C2004/5284, Transcript of Proceedings [2004] AIRCTrans 3464 (2 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 8299
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/5284

PELE CURTAINS

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the
Act of an industrial dispute re alleged
harassment and right of entry

MELBOURNE

2.36 PM, TUESDAY, 24 AUGUST 2004

PN1

MR G. PELS: I appear on behalf of the Australian Industry Group on behalf of our member, Pele Curtains Pty Ltd. Appearing with me on behalf of the company is MS R. HIGGS,

PN2

MR R. LOWE: I appear for the CFMEU in this matter. Appearing with me is union organiser, MR J. COOKE.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Pels.

PN4

MR PELS: Yes, thank you, your Honour. Senior Deputy President, the Australian Industry Group on behalf of the company has issued a section 99 in regard - under the Workplace Relations Act in regard to a serious issue concerning a breach of the section 285A of the Workplace Relations Act. In doing that the company asserts and submits that Mr Cooke has been engaged in serious harassment, bullying and verbal abuse towards the senior management and other employees, and even union members, culminating in a serious incident on 6 August.

PN5

There are two elements to our dispute where we say there is breaches of section 285A, your Honour, and that is under section 285A(3) of the Act a permit may be revoked upon application, and where the Registrar and the Commission is satisfied that the person to whom the permit was issued is acting in improper manner, or in this case we are saying that there were two issues. One, that Mr Cooke acted improperly in his behaviour in breach of his permit on 6 August, and subsequently on 10 August the union have issued an inspection, a time inspection of wages record, which we say is an abuse of power in the sense that we don't believe that any employee has initiated or queried or questioned any breach of the award or any alleged underpayment or whatever; and we rely on the authority, the Full Bench authority dated 9 October 2003 in Print Number 939097 where we will rely on the principles contained in that decision to say - to support our submission that there are two instances of breaches of the section 285A.

PN6

What we are seeking from the Commission today, or we are hoping to conciliate today is that (a), that the organiser, Mr Cooke, does not apply to enter the premises of Pele Curtains at their Mitcham factory site, and in fact the union voluntarily removes Mr Cooke from entering that site or act as an organiser on that site; and also that the union does not pursue or provides evidence as to why the company should provide copies and a history of time and wages records going back six or seven years where the company believe there is no genuine reason or evidence to suggest there is any breach or underpayment under the award, and in accordance with the principles of that Full Bench decision we assert that this is merely a fishing expedition on behalf of the union.

PN7

THE SENIOR DEPUTY PRESIDENT: Have you got the Full Bench decision there?

PN8

MR PELS: Yes, your Honour. Now, your Honour, in the alternative, if the matter can't be conciliated or the parties can't reach agreement today we reserve our right to make a formal application under section 285A(3) to have Mr Cooke's permit revoked, and - - -

PN9

THE SENIOR DEPUTY PRESIDENT: That application seems to have to be made to the Registrar, does it?

PN10

MR PELS: That is - yes, that is right, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR PELS: If the matter can't be - - -

PN13

THE SENIOR DEPUTY PRESIDENT: So what? You don't want him to go there, and we don't want the union to send anybody else there. Is that right?

PN14

MR PELS: No. We don't have any objection to the union exercising their right of entry if they, I suppose, comply with the Act, that they don't operate in breaches of the right of entry provision, that they conduct themselves properly. There is no bullying, harassment, verbal or physical abuse towards staff or the management there. But Mr - - -

PN15

THE SENIOR DEPUTY PRESIDENT: What is he alleged to have done, apart from bullying and abuse, because that is pretty - - -

PN16

MR PELS: Yes. Yes, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Pretty broadly termed.

PN18

MR PELS: It is. Look, I will hand up a copy of Ms Higgs' statement. If I can take your Honour to point 8. In effect what triggered the application under section 99 was the incident found at point 8 of Ms Higgs' statement. Now, the company obviously is quite prepared to provide, if necessary, the formal statements from Ms Leonie Higgs who is the proprietor or founder of the business, and also Mr Nick Box, and also another person as well who were witness in evidence to the offensive behaviour, bullying and also where there was, I suppose, a physical altercation between Mr Cooke and Mr Box.

PN19

It is the circumstances surrounding the incident on 6 August described in point 8 of Ms Higgs' statement that was highly offensive to the company and the management there, and totally unprovoked, to which we say that that is behaviour which is totally unsatisfactory, and it really is evidence that over a six month period the behaviour of Mr Cooke and the ability to communicate with the management has broken down irretrievably, and that is why we - I wrote to the State Secretary asking the union to voluntarily remove Mr Cooke from the organiser at that site.

