. The Commission notes that it hasn't been argued by the respondents that section 104 does apply in relation to section 127. That being the case then I simply move to the consideration of what has been put to me, that the Commission would or would not be misled if it did not have to hand the evidence of Mr Pretsel in relation to conciliation proceedings.

PN921

I am certainly mindful of the practice of the Commission, which is that conciliation is conducted on a basis that it is confidential and without prejudice, that is the usual method in which conciliation is conducted to enable the parties to be full and frank and as constructive as possible to try and resolve disputes. However, I am mindful that there are two ways of looking at this, that the Commission does need to be properly informed and on the other hand the confidentiality of Commission proceedings should be preserved as a matter of general practice.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN922

I am wondering if there may be perhaps an alternative position which may be that to maintain confidentiality of conference proceedings that any evidence given to the Commission should be evidence-in-confidence not on the public record but available to the Commission on a confidential basis and I would seek views as to whether that is a compromise position or not and alternatively the view on whether or not the applicant would consider the approach of not submitting into evidence certain specified paragraphs of the evidence of Mr Pretsel.

PN923

MR BLACKBURN: Absolutely not, your Honour. Absolutely not.

PN924

THE DEPUTY PRESIDENT: Yes, Mr Blackburn.

PN925

MR BLACKBURN: With respect, your Honour, the proposition that is being put by my friends is outrageous, they are seeking to hide behind the cloak but without prejudice, that is what they're doing. They have told you one thing in conference, they would tell you another thing today and they are seeking to hide behind that cloak to mislead the Commission. To mislead the Commission to hide the fact that they've already misled the Commission.

PN926

Our argument is that they have filed bargaining notices purporting to pursue Federal agreements when they sought State agreements and the evidence is before you and now they want to deny that lie by covering up another, by covering up what they - not another lie but they are covering up what they said in the Commission. Most of our evidence, your Honour, about this matter relates to what was said either in conciliation proceedings or documents that were filed in conciliation proceedings or what was said in enterprise bargaining negotiations meetings where the union repeatedly in all of those three forums has pursued that claim.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN927

The whole case here turns on our submission that they are pursuing a State agreement - not the "whole case" but much of the case and to exclude that would effectively pull the rug away and enable the union to get away with just a gross misleading of the Commission. Your Honour, the reason why 104(5) only applies to arbitration proceedings is because the sort of material that is supposed to be kept confidential is not because the content of what is in the conference is somehow particularly scandalous or needs to be kept confidential for that purpose, it is so that it can't be adduced in arbitration proceedings when the Commission comes to arbitrate an award.

PN928

That is why those matters can't be adduced in those proceedings. Now, there is none of that here, you're not being asked to arbitrate on whether there is a State agreement or a Federal agreement. Nor can it be kept quiet, nor can it remain confidential because, your Honour, whilst we have to write a decision and the decision will turn very largely or may turn on whether the union was pursuing a State agreement.

PN929

So it would be impossible to keep that information confidential unless your Honour were to say: Well, I found that they are based on material that I am not proposing to disclose in the decision, which I suppose might be a course open to your Honour.

PN930

THE DEPUTY PRESIDENT: But, Mr Blackburn, haven't you submitted that during the course of these proceedings in various ways without relying only upon the evidence of Mr Pretsel in conciliation?

PN931

MR BLACKBURN: I have said it, your Honour, but that is a statement from the bar table, my friend doesn't accept it, he says: Where's the evidence. Now, we put in the evidence, he says: Oh, gosh, don't let's see the evidence. So it is only submissions from the bar table, your Honour, it is no higher than that and Mr Pretsel's evidence on this point is mostly if not exclusively in relation to what occurred in EBA meetings and Commission conferences.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN932

THE DEPUTY PRESIDENT: But again the Commission isn't bound in any strict sense or bound at all by the rules of evidence.

PN933

MR BLACKBURN: No, no.

PN934

THE DEPUTY PRESIDENT: And the Commission can inform itself as it sees to be appropriate in the circumstances, Mr Blackburn, would you not agree?

PN935

MR BLACKBURN: Yes and now, your Honour. Sorry to be equivocal. But it would seem to me that you might be open to appeal if you relied on mere assertion from the bar table. And in the absence of those statements from the bar table being accepted by the other side, I mean, there is ample authority for that proposition that where statements from the bar table are challenged, the Commission should be very cautious, I think it is. I don't think it said the Commission cannot rely on them. There is some High Court authority and I think it says the Commission should be cautious in relying on those statements. We would not want to have a 127 order that was susceptible to challenge, your Honour.

PN936

We really, in the circumstances, think that there is absolutely no difficulty in admitting this evidence because the union has abused the Commission's processes and is now seeking to cover that up. There is nothing in the public interest that requires this information to be kept secret. The Act doesn't even require this information not to be used. Now, if Parliament had thought it was a sufficiently serious matter, they would have extended the prohibition in 1045 to include other matters. It may well have been that they would have put in a provision similar to the Federal Evidence Act, and even then, there would have been an exclusion for the situation where the court is likely to be misled.

PN937

So, even where there is a statutory prohibition on such matters being led, there is an exception. In the common law, there is an exception for the situation where the court is likely to be misled.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN938

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds?