PN20

Now, I am sure Mr Lowe will provide a copy of that letter but the response I got from the State Secretary was he didn't agree with that and the union would vigorously oppose removal of Mr Cooke from the site, either right of entry provisions or examining the time and wages records.

PN21

THE SENIOR DEPUTY PRESIDENT: All right. I will hear from Mr Lowe. What have you got to say, Mr Lowe?

PN22

MR LOWE: Thank you, your Honour. In respect of this matter the union denies the allegations that have been made by Mr Pels on behalf of the company. We would say that in all instances our organiser has conducted himself in a proper manner and that there is a significant history to this particular issue. I have one copy of the letter that was sent to the union by Mr Pels and a copy of the response that was sent by the Branch Secretary of the union that I think is appropriate for me to hand up in these proceedings at this stage. I think that I have got the date wrong. Today's date should be 24 August. On the letter dated 17 August, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN24

MR LOWE: The union will vigorously oppose, if required, your Honour, any application by AIG or the company to revoke Mr Cooke's permit, and we were not aware that that was going to be part of their application certainly at today's hearing and their application was probably extremely broad. But I think it is probably important that the Commission, I guess understands a bit of the background to the dispute. We had organiser in 2002 visiting the site, being Mr Andrew Vandramini, and Mr Julian Cooke took over from him, and this history that goes to really the heart of the dispute comes about from the visits that Mr Cooke had to the site on a number of occasions, first of all in January and February, those dates being, from my information, 30 January and 13 February 2004, to try and deal with some issues of concern to the employees out there who were members of the union.

PN25

On 19 February the union sent to the company a letter which it entitled a log of claims, and initiated a bargaining period at that time as it wanted to negotiate an enterprise agreement, and it wanted to deal with a number of what we would consider to be fairly basis issues, like the appointment of an occupational health and safety committee, the provision of a sick room, a supply of accessible cool drinking water, to arrange for regular cleaning of toilets and meal areas, to provide a meal area in accordance with the Act, to get a pay increase for the employees there, to provide adequate heating and cooling in work areas. Those types of issues, and there was 11 of them listed, your Honour.

PN26

On 20 and 27 February of early of this year Mr Cooke met with staff preparing the issues that they wanted the union to negotiate in a formal and full enterprise agreement, and this company is predominantly female employees, and employees that come in the majority from a non-English speaking background. So Julian took some considerable time speaking with them to make sure that they could understand adequately what the union's objectives were. On 2 March of this year Julian spoke with the company in an attempt to discuss the log of claims and he was told there was nothing to discuss, and as a result of the company's attitude in that area and refusal to negotiate the union lodged a section 99 dispute in the Commission on 4 March and that was before Commission Blair on 18 March.

PN27

At this meeting we sought to have employees attend the Commission. They were told by the manager, the owner of the company, that if they attended they would be breaching their contract of employment and they were too scared to attend that hearing. At this hearing we provided the company with a comprehensive enterprise bargaining agreement and following a recommendation of Commissioner Blair the parties agreed to meet to discuss the union's claim on dates to be agreed, as recommended by Commissioner Blair.

PN28

We were aware that the party had the right not to finalise any agreement with us, as we had our rights under the terms of the Act after having initiated the bargaining period. On 28 April again I wrote to Commissioner Blair, seeking to have the matter brought back on, as the reason for this was the company's refusal to meet with the union employees in a manner which would enable employees representatives to participate in such proceedings. The issue of refusal by the company to allow Julian Cooke, our organiser, to use the lunch room for meetings with employees was a matter that we also raised. We sought directions from Commissioner Blair and that matter was dealt with by him on 11 May.

PN29

The union sought the paid release of employee representatives to attend the Commission hearing on 11 May. The company agreed to allow them to attend but refused to pay them. As a result of that hearing before Commissioner Blair he didn't issue orders but he made a recommendation, which was based on the orders that we sought, and if I could just go through for the Commission's information just what they were. First of all that there be ongoing compliance with section 285C of the Workplace Relations Act 1996, and if the union wishes to conduct meetings with employees whether they be members of the union or not they be entitled to do so at this stage in the company's lunch room on the premises; that within seven days of today's date, 11 May 2004, the company meet with designated officials of the CFMEU, together with three employee representatives, with such a meeting taking place at the premises during the employee's work time, and that the three employee representatives who attend such meeting or meetings be paid by the company their regular wages for attendance at such meeting or meetings.

PN30

I then go on to say that it goes on without saying neither party is entitled to discriminate against any potential member or employee who wishes to participate in such meetings, and neither party is to consider any attendance at such meetings in a way that would place the ongoing employment of the employee in jeopardy. If there are issues that are outstanding after the parties have met, on whatever number of occasions they choose to meet, either party is free to have the matter referred back to the Commission, then the Commission would see whether it can conciliate an outcome. So again we sought to get those negotiations going and again the company attempted to frustrate the process by refusing to implement the recommendations of the Commission.

PN31

As a result of this I prepared a letter to the Commission asking for the matter to be brought back on, and Commissioner Blair chose not to re-list the matter but instead of - took the recommendations that I have just read to you and then turned them into a direction, an order of the Commission, your Honour. So discussions held with the company, they failed to negotiate an outcome which was satisfactory to the union. Meetings were held with the employees to explain to them what had occurred. That meeting was held on 4 June and the union had a - employed an interpreter to come along to ensure that people understood what was happening.

PN32

On all occasions that Julian Cooke has visited the company's premises he has - the union has advised the company that he is going to be attending the company and in line with the provisions of the Act. In relation to the matter on 6 August regarding the meeting which was held at lunch time, the issue was raised by employees there that a lady had injured herself a work. A pin had been lodged in her thumb. She had been sent home. No first aid had been given to her and people were concerned about that. In previous years there had been a first aid officer, be it unpaid there, and members had concerns that when they had an injury they didn't know who to go to, and they asked Julian to take this matter up with the company on their behalf.

PN33

He raised this with the company, went to the office after meeting with the members. When he went there he went to ask the questions that had been sought by members. He was ignored. He asked who was the first aid officer on a number of occasions and there was no answer. So he walked back into the factory. Leonie Higgs came out. He asked the question again and was told, "Look, it is none of your business," and "Get out". Julian indicated that it was his business and that it was the business of his members. At that stage he was pushed in the back by a male member of the staff who I understand to be a person by the name of Nick Box, and he was man-handled towards the going out of the premises.

PN34

he was told not to handle Julian by Julian. He said, "Look, take your hands off me and leave me alone," and that was ignored. He raised the question again about who was the first aid officer and he was told to, "Piss off, it is none of your business," and again he was pushed out of those premises by the employer's representative. He asked them for a cheque for the union fees that are deducted by the company and again he was told in so uncertain terms where to go, if you didn't have a cheque book, and so we saw that the action of the company in this particular matter was totally inappropriate.

PN35

So there is a significant amount of history which goes back to what has occurred and I guess what has brought the employer to bring this matter to the Commission. But they didn't seek to have any discussions with the union. Prior to this the first we knew of it was the letter - we received the notice of listing and then after that received advice of the AIGs section 99 application. Your Honour, the union refutes the allegation that we have attempted to harass employees, that we have attempted to harass the company. Our view is that there are breaches of the award occurring, and we have complied with the provisions of the Act in respect of section 285B of the Act, and that states the following, your Honour:

PN36

This section applies if a person who holds a permit in force under this division suspects that a breach has occurred or is occurring of this Act or an award, an order of the Commission, a certified agreement that is in force and binds the organisation of which the person is an officer employee.

PN37

The first instance, mr Cook holds a permit and he is employee of the CFMEU and we suspect that there are breaches of the Furnishing Industry National Award 2003. 285 - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Does that bind the company?

PN39

MR LOWE: Beg your pardon?

PN40

THE SENIOR DEPUTY PRESIDENT: Does that bind the company?

PN41

MR LOWE: Yes. The company is a named respondent to the award, but also members, as I understand, of Australian Industry Group. But they have been members of - been respondents for some time, your Honour. For the - 285B(2) provides that:

PN42

For the purposes of investigating the suspected breach the person may enter during working hours any premises where employees work who are members of the organisation of which the person is an officer or employee...

PN43

And then, 285B(3) deals with the power after entering premises:

PN44

After entering premises the person may, for the purpose of investigating the suspected breach, require the employer of the employees to allow a person during working hours to inspect, and if the person wishes to make copies of any of the following that are kept by the employer on the premises and are relevant to the suspected breach; any time sheets, any pay sheets, any other documents other than AWAs, that would occur during working hours to inspect or review any work, material, machinery or appliance that is relevant to the suspected breach; and during working hours interview any employees who are members of the organisation of which the person is an officer or an employee or eligible to become members of the organisation about the suspected breach.