PN939

MR EDMONDS: Yes, sir. We would simply say, sir, that there is no misleading of the court or the Commission in these circumstances, sir. If you turn, sir, perhaps to the offending document, sir, of 22 July 2004 annexed to the 170MWA application, sir, it refers at paragraph 15, sir, to the claim from members is to ultimately have a State certified agreement, sir, which can be distinguished, sir, from other claims in this document, like claim 8: Superannuation Allowance, as per the AMWU claim, sir. The AMWU, sir, is, of course, the union. The members are, of course, separate entities. Clause 15, sir, refers to a claim from members, sir. So, it is not being put by the union.

PN940

It is being put by the members, sir. The claim from the members, sir, is to ultimately have a State certified agreement, whether that is this agreement, the next agreement or the agreement after, sir. The claim from the members, sir, is ultimately to move back into the State system, sir. And it is certainly not put in any way in that document that that is a claim on behalf of the AMWU or a claim that is being progressed by the AMWU, sir. I would certainly say in these circumstances that there is no misleading of the Commission. There is no assertion from the AMWU on its own part or there is certainly no notice in writing as required by 170MVB, sir, that the AMWU is no longer seeking a Federal certified agreement.

PN941

Sir, to claim that conciliation proceedings should be admitted, sir, so that the court is not misled, is simply not appropriate in the circumstances. There is no misleading of the court. There was never a written notice from the AMWU saying that it no longer wished to pursue a Federal claim. So, in those circumstances, sir, as the Commission will not be misled, it is not appropriate to adduce evidence that was led in conciliation proceedings. And, indeed, sir, it would be contrary to the public interest in that certainly there is a reasonable chance that unions would lose or certainly the AMWU would lose its faith in the Commission in terms of conciliation proceedings, sir, in that it would no longer wish to participate in conciliation proceedings if it felt that those conciliation proceedings could ultimately be adduced into evidence against them, sir. So, we would say it is not appropriate in the circumstances, sir, and we would object strongly to this evidence going in.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN942

MR McLAUGHLAN: Sir, we would also say - - -

PN943

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN944

MR McLAUGHLAN: Just simply to say Mr Edmonds has put the position that the AMWU has not been misleading the Commission. We would simply say neither has the CEPU in this matter. And that is why we object to these being submitted.

PN945

THE DEPUTY PRESIDENT: Yes, Mr Blackburn?

PN946

MR BLACKBURN: Your Honour, Mr Edmonds referred to the AMWU no longer wishing to participate in conciliation proceedings. You will recall throughout the course of this 170NA proceedings they have flatly refused to participate, so I don't know that it would make much difference. But Mr Edmonds has relied only on the 170MVB point and the memorandum. And he is now saying: Well, that is not us. That wasn't our position. It is the claim from members. It wasn't our position at all. The union has a different position. Now, that is cute but one has to read that document in context. And what the union was asked and directed to do was to respond with the union's position to the company's letter.

PN947

And to say that, well, this is the union's view. This is the members view. On this one, we are going to put the union's view. On this one, we are going to put the members view, is, again, disingenuous. Now, I am not sure whether Mr Edmonds is pursuing that because he thinks it is a winnable point or because it is a point that will further delay the proceeding. But that matter has to be viewed in the context of the Commission's direction, what the unions were asked to do, which was to put the unions position in relation to the matters in dispute. And also has to be viewed in the context of the original document the company filed which set out the competing positions.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN948

But, your Honour, is you will recall, the point goes beyond what is contained in that document. The evidence of Mr Pretsel on this point will show, in fact, that on other occasions officials of the union, Mr Currie, have said before the Commission and in EBA negotiations, for example at paragraph 137 of Mr Pretsel's document:

PN949

The AMWU is seeking a State enterprise agreement for the employees.

PN950

At paragraph 139, before you, sir, on 3 August, Mr Currie, in the presence of Mr Saunders, said:

PN951

The union is seeking a State registered EBA agreement. No change in the company's position.

PN952

Now, he was then working through the list of items before you in that proceeding. And he says:

PN953

The union is seeking a State registered EBA - - -

PN954

THE DEPUTY PRESIDENT: Well, Mr Blackburn, isn't that the point I was raising with you earlier, that you have put to me in other ways and this would be one of those other ways that the point, without referring to the conciliation proceedings?

PN955

MR BLACKBURN: No, your Honour. Because when I say it, it is merely an assertion from the bar table.

PN956

THE DEPUTY PRESIDENT: I am referring here to paragraph 137. Is that the paragraph you just referred me to, in relation to - - -

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN957

MR BLACKBURN: 137 is an EBA meeting.

PN958

THE DEPUTY PRESIDENT:

PN959

The AMWU is seeking a State enterprise agreement for the employees.

PN960

On the bottom of that paragraph.

PN961

MR BLACKBURN: That is right. That is an EBA.

PN962

THE DEPUTY PRESIDENT: Isn't that the point I was just raising with you a moment ago, that you don't need to rely on the conciliation proceedings.

PN963

MR BLACKBURN: Because it is there?