PN45

And then, in 285B(4) in respect of the production of documents:

PN46

For the purpose of investigating the suspected breach the person may, regardless of whether the person exercises powers under subsection (2) or (3) require the employer of the employees mentioned in subsection (2) to produce the documents of the kind mentioned in any of the subparagraphs at the premises at which the employees work or at some other place, other agreed place, and then to inspect those documents.

PN47

Then 285B of the Act states that the authorised person must not hinder, entry must not be refused:

PN48

The occupier of the premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B(5)(c).

PN49

Now, the union would say, your Honour, that we are intent on ensuring that employees, and especially employees who find it extremely difficult to articulate and understand what awards say, are in fact receiving the entitlements that they are entitled to. I am certainly aware from discussions that I have had with the employees personally and believe that there were some breaches in respect of allowances that are provided for in the award. We are aware of problems in relation to superannuation, and we also aware of matters that are in relation - concern in relation to classifications.

PN50

And so we haven't got any concerted campaign against this company which is made up of predominantly employees who are of a non-English speaking background, mainly from Asian backgrounds, your Honour. But we are intent on ensuring that the provisions of the award are complied with. And we would say, your Honour that, in all respects, while things may have been testy at times, our organiser has handled himself in an appropriate manner. These people that are employed there are extremely nervous people. They have been - felt that it was a problem in appearing in the Commission. They were reluctant to even come today because of they thought there may be some action taken against them by the employer.

PN51

But I think it is important that the Commission views a document that they have prepared on how they see that the action that have taken place on 6 August, and I would like to provide the Commission with a copy of this which has the signatures of a number of employees on that, and I think that they are probably nervous because they feel there may be some action taken against them for even going this far. I will provide a copy if the Commission orders me to do so.

PN52

THE SENIOR DEPUTY PRESIDENT: Now, all right, well, as to who has behaved appropriately and who hasn't, both sides have obviously differing views. It would seem that there is some information the union is after which they haven't yet got, is that right?

PN53

MR LOWE: Yes, that is correct. Well, we haven't - we have sent the letter seeking to examine the time and wage records. That letter was sent to the company on 11 August seeking to examine the time and wage records on 17 August.

PN54

THE SENIOR DEPUTY PRESIDENT: Have you got a copy of that? Can I have a look at that?

PN55

MR LOWE: Yes. What I can do is a hand the Commission all the letters that we have sent to the company about meetings and everything, but the top one is the latest letter.

PN56

MR PELS: With respect, your Honour, are we likely to get a copy of that document that Mr Lowe has handed up?

PN57

THE SENIOR DEPUTY PRESIDENT: I don't intend to pay any regard to it, Mr Pels.

PN58

MR PELS: Thank you.

PN59

THE SENIOR DEPUTY PRESIDENT: Only for the reason that if there is an issue of revocation, it is a matter for the registrar, not for me.

PN60

MR PELS: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: I am not saying anything otherwise about that letter. The latest of these, Mr Lowe - is the latest of these the one on top?

PN62

MR LOWE: No, just the - the one that is on top, they are in order basically from 5 February through to 11 August, but the 11 August is the only letter that we have sent to the company seeking to examine time - - -

PN63

THE SENIOR DEPUTY PRESIDENT: This letter dated 11 August - is the letter dated 11 August the latest one?

PN64

MR LOWE: Yes, that is correct, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: Okay, it says Mr Dennis Evans will also be attending. Who is he?

PN66

MR LOWE: I beg your pardon?

PN67

THE SENIOR DEPUTY PRESIDENT: It says Julian Cook and Dennis Evans will be the officers attending. Who is Dennis Evans?

PN68

MR LOWE: Yes, that is correct, Dennis is another one of the organisers.

PN69

THE SENIOR DEPUTY PRESIDENT: Right.

PN70

MR LOWE: Normally two organisers would go out to check the books and we find it is far more efficient that way, and then to copy any documents that we need. So, we normally send two organisers out, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: So, what has happened in response to this letter? Because 17th was last week, wasn't it?

PN72

MR LOWE: Well, it hasn't been followed up because of the dispute notification that was listed. I was contacted by Mr Pels to ask whether or not we would proceed to examine the time and wage records; I indicated to them that wouldn't occur in light of the matter that was before your Honour, but we would probably seek to be able to examine the time and wage records at a date now in September because Mr Cook will be on leave. So, we would suggest that that could be done on Wednesday, 8 September, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Right, okay. Mr Pels, does the company know Mr Evans?

PN74

MR PELS: Yes, yes.

PN75

THE SENIOR DEPUTY PRESIDENT: Do they have any problems with Mr Evans?

PN76

MR PELS: No, no, your Honour. Just to clarify, there was some correspondence between myself and the union after 11 August. I requested that the visit on 17 August be put off for at least a week to allow us to come before you. The union agreed to that. And we subsequently said that we don't want any time - any inspection or visit there to address the issue of time and wages records until the matter is dealt with either here or through the application to revoke Mr Cook's right of entry provision.

PN77

THE SENIOR DEPUTY PRESIDENT: So, have you got any problem with Mr Cook going with Mr Evans?

PN78

MR PELS: Yes, we don't - my instructions are the company do not want - they feel physically and emotionally threatened by his behaviour, so they don't want him at the site at all. The other issue, your Honour, is part of our submissions that we are not satisfied there is a genuine request for employees to examine or allege breach of the award - - -

PN79

THE SENIOR DEPUTY PRESIDENT: It doesn't have to be by the employees, does it?

PN80

MR PELS: Well, the authority that I relied on indicated that one indication of a genuine claim to look at the time and wage record would be an indication for employees that they believe that there is a potential breach, but that is no the only reason of course. What we are saying is, in our submission, is that since the company has rejected the collective agreement with the union, this is when all the concerted campaign of bullying, harassment has occurred.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, but Mr Lowe said that they suspect you are breaching at least some allowances provisions under the award.

PN82

MR PELS: He is alleging that.

PN83

THE SENIOR DEPUTY PRESIDENT: That is their suspicion.

PN84

MR PELS: That is their suspicion.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, so you have even got what sort of thing they suggest you are breaching.

PN86

MR PELS: It would be our submission, in evidence we will show that this is a long campaign to have the tax office to audit the company, they invited the WorkCover inspector in on a couple of occasions - - -

PN87

THE SENIOR DEPUTY PRESIDENT: All I am dealing with is; they want to look at the books because they suspect there is a breach of at least the allowance provisions of the award. Now, you have said you don't mind Mr Evans going and looking at the books. Your issue was not looking at the books.

PN88

MR PELS: No.

PN89

THE SENIOR DEPUTY PRESIDENT: Your issue was Mr Cook.

PN90

MR PELS: Yes, and there is a, I suppose, a clarification as to where the alleged breach is and if they are saying it is allowances only then, well, this is the first we have heard of what the alleged breach is.

PN91

THE SENIOR DEPUTY PRESIDENT: Yes.

PN92

MR LOWE: Your Honour, section 285B of the Act doesn't require the union to advise the company what the breach is. We have indicated that we consider the breach is a number of areas. One is in allowances, one is in classifications, and the other is in superannuation. And so they are all matters which are covered by the award, and we believe it is our inherent right to do that, and we have asked - we believe those breaches have been ongoing for some time and we have sought that - - -

PN93

THE SENIOR DEPUTY PRESIDENT: All right. Mr Pels, does the company object to Mr Evans going to look at the time and wages books, the superannuation records, and the records of over-time which presumably will be in the time and wages books; the records of over-time.

PN94

MR PELS: The tax office has already audited for superannuation purposes, your Honour; already done that.

PN95

THE SENIOR DEPUTY PRESIDENT: Well, that may well be. Is superannuation covered by the award?

PN96

MR PELS: Yes, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: Well, if they suspect a breach of it, they can go in themselves under the Act.

PN98

MR PELS: Well, with due respect I think with the Act the award doesn't stipulate all the superannuation entitlements, I would only suggest 3 per cent or - - -

PN99

THE SENIOR DEPUTY PRESIDENT: No, that is not the issue. It probably in fact says "according to the super guarantee legislation", something like that does it, Mr Lowe?

PN100

MR LOWE: Yes, that is correct. It relates to this particular superannuation fund.

PN101

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN102

MR LOWE: But we are even concerned about the number of employees who they are contributing on behalf of.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, so to the extent that superannuation is covered by an award, an order of the Commission or a certified agreement enforced binding the employer, sorry, binding the union or an employee, they can have a look at it under the Act, under 285B if they have got a suspicion. Whether the tax man has looked at it doesn't seem to me to be relevant.