PN964

THE DEPUTY PRESIDENT: Yes. There are other examples to - - -

PN965

MR BLACKBURN: Yes. But, your Honour, there is the question of privilege for without prejudice communications. It just attach to Commission conciliation proceedings. It attaches to any settlement negotiations, whether they outside or inside the Commission. Now, your Honour may have a different view, I suppose, in relation to Commission conciliation proceedings as opposed to settlement negotiations or EBA negotiations outside. In the common law, they would be treated in much the same way, particularly where the Act here doesn't say anything about it.

PN966

THE DEPUTY PRESIDENT: Well, I am only dealing here with the - - -

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN967

MR BLACKBURN: With the Commission matters.

PN968

THE DEPUTY PRESIDENT: Yes, indeed. What was put to me as an objection by Mr Edmonds in relation to conciliation proceedings before the Commission. That is the only matter before me now.

PN969

MR BLACKBURN: Yes. Well, your Honour, in that regard, firstly, there is the letter that we rely on as the notice. If we don't pursue that, then we can't pursue that point at all. I don't know whether your Honour includes that in the subject matter of this.

PN970

THE DEPUTY PRESIDENT: Which notice are you referring to?

PN971

MR BLACKBURN: The memorandum. The union responded saying the members ultimately want a certified agreement.

PN972

THE DEPUTY PRESIDENT: You are referring to the memorandum of 22 July?

PN973

MR BLACKBURN: That is right. The union is seeking to exclude that as well. It is seeking to exclude everything. It says that that arose out of a section 170NA conciliation proceeding and - - -

PN974

THE DEPUTY PRESIDENT: Yes, I understand the point. But I am still waiting for a definitive answer to my question in relation to paragraph 137.

PN975

MR BLACKBURN: Well, your Honour, paragraph 137, as I say, was also made in a negotiation.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN976

THE DEPUTY PRESIDENT: But not in a conciliation proceeding. That is the point I have raised with you.

PN977

MR BLACKBURN: Not in a conciliation proceeding. But there is no bar. We are only now talking about general considerations, not statutory considerations. There is no bar in relation to conciliation proceedings. But we do press paragraph 139 because that was before you. Your Honour, that was before you. You know the truth. And you will be misled if you accept a proposition that is to the contrary.

PN978

THE DEPUTY PRESIDENT: Yes, that really isn't the question, though, is it, Mr Blackburn? It is before the Commission. The question is, the status of it. Whether it is confidential or not.

PN979

MR BLACKBURN: Well, your Honour, the Act indicates that it is not. There is nothing in the Act that renders it confidential. And the position of common law is that without prejudice communications wouldn't apply where the court is likely to be misled. And that is the basis on which we put it. It is not confidential under the Act. Absolutely not. The Act only renders confidential, statements made in an arbitration proceedings so that the Commissioner can't say: Well, you were prepared to pay 10 per cent increase there, so I will award 12.

PN980

THE DEPUTY PRESIDENT: Thank you. Mr Edmonds, this matter has been going on for some time and I think it needs to be determined.

PN981

MR EDMONDS: Certainly, sir.

PN982

THE DEPUTY PRESIDENT: And not to just to continue to go round and round but - - -

PN983

MR EDMONDS: Certainly, sir. We are not seeking to do that, sir.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN984

THE DEPUTY PRESIDENT: I appreciate that. I would ask you to address the point that there is nothing in the Act to prevent the tendering of this evidence and that whilst the Commission's practice is that conciliation be conducted on this basis, that is more a matter of custom and practice, but the Commission is bound to act in accordance with the statute. I seek your view on that.

PN985

MR EDMONDS: Yes, sir, certainly, sir. If I could refer you to the statute, sir. To section 3H of the Act, sir, which is the principal objects of the Act, sir. And those principal objects include, sir:

PN986

Enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation.

PN987

And it is that part, sir, that I wish to actually draw to your attention, sir. This is a primary object of the Act, sir. This is the principal objects of this legislation, sir. And we would say that those principal objects are not served in circumstances where parties cannot be confident that statements that they make in conciliation proceedings and information that pout to the Commission, sir, won't subsequently be adduced into evidence and actually used against them, sir. And we would say that to take this evidence that has been led by Mr Pretsel today, sir, to certainly take this in respect of the conciliation proceedings held in front of the Commission, sir, does not further that object at all, sir.

PN988

Indeed, it goes contrary to that object of the Act, sir, in that the parties to proceedings in front of the Commission where the matter goes into conciliation may be more adverse in the future or may not be inclined in the future to be full and frank in relation to the issues in front of them in the Commission in the future. So, we would take you to the principal objects of the Act. And we would say, sir, that the response given by the applicant in the circumstances to your question with respect to paragraph 137 of the statement, sir, which talk about discussions that occurred outside of the Commission, sir, as opposed to 139 which talks about discussions that occurred inside the Commission, sir.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN989

We would say in those circumstances, sir, you should exclude any discussions which occurred in the Commission in conciliation proceedings, sir. You should exclude any documents that were produced by virtue of those conciliation proceedings, sir. Because those proceedings were conducted on the understanding that those proceedings were to be kept confidential between the parties, sir. And while I wasn't at these particular proceedings, sir, I have been involved in conciliation proceedings in front of you a number of times, sir, and each time I have been involved in conciliation proceedings in front of you, sir, you are sure to say to the parties at the beginning of the conciliation proceedings that this is a process whereby discussions that are held between the parties are private to the parties, are confidential, and are without prejudice, sir.

PN990

And I have yet to experience a conciliation proceedings, sir, with you where you haven't drawn that to the attention of the parties. We relied upon those statements, sir, and to subsequently find them attempting to be adduced into evidence, sir, certainly goes contrary to that object of the Act, sir. And goes contrary to our involvement in those conciliation proceedings.

PN991

THE DEPUTY PRESIDENT: Thank you. Mr Blackburn?

PN992

MR BLACKBURN: Your Honour, might I just refer you to two sections of the Act and then I will sit down. Section 98A. It requires you to:

PN993

Perform your functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings under this Act.

PN994

And section 110(2)B and C:

PN995

The Commission is not bound to act in a formal manner. Not bound by any rules of evidence. But may inform itself on any matter in such manner as it considers just.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN996

And C:

PN997

The Commission shall act according to equity, good conscious and the substantial merits of the case without regard to technicalities in legal forums.

PN998

And I also refer your Honour to the common law position in relation to the treatment of this sort of evidence which is likely to mislead the court.

PN999

THE DEPUTY PRESIDENT: I would ask, Mr Edmonds, if you could indicate to me in your view what are the offending paragraphs in the affidavit of Mr Pretsel in relation to conciliation matters.

PN1000

MR EDMONDS: To be honest, sir, I am not entirely sure. I have sat down and attempted to identify those paragraphs, sir. And I am not entirely sure of all of them, sir. But if you will bear with me. Certainly exhibit DP14, sir, which arises out of paragraph 79. Certainly DP15, sir, which - - -

PN1001

THE DEPUTY PRESIDENT: DP 14 was that?

PN1002

MR EDMONDS: Yes. Sorry, sir. Exhibit 14, sir, from that affidavit. Sorry, from the - - -

PN1003

MR BLACKBURN: What page is that, please?

PN1004

MR EDMONDS: - - - statement, sir. And paragraph 79. Sorry, sir, if you would bear with me, I will give you a page for that exhibit. Which is DP14, sir, which is at page 89 of the affidavit. And at paragraph 79 of the statement. Paragraph 81, sir. And exhibit 15, sir, which is at page 93 of the statement, sir. Paragraph 82 of the statement, sir. 83 of the statement, sir. 84 of the statement, sir. 85.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1005

THE DEPUTY PRESIDENT: Did you say 82?

PN1006

MR EDMONDS: Yes, sir. 82, 83, 84, 85, 86, 87, 88 and 89, sir. And, sir, if I could take you to paragraph 97, 98, 99, 100, 101, sir. Then, sir, 112, 113, 114, 115, 116. Sorry, sir, exhibit DP16, sir, which is found at page 94 of the statement. Sir, 115, paragraph 116, paragraph 117, all the way through to 122.

PN1007

THE DEPUTY PRESIDENT: 122 doesn't refer to a conciliation proceeding, does it, Mr Edmonds?

PN1008

MR EDMONDS: Sorry, sir. No, it doesn't, sir. Perhaps if I could say, sir, through to 120. And 121 and 122 don't refer to conciliation proceedings. I apologise, sir.

PN1009

THE DEPUTY PRESIDENT: Is that all of the paragraphs?

PN1010

MR EDMONDS: I don't think it is, sir. There is subsequently paragraph 129, 131.

PN1011

THE DEPUTY PRESIDENT: Well, 129 refers to the filing of a - - -

PN1012

MR EDMONDS: Of an application for conciliation, yes, sir. And we would say that those items disclosed in that application are confidential to the parties.

PN1013

THE DEPUTY PRESIDENT: That is an application to the Commission, Mr Edmonds?

PN1014

MR EDMONDS: Yes.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1015

THE DEPUTY PRESIDENT: That is not a record of the deliberations of the conference, is it?

PN1016

MR EDMONDS: Well, yes, sir, I take your point on that issue, sir. Maybe I will move on from that one. Perhaps if I could say, sir, paragraph 131 and exhibit 18 which is found at - - -

PN1017

THE DEPUTY PRESIDENT: I think perhaps the most expeditious way of dealing with this is for me to - - -

PN1018

MR EDMONDS: Sir, we are nearly at the end of that document, sir.

PN1019

THE DEPUTY PRESIDENT: - - - take you back to the beginning though, because I will need to determine each one of these applications.

PN1020

MR EDMONDS: Yes, sir.

PN1021

THE DEPUTY PRESIDENT: Unless I determine them in a blanket way. But I think if we go back to 81 - - -

PN1022

MR BLACKBURN: Your Honour - - -

PN1023

THE DEPUTY PRESIDENT: Yes, Mr Blackburn?