PN104

MR PELS: Our argument and the evidence we will be summonsing is for the union in accordance with the authority I indicated there was that this was a fishing expedition as a result of pursuance of an enterprise agreement, and it is the only reason they have asked for this request. We say that is an abuse of power.

PN105

THE SENIOR DEPUTY PRESIDENT: Have you got any more as to your suspicion, Mr Lowe?

PN106

MR LOWE: I want to assure, your Honour, that this is not a fishing expedition and certainly one of the issues, and I mentioned the issue of allowances and there have been people who have worked shift work there from time to time.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR LOWE: We don't believe that they have been paid in accordance with the terms of the award, and I personally picked that up from discussions that I had with employees of Pele Curtains, and that had nothing to do with the Enterprise Bargaining Agreement. It wasn't something that the organiser was familiar with, something that I would pick up because of the - I just knew to look when she mentioned something to me about shift work; how it was worked and what she was paid. I then realised that there was a problem. And that has got nothing to do with any fishing expedition.

PN109

We are certainly aware of problems in relation to superannuation, and we have some concerns about classifications. I can't add any more than that, but certainly from the union's point of view, your Honour, my instructions are that Julian Cook is the organiser for the site, and Julian Cook would be assisted by Dennis Evans in such a search. If we have to go down the track and the company is going to try have Mr Cook's certificate or permit revoked, well then so be it, that would have to happen.

PN110

THE SENIOR DEPUTY PRESIDENT: All right, yes. The union, Mr Pels, at least Mr Evans, wants to come in on 8 September 2004 and look at time and wages books and the superannuation records. I assume that it will be sufficient, Mr Lowe, those two because one would assume the over-time is part of the time and wages records.

PN111

MR LOWE: Yes, that should be.

PN112

THE SENIOR DEPUTY PRESIDENT: So, they want to look at the time and wages records and the time and wages books, and the superannuation records. Are you going to prevent Mr Evans coming in on 8 September 2004 to do that?

PN113

MR PELS: We object to that, your Honour, on the basis - - -

PN114

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN115

MR PELS: We are going to object to that.

PN116

THE SENIOR DEPUTY PRESIDENT: You are?

PN117

MR PELS: On the basis that this is linked to Mr Cook's and the union's breach of 285, section 285 of the Act that Mr Lowe talked to those employees back in May and if there was a genuine concern about the breach of the award then back in May or June, or whenever, the union, we would have thought would have made an application to look at it.

PN118

THE SENIOR DEPUTY PRESIDENT: All right. I am going to list this matter for early September in which case the company will need to bring along their wage's records and their time books, and their superannuation records so that we can have the argument about whether an order should issue under section 285, by the Commission.

PN119

MR PELS: I think, with respect, isn't it that the company has to make an application to the registrar under section 285?

PN120

THE SENIOR DEPUTY PRESIDENT: No, section 285D to 285G gives the Commission power to make orders, to settle disputes over the operations of the sections of the Act under this division. You have notified a dispute.

PN121

MR PELS: And the revocation of a permit; are you going to address that issue as well?

PN122

THE SENIOR DEPUTY PRESIDENT: However, the Commission does not have the power to revoke a permit; we can make orders in respect of other matters, we don't have the power to revoke a permit. That is what it says under 285G. If you want to revoke a permit for Mr Cook, you will have to make another application to the registrar.

PN123

MR PELS: Yes, that is understood.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, I am dealing with this dispute, right? This dispute is about whether you are going to let Mr Evans in, on what the union has now requested, 8 September 2004. You have told me "no" because you think you are being victimised, in essence. The union says, "no", they have suspicions. Right, to enable me to deal with the matter I will require you to bring the books so that the union can establish why they want the orders, or you can establish why I shouldn't issue the orders.

PN125

MR PELS: What the company would propose would be that we would make an application under section 285A.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, well, you can do that; that is a totally separate issue. That is a totally separate issue, Mr Pels.

PN127

MR PELS: Well, with due respect both are connected because what we are saying is that the request to - and we rely on the authority of the Full Bench decision, that the two in that situation, was connected that the union is using abuse of power in a fishing expedition to examine the time and wages record and - - -

PN128

THE SENIOR DEPUTY PRESIDENT: Yes, I know that is your argument.

PN129

MR PELS: Yes.