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1024

MR BLACKBURN: - - - it seems to me that you have decided against us in the sense that you are prepared to rule some material out that was said in the conciliation conference. That seriously undermines the case. This is an interim proceeding. The order we are seeking is an interim order. I would urge your Honour, before doing that, to please even provide me with some time to bring you some authorities on this point, because if that material is removed, this court will be misled. And our case will, on substantial points, disappear. And if that is your position, then I would ask for a short adjournment to go across the road to my instructing solicitor's premises and obtain some authorities on this point to indicate to you that courts will now allow themselves to be misled in this way.

PN1025

Now, you have other statutory requirements on you to act in a fair and just way. And it seems, with respect, that you are more concerned with process at the moment than hearing the merits of this matter. If this material is struck out, the case will be seriously jeopardised and this Commission will be a laughing stock because of the material that was struck out and the basis on which it was struck out. So, I would urge your Honour, before doing that, to please allow us an adjournment to go across the road and find some authorities in relation to this issue.

PN1026

THE DEPUTY PRESIDENT: Mr Edmonds?

PN1027

MR EDMONDS: Sir, it is already 8 o'clock, sir. Maybe in these circumstances maybe we could reconvene, sir, at perhaps 8.30 tomorrow morning, sir, and deal with those matters then, sir.

PN1028

THE DEPUTY PRESIDENT: The Commission is mindful, of course, of the hour. But it is my duty under the Act to hear and determine these matters. It has not been put to me by you, Mr Edmonds or Mr McLaughlan, that the Act specifically prohibits the evidence to be adduced of proceedings in a conference under section 170NA for an application for an interim order under 127(3)A. But the Commission does take seriously the custom and practice of the Commission that conciliation conferences are confidential and without prejudice. However, Mr Blackburn is putting to me that that consideration is heavily outweighed by the duty upon the Commission in the absence of a specific prohibition to be properly informed by the way of evidence.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1029

And he is putting to me that this is very important to the case of the applicant. Therefore, I must take that submission seriously and whilst not wanting to delay these proceedings one minute longer than is necessary, I am duty bound to be fully informed and properly informed and then to make a determination upon those submissions. I take it that you are, Mr Edmonds, sustaining your objection, despite all of the arguments that have been put to me by Mr Blackburn?

PN1030

MR EDMONDS: Yes, sir. I certainly do, sir. And I suppose another consideration the Commission needs to make in these circumstances, sir, is whether the Commission is being misled by the respondents in these circumstances. And if you look at the memorandum of 22 July of 2004, sir, I would submit, sir, it certainly doesn't meet the requirements under section 170MVB, sir, to be a notice in writing that the initiating parties no longer wish to reach an agreement.

PN1031

THE DEPUTY PRESIDENT: That is not the issue, is it, Mr Edmonds?

PN1032

MR EDMONDS: No, sir. But if you do look at that requirement under the Act, look at the memorandum the applicant seeks to adduce to support that case, sir, then you are able to say, well, this notice goes nowhere near being that notice that is required under section MVB. Therefore, in those circumstances, the Commission is not being misled. Therefore, there is no need to take into evidence, evidence from conciliation proceedings in front of it, sir. We certainly don't doubt that the 170MWA application will be struck out on the basis that no notice was given, sir.

PN1033

And in these circumstances, sir, this is a way of introducing evidence from conciliation proceedings by stealth, sir, when the ultimate grounds upon which that evidence is brought into the Commission will ultimately be unsuccessful. Yet, the evidence is in front of the Commission in relation to the 127 proceedings. So, we would say it is not appropriate to take into account that evidence from the conciliation proceedings when, ultimately, the basis upon which it is going to be brought in is going to fail, sir, so - - -

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1034

MR BLACKBURN: That is not right. The evidence is relevant to whether the action is protected, your Honour. If they are pursuing a State agreement, the action is not protected. And that is relevant to your 127 determination.

PN1035

THE DEPUTY PRESIDENT: Yes, I understand what is being put to me all around in this regard. I understand what you have put, Mr Edmonds. However, that does not remove the obligation on me to deal with the objection that you raised earlier about the confidentiality of conciliation proceedings. And given the importance of the submission in Mr Blackburn's eyes concerning the ability of the applicant to adduce this evidence from those conciliation proceedings, I feel obliged to grant Mr Blackburn a brief adjournment before ruling. Because the Commission must be properly satisfied that even though the Act does not specifically prevent the Commission from receiving evidence on matters raised in conciliation, nevertheless it is a matter of wider concern and relevance.

PN1036

And that is why I would be - I will hear Mr McLaughlan in a moment. I know he wishes to speak. But I would be of a mind to grant approximately 15 minutes or so. Mr Blackburn, would that be sufficient?

PN1037

MR BLACKBURN: 20. Yes, thank you, your Honour.

PN1038

THE DEPUTY PRESIDENT: 20 minutes?

PN1039

MR BLACKBURN: Yes, thank you.

PN1040

THE DEPUTY PRESIDENT: To enable the Commission to properly decide what is a very important point which affects the general operation of the Commission. Mr McLaughlan?

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1041

MR McLAUGHLAN: Yes, sir. I suppose it was put earlier on about getting an adjournment until tomorrow morning to deal with the matter. Now, at this late stage, we are asking for another adjournment. I don't know about the other people, but I have been in my office since 7 o'clock this morning which is just over 13 hours. If there is another adjournment tonight, I can see that this is going to continue. I would have thought that if evidence was going to be brought about information that was raised during a conference, private conference, that it should have been here at that time.

PN1042

And I would again say that - I mean, I am actually - personally got a headache going sitting in here for most of today given the time, but if it is going to be going on, then it would be appropriate to reconsider the position of having an adjournment and having an early morning start. 8 o'clock. To deal with the matter. And at that time, that information can be put to us. I am just of a view that this may well be a matter that is going to drag on for hours and I don't wish to be disrespectful to the Commission but I am having some difficulty just keeping going with my headache at this point.

PN1043

THE DEPUTY PRESIDENT: Thank you, Mr McLaughlan. I quite understand what you are putting. And if there was agreement between the parties that an adjournment to the morning was desirable, that would be a different matter. However, the applicant is adamant that the proceedings are urgent and there are imminent power black-outs and, hence, it is my duty to continue at least for the moment. Mr Blackburn, did you wish to - - -

PN1044

MR BLACKBURN: Well, I was going to say that, again, and I am repeating myself, probably sound like a broken record, I apologise for that, but this is the sort of situation that an interim order is at. This is why 127(3)A was introduced, to apply in situations where a proceeding could not be completed in time. It is exactly the sort of situation. Your Honour, it seems to us, with respect, that what you are doing by trying to hear the matter fully is, in effect, denying the existence of 127(3)A. The position that your Honour, with respect, appears to be taking is that you must satisfied on all points that all of the evidence must be led or substantially all of it, which it will have been by the time Mr Aberle and Mr Keep and Mr Pretsel have given their evidence from us at least. And that is proceeding as if 127(3)A didn't exist. That is exactly the situation that that section was intended for.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1045

THE DEPUTY PRESIDENT: Thank you. I am satisfied that this matter has been in progress before the Commission for perhaps more than 7 hours.

PN1046

MR EDMONDS: 9 hours, sir.

PN1047

THE DEPUTY PRESIDENT: Or certainly around 7 hours already.

PN1048

MR EDMONDS: It is 9 hours actually, sir.

PN1049

THE DEPUTY PRESIDENT: 9 hours.

PN1050

MR EDMONDS: And I can say, sir, I have been in the Federal Court prior to this proceeding, sir. I have to concede that I am certainly exhausted, sir, and I do have family responsibilities that I have to attend to, sir, and they are most pressing, sir, and I suspect if I don't get home soon, sir, then I will be dealing with issues in the Family Court as well, sir, so - - -

PN1051

THE DEPUTY PRESIDENT: What is being put to me by Mr Blackburn is that the solution to this, Mr Edmonds and Mr McLaughlan, is for me to issue an interim order forthwith.

PN1052

MR EDMONDS: Sir, if I can just - - -

PN1053

THE DEPUTY PRESIDENT: And then everyone can go home.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1054

MR EDMONDS: Well, sir, if I can just address that issue, sir. Even if you were to issue an interim order tonight, sir, there is no prospect of the unions procuring a return to work prior to this matter being brought on again in front of you tomorrow morning, sir. And might I suggest maybe 8.30 may be a more appropriate time for that, sir. But there is no opportunity for the unions to get a return to work prior to 12 o'clock tomorrow, sir, which is when the meeting is going to take place, sir. So, maybe, sir, if we were to reconvene at 8.30 you would have another 3 hours worth of evidence in front of you. Another 3 hours to consider your position, sir.

PN1055

And maybe it would be more appropriate in those circumstances, sir, for you to consider making an interim order at that time, sir, rather than at this time, when we are only going to be back in front of you with no opportunity to put that interim order to any of the parties in any event, sir. So, in those circumstances, sir, we would say that it would be more appropriate to reconvene at 8.30 tomorrow and when you get closer to 12 o'clock, sir, then the applicant can press you for an interim order, sir.

PN1056

THE DEPUTY PRESIDENT: Thank you, Mr Blackburn, you are - - -

PN1057

MR BLACKBURN: Which we then obviously wouldn't be able to serve, your Honour, and the employees wouldn't be bound by it until such time as it was served and by the time we served it then they would probably have to have another meeting but we wouldn't be able to serve it obviously in time. I mean you have seen the way that this matter has been litigated. One can estimate on this basis that - in fact, it is probably only once your Honour makes an interim order that we will actually be able to make any progress in these proceedings and these points will not be agitated any more because, frankly, and with respect to my colleagues, it seems to us that most of the points that have been agitated have been agitated for one purpose alone, that is to delay the proceeding. So at least if there is an interim order in place they will have an interest in bringing the proceedings to a conclusion as well.

PN1058

THE DEPUTY PRESIDENT: So, Mr Blackburn, are you putting it to me that the Commission should proceed and if satisfied issue an interim order tonight?

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1059

MR BLACKBURN: Well, I'm putting to you, your Honour, that on the basis of what you have already heard you are in a position to make an interim order. The interim order is precisely for the situation in which the matter is not able to be determined expeditiously and in this case there will be difficulties, we won't be able to serve any order that arises tomorrow. Yes, you are in a position to make the order now, it is only an interim order.