PN130

THE SENIOR DEPUTY PRESIDENT: I understand that. You say, "We are not going to let them in because it is a fishing expedition", right? They say it is not. So, I can determine that, you will need to bring the books. It is a simple matter to decide whether it is a fishing expedition or not. Bring the books and it will be determined.

PN131

MR PELS: It goes also to the application to revoke his permit.

PN132

THE SENIOR DEPUTY PRESIDENT: You make a separate application for that. There are two issues; one whether Mr Cook should be able to do it, right? You object to that. If you don't want him to do it, make your revocation application; it is not a matter I can deal with under the Act, it is a registrar's matter. There is also an industrial dispute about whether anyone in the union who has a permit can get in, and you are saying "No", no one in the union can get in because it is a fishing exercise.

PN133

MR PELS: That is right.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, separate issue. That is the dispute that is before me; whether it is a fishing exercise, right? And that is the one I am going to re-list to deal with. For me to deal with it, you will need to bring the books. That will clearly say whether it is a fishing exercise or not.

PN135

MR PELS: Well, under section 285G(2), the Commission I understand does have the power to - - -

PN136

THE SENIOR DEPUTY PRESIDENT: The Commission does not have the power for the purpose of - to revoke a permit. You should to a person under section 285A.

PN137

MR PELS: 285G:

PN138

To revoke a permit issued to a person under section 285A.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes, does not have power to revoke a permit.

PN140

MR PELS: Sorry, does - - -

PN141

THE SENIOR DEPUTY PRESIDENT: Sorry, "does; sorry, sorry, sorry, my apologies.

PN142

MR PELS: Sorry.

PN143

THE SENIOR DEPUTY PRESIDENT: My apologies, Mr Pels. So do you want me to deal with that as well? Or do want to make your application to the registrar?

PN144

MR PELS: I think you said it first up; you have to make an application to the registrar.

PN145

THE SENIOR DEPUTY PRESIDENT: Well, it is up to you.

PN146

MR PELS: Yes.

PN147

THE SENIOR DEPUTY PRESIDENT: I am happy to deal with both now you have pointed out my error under 285G(2).

PN148

MR PELS: Well, we would seek to have both issues dealt with under the application under the registrar.

PN149

THE SENIOR DEPUTY PRESIDENT: The registrar cannot deal with 285G(1) matters, that is not his power, he can only deal with the revocation. Do you wish to withdraw your section 99?

PN150

MR PELS: Well, we are happy to withdraw that on the basis that the union holds off on their inspection of time and wages record to allow the Commission to deal with the section 285A application.

PN151

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Lowe?

PN152

MR LOWE: No, your Honour. We believe, your Honour, that we have a right under section 285B of the Workplace Relations Act, to enter the premises and investigate suspected breaches. We have raised with yourself today a number of breaches that we consider that are there. We have complied with the provisions of the Act in respect of the notification, we have indicated to you that we are prepared to extend the matter further; that will cover two issues. That will cover (1) Mr Cook's time on annual leave, and it will certainly allow the company a greater period of time to prepare the books so that we are able to look at them.

PN153

But we are, you know, it is up to the company, if they are going to seek to revoke Mr Cook's permit then so be it. I can't stop them from making that application, but we believe we have complied with the Act, we will send to the premises Mr Cook and Mr Evans to do that job and that is the union's simple position. If the company refuses to let them in, then we will deal with that by coming back to the Commission, and if the company seeks to revoke his permit that will be defended with the upmost rigour regardless of whether it is heard by the registrar or by yourself, we have got no - we are not concerned about that, your Honour.

PN154

MR PELS: Your Honour, the company's main concern is Mr Cook visiting the site. Now, the company - Ms Higgs is away I believe on 8 September, what the company would propose is that Mr Evans or the nominated person other than Mr Cook from the CFMEU visit on Wednesday, 22 September. I am not quite sure how far back the records they want to check, the time and wages records they want to check, but if they wanted to do that to examine the time and wages record.

PN155

I take it - well there is a superannuation audit being done, I have to assume that that has already been done, maybe the CFMEU might want to indicate whether they want to pursue that as well. But the company will agree to inspection of time and wages record as long as it is not Mr Cook, but we need to indicate how far back and for what employees.

PN156

THE SENIOR DEPUTY PRESIDENT: I am going to adjourn into conference. I will speak to the union first, then I will speak to yourselves, all right?

ADJOURNED INDEFINITELY [3.24pm]