PN1060

THE DEPUTY PRESIDENT: So are you putting it to me that there should be an adjournment perhaps for the Commission to reflect on whether or not it is in a position to issue an interim order tonight rather than an adjournment to deal with the law in relation to confidentiality of conferences in the Commission?

PN1061

MR BLACKBURN: Yes, yes. Yes, and that would allow that point to be ventilated more fully. It would also allow the evidence to be dealt with more fully as well, it would facilitate the more considered conduct of this matter which again is really what the intention of the section is.

PN1062

THE DEPUTY PRESIDENT: That is an alternative position that is being put to me. Mr Edmonds and Mr McLaughlan?

PN1063

MR EDMONDS: Sir, we certainly don't think that is an appropriate course of action, sir. We don't think the Commission could be satisfied in any way, shape or form, even with Mr Pretsel's affidavit, that there is any reasonable prospect of a section 127 order being issued in this matter, sir. As I say, this case turns on evidence from conciliation proceedings, sir. Such evidence, we say, you shouldn't consider in these circumstances, sir, and such evidence, sir, falls well short of the requirements imposed upon the applicant by virtue of section 170MV(b) sir.

PN1064

So in those circumstances, sir, we would say that there isn't sufficient information in front of you to issue a 127 order on an interim basis now and in these circumstances, sir, you should indeed adjourn these proceedings, sir, to enable the applicant to more fully prepare their submission in relation to the confidentiality of conciliation proceedings and reconvene tomorrow morning in an effort to reach a more fulsome view, sir, as to whether an interim order should be issued prior to the meeting tomorrow, sir, at 12 o'clock.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1065

THE DEPUTY PRESIDENT: Mr Edmonds, it does concern me, you have pointed out to me that the Commission has been sitting for nine hours.

PN1066

MR EDMONDS: Yes, sir.

PN1067

THE DEPUTY PRESIDENT: And the progress that has been made is in effect that there is no evidence yet after nine hours before the Commission.

PN1068

MR EDMONDS: Yes, sir. That is certainly true, sir, but we would certainly object to the characterisation that the applicant puts on it, that we're attempting to distil these matters from proceeding, sir, we don't concede that that is the case at all, sir. Indeed, had the applicant come to these proceedings today, sir, having completed the requirements imposed upon them by the rules, sir, having been ready to proceed in relation to this matter, sir, having been clear as to what their arguments were, having given appropriate notice to us, sir, and having given us copies of the affidavits that they intended to adduce into evidence in a timely manner, sir, so that we're able to respond to them then this matter would have proceeded with a great deal more haste.

PN1069

We would say, sir, that the applicant has not come to these proceedings in those circumstances, that while they say we've attempted to delay proceedings, sir, we say that they have attempted to ambush us at every turn, sir, so that we're unaware of the issues are being raised in front of us or that have been raised in front of you today, sir, so that the parties have not been properly served, the workers have not an opportunity to view the application in front of them, sir, and the conduct of the applicant in these proceedings has delayed this matter not the conduct of the respondent, sir, the respondents have simply sought to ensure that the application is conducted in a fair and appropriate manner, sir.

PN1070

So in those circumstances, sir, we would object to the characterisation of these proceedings as having been delayed by us because it is just simply not the case. Had the applicant conducted the matter properly, sir, we would have no basis upon which raising any objections as to the progress of this matter today.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1071

THE DEPUTY PRESIDENT: Mr McLaughlan?

PN1072

MR McLAUGHLAN: Just further to that, sir, if I could just say that it would be a disservice to our members if solely because of the lateness of the hour decisions were made in haste. We would say that if the evidence is to be relied on and there is supporting information required to show how it should be able to be relied on then that can be done the first thing in the morning and we would say that that gives everybody sufficient time to digest some of the things that are being put here this afternoon.

PN1073

THE DEPUTY PRESIDENT: Mr McLaughlan, there still would remain, if that course of action was followed, the prospect that the proceedings in the Commission would still be lengthy and may not be concluded within, for example, one morning and the Commission has other commitments tomorrow and on subsequent days. The concern that I would have is that to determine this matter fully may require a number of days of sittings and therefore an advantage of the issuance of an interim order would be that the matter would not be determined finally and the determination of whether or not an order other than an interim order would issue would be on the basis of much fuller opportunities for the parties and the Commission to decide that matter.

PN1074

MR McLAUGHLAN: Yes.

PN1075

THE DEPUTY PRESIDENT: Yes, Mr Edmonds?

PN1076

MR EDMONDS: Sorry, sir, but in essence that approach is akin to convicting the union, sir, and then giving them an opportunity for a more fulsome trial at a later date and quite frankly, sir, it is a bit late after we have already been put in front of the firing squad to then say to us: Oh, well, now we will hear the matter more fully and indeed we were wrong in issuing orders against you and we're sorry about that but such is life.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1077

In these circumstances, sir, unless you're satisfied that enough basis is in front of you, sir, to at least warrant the issuing of a final order, sir, in those circumstances you shouldn't issue an interim order, sir. To proceed with this matter tomorrow morning, sir, would at least give you the opportunity to more fully consider the evidence of Mr Pretsel, to more fully consider its admissibility and for the AMWU and the CEPU to cross-examine Mr Pretsel in relation to that evidence and probably you will be in a better position at that point in time, sir, to consider whether the granting of an interim order is appropriate in those circumstances.

PN1078

To make an interim order on the run now, sir, when there is certainly a dispute as to whether Mr Pretsel's evidence should be considered at all and there has been no cross-examination of his evidence, sir, it would certainly cause a substantial injustice to the AMWU and to the CEPU, sir, especially in circumstances, sir, where you say that the final determination of the matter would be delayed somewhat, sir, because in those circumstances, sir, we then have an interim order hanging over our head with the delayed opportunity to get that order removed by way of the final determination of these matters.

PN1079

THE DEPUTY PRESIDENT: Mr Blackburn?

PN1080

MR BLACKBURN: Your Honour, the order will not, by force of the Act, apply to protected action. So if they want to take their chances, and my friends can advise them, then they can take their chances. The order will not apply to protected action, my friend is right, there is no difficulty. If the employees return to work there is no detriment, there is no detriment, nothing hanging over their heads, the only thing that will happen is that they will earn some wages for a few days.

PN1081

After that if the matter is resolved and you find against us they can go back and take industrial action again, the matter can resume, and we will have power blackouts but be that as it may there is no detriment to the employees, the balance of convenience is clearly all one way here and I'm surprised that my friend endeavoured to raise what in effect was a balance of convenience or detriment argument.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1082

Again, I can only keep going back to those 127 decisions, those application for adjournment decisions, that we referred to earlier where there were examples there of permanent orders being made without the union being given the opportunity to cross-examine or to call rebuttal evidence or even to have persons in attendance who had any knowledge of the matter, that only had 1-and-a-half to 2 hours notice but the Commission, becuase of the urgency of the situation and to avoid inflicting further damage on the employers in those cases, made the orders in any event. In this case we're only seeking an interim order.

PN1083

THE DEPUTY PRESIDENT: Thank you. Taking into account everything that has been put to me and considering also the hour and the future course of the proceedings and particularly the submissions in relation to whether the affidavit of Mr Pretsel should be accepted, taking into account the reference to conciliation proceedings, I am of the view that I need to adjourn this matter and to give me sufficient time to reflect on what has been said, but taking into account the urgency of the matter I propose to adjourn until 9 pm and to then resume and if I am in a position to issue a decision then to do so. So we will reconvene at 9 o'clock. We will now adjourn.

PN1084

MR BLACKBURN: Your Honour, is it the same arrangements for accessing the building?

PN1085

THE DEPUTY PRESIDENT: Yes.

PN1086

MR BLACKBURN: Thank you.

SHORT ADJOURNMENT [8.21pm]

RESUMED [9.28pm]

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1087

THE DEPUTY PRESIDENT: I apologise to the parties for the delay in the resumption of the hearing which was due to occur at 9 pm, however, the issues before me required some considerable reflection and required additional time. However, I am now in a position to address the applications before me, noting that on 6 August 2004 United KG Pty Limited, the applicant, filed an application under section 127 of the Workplace Relations Act 1996 and also filed applications under section 170MW and MWA.

PN1088

The applicant is seeking specifically an interim order under section 127(3A). The relevant certified agreement which governs the employment of the employees is the United KG Pty Limited Power Plant Maintenance Certified Agreement 2003, which has a nominal expiry date of 1 July 2004. I am familiar with the background to these applications, having conducted a number of conferences in a related application under section 170NA.

PN1089

The applicant submits that there is a real risk of power cuts now and the matter is of great urgency. The respondent unions agree that the consequences of power cuts would be serious for the community if these occurred. Industrial action has been in progress for some six weeks and appears likely to continue for another four weeks. I am satisfied that I have used my best endeavours as I am required to do so under the Act to allow the parties a fair and reasonable opportunity to make submissions in this hearing, which has lasted in excess of nine hours.

PN1090

I am also satisfied that a hearing to finalise the determination of the applications before me in a just way would require substantially more time than has occurred so far in this hearing. I am satisfied that I have jurisdiction to issue an interim order and I am persuaded that I should exercise my discretion in all the circumstances to issue such an interim order.

**** DAVID DOUGLAS PRETSEL XN MR BLACKBURN

PN1091

This decision has been made without the benefit of transcript so I reserve the right to issue written reasons in due course. It is intended that the substantive applications under section 127, section 170MW and section 170MWA will be re-listed for Wednesday, 11 August, and a notice of listing will issue in due course. My Associate will hand a copy of the interim order to the parties. I adjourn this hearing.

ADJOURNED UNTIL WEDNESDAY, 11 AUGUST 2004

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 SHORT LETTER PN123
EXHIBIT #2 TWO PAGE LETTER PN123
EXHIBIT #3 COPY OF ARTICLE FROM COLLIE MAIL DATED 29/07/2004 PN242
EXHIBIT #4 COPY OF MEDIA RELEASE DATED 27/07/2004 PN294
DAVID DOUGLAS PRETSEL, SWORN PN856
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN856