C2005/2916, Transcript of Proceedings [2005] AIRCTrans 1151 (16 May 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996

DEPUTY PRESIDENT IVES

C2005/2916

s.127(2) Application to stop or prevent industrial action - Thiess John Holland Joint Venture and CFMEU re alleged industrial action at the Mitcham-Frankston project site.
(C2005/2916)

MELBOURNE

10.02AM, MONDAY, 02 MAY 2005

PN1

MR G WATSON: I seek leave to appear on behalf of the Thiess John Holland Joint Venture.

PN2

MR J MADDISON: I appear on behalf of the CFMEU. Your Honour, I don't oppose leave for my learned friend in these matters today.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted. Yes, go ahead, Mr Watson.

PN4

MR WATSON: Thank you, your Honour. There are two matters before the Commission, one is an application under section 127 of the Act for orders in relation to industrial action that is threatened, impending and probable and is due to occur on Wednesday of this week. The application itself sets out what we understand are the relevant circumstances, and attaches a flier or leaflet under the heading of Construction Worker, issued and authorised by Martin Kingham and Tommy Watson of the CFMEU, regarding a mass meeting to be held at Festival Hall this Wednesday.

PN5

There is also a notice under section 166A of the Act of intention to take action in tort in relation to the same circumstances. Your Honour, we submit that it is appropriate to deal with both matters together. They deal with the same factual circumstances, the threatened stoppage for this Wednesday. And what we would propose is that after briefly referring to the circumstances of these applications there should be some attempt to see whether the matters can be resolved by conciliation. If that is not possible to resolve those matters by conciliation we would be seeking both forms of relief today.

PN6

It is our intention to seek the outcome that that stoppage not affect this project in whatever way is necessary to achieve that end. If there can be an agreement then that is obviously the best outcome and the preferred outcome. In the absence of that our instructions are to seek orders of this Commission and the relevant basis to proceed in another place to seek appropriate injunctive relief if necessary, hence we do require a request from the Commission of the relief that we seek today to enable us to approach the courts tomorrow in advance of the action planned on Wednesday.

PN7

THE SENIOR DEPUTY PRESIDENT: Just in respect of the 166A, Mr Watson, what do you specifically say is the conduct in relation to which the certificate should issue?

PN8

MR WATSON: Your Honour, we have taken the option of setting out the circumstances in some detail in the notice. The requirement for a notice is simply a notice with some mention of the conduct, but what we've done is in the notice set out what we state to be the background of this matter, the mass meeting notice, the discussions which have occurred between Thiess John Holland and the CFMEU since the notice was issue regarding the mass meeting. At paragraph 16 we have summarised what we say to be the conduct referred to in the notice, which is action by the CFMEU.

PN9

We say that by virtue of organising and convening a mass meeting during working hours for this Wednesday, and issuing a leaflet with the comments that are contained in that leaflet together with communications with delegates and members employed by my client, the union has engaged in and is engaging in each item of conduct in paragraph 16. That amounts to a threat to withdraw labour at the project on 4 May, a threat to engage in unauthorised work stoppages on 4 May, a restriction on the performance of how work is conducted, the threat of failure or refusal to attend work, the organisation of employees to attend the mass rally and the mobilisation of employees to attend the mass meeting.

PN10

And we say that when a union organises a mass meeting, something called a mass meeting, and then communicates with its members to encourage them to attend knowing that for those people it is working time, it involves the organisation, the encouragement and inciting of employees to engage in industrial action, and that is the conduct which commenced last week by the issuing of the notice and is continuing so long as that notice remains extant, and could only cease by the reversal of the actions that have been undertaken, in other words, the cancelling of the notice or the communication to employees that they should not attend the mass meeting, they should alternatively attend for work.

PN11

So we say that's the conduct and that it is continuing, and that pursuant to section 166A we ask, and we say that the Act requires the Commission to make efforts to stop that conduct, and that would commonly be through a conciliation proceedings. Can I also mention, your Honour, something which is probably well known, but ought to be emphasised. The Mitcham-Frankston Freeway Project which is now known as the Eastlink Project, or the Mitcham-Frankston Eastlink Project, the full name - just the Eastlink Project. I thought we had a variety of names since it was first mooted. But it is the largest infrastructure project in Australia at the moment, and it is a very significant project estimated to cost in the order of $2.5 billion.

PN12

It has taken some time in its establishment, the awarding of the project to the joint venture and also some time in establishing the industrial arrangements that are in place. There are two certified agreements certified by the Commission covering this project. Agreements have been made with the Australian Workers Union and the CFMEU, those agreements followed an exhaustive process of conciliation in the Commission, and a significant commitment from the union representatives as well as the company in reaching agreements which really make this project, designed to make this project very much a success for all of the stakeholders, including the community.

PN13

But after some initial difficult times it was clear to all parties that it was in everyone's interests to make a commitment and commit to the project and allow the project to proceed, and employment to commence, and that point having been reached the employment has commenced and it is, we say, very important that it continue in a constructive and productive manner, and the relationships that were built as a result of making those agreements be capitalised on by responsible practices during the construction phase.

PN14

In terms of the logistics of a project of this nature there is a pattern of interruption to projects for reasons relating to inclement weather which happens in Victoria during the winter months, and operations cannot proceed uninterrupted by the weather during that time if the weather patterns conform with the norm. So it is very important to make appropriate use of the good weather periods as long as that lasts, but there is a small window before the worst weather comes along to make sure that as much work as possible can be undertaken.

PN15

And when one considers the delay in getting the agreement and getting the project started, the importance of getting as much work done - - -

PN16

THE SENIOR DEPUTY PRESIDENT: There is no rain forecast for Wednesday, Mr Watson.

PN17

MR WATSON: No. It's good weather for this week once again, your Honour, which really makes the point that every opportunity should be made to get as much work done as is possible, and that certainly is the need of the project, to get that much work done prior to the winter period. It probably is only until much later in the year before the weather improves such that full construction activities can regularly be undertaken without the threat of interruption due to weather.

PN18

But the agreements are very much, we would say, state of the art in terms of benefits to employees, they have very much been developed for the needs of this project with those needs being understood and accepted by the parties. It is not a building project in a conventional sense, it is a civil infrastructure project, a very significant one with specific needs. There are a lot of provisions in there about flexibilities and hours of work and rostered days off to make sure that there is limited disruption and maximum work can be undertaken. We say that it is totally against the spirit of the agreements that there will be interruptions of this nature.

PN19

Notice that's been issued by the CFMEU raises issues which are beyond the control of Thiess John Holland. There really is very clearly a protest of a political nature and a protest against the federal government, and plans which the union says exist which have an impact on unions, their members and their families. There's nothing really that is directed at the employer in this matter and nothing that the employer can really do, but the notice says that, issued to members of the CFMEU, that:

PN20

We must all be at Festival Hall on this day to hear for ourselves how the political aims of the federal government's anti union campaign will affect each and every one of us.

PN21

And it says things like:

PN22

Be at Festival Hall for the political rally that will echo all the way to Canberra.

PN23

Et cetera. Your Honour, we believe that there is really a narrow set of facts and circumstances and a narrow set of issues which could be the subject of conciliation and attempts to stop the conduct, but nevertheless we believe it is appropriate for the Commission to make those efforts, and that's required by the Act, and we submit that that's appropriate that that be done in conference. We propose that you adjourn the matter into conference to take those necessary steps. If those efforts are unsuccessful we will be formally seeking relief in both applications.

PN24

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Watson. Mr Maddison?

PN25

MR MADDISON: Thank you, your Honour. Your Honour, perhaps it may be said in respect of our members, to paraphrase Bob Dylan, you don't need to be a weather man to know which way the wind's blowing, and it may be that, also with respect to some of Mr Watson's submissions perhaps I put that.

PN26

THE SENIOR DEPUTY PRESIDENT: It's the first time I've had Bob Dylan quoted in the courtroom, Mr Maddison. I've been trying to get a line of Mr Dylan's in for a while. I've had a few others, but not Bob Dylan.

PN27

MR MADDISON: Your Honour, I don't intend to go to what is said to be the facts of the matter at this stage, simply that if the matter can't be resolved in conciliation then there will need to be some evidence of some of their assertions put from the bar table. I put the applicants on notice in respect of that. I don't think there necessarily has to be a great deal of evidence but there needs to be some evidence before you as opposed to the grounds in the 127 application and the notification of the 166A of the Act.

PN28

Your Honour, we don't concede that there be jurisdiction to issue a certificate under 166A, but we certainly don't oppose the Commission exercising powers of conciliation, and we note that those same powers would be available under the section 127 in any event, and we're happy to see how far we can progress the matter. That's all we have to say at this stage, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr Maddison. Anything further before we go off the record, Mr Watson?

PN30

MR WATSON: No, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: I'll go off the record, thank you.

<SHORT ADJOURNMENT [10.20AM]
<RESUMED [11.35AM]

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Watson?

PN33

MR WATSON: Thank you, your Honour. We're indebted for the efforts of yourself in conference with the parties, and I can say that the conference convened by yourself with the parties has led to some clarification of the likely circumstances on Wednesday of this week, and that to some extent there are assurances as to the level of disruption which my client views as positive and, in particular it's been indicated that the employees - - -

PN34

MR MADDISON: I'm sorry to interject at this stage, your Honour. Your Honour, generally the view of what takes place in conciliation stays there, and I think that Mr Watson now is perhaps going to tread beyond the bounds of what in our submission is acceptable in relation to that, otherwise it defeats the purpose of having those conciliations if what transpires in that level then becomes on the record. So we would object to Mr Watson going any further than he has.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Watson?

PN36

MR WATSON: Your Honour, I'll proceed in this way. There has been some clarification and as a result of that clarification my client has determined that it will not proceed with its notice under section 166A of the Act, and withdraws that notification. However, the issues between the parties do remain tangled up, as it were, and it's our desire to proceed for orders under section 127 of the Act, directed at the threatened, impending and probable industrial action that we say exists. We would propose to briefly outline the basis for our application, briefly call some evidence, and we seek the orders, whether on an interim or final basis, but we seek those orders on an urgent basis.

PN37

Your Honour, the application under section 127 contains grounds and alleges circumstances which revolve around the issuing of what's termed a flier, which was attached to the application, which is a notice convening a mass meeting under the heading of a Construction Worker, and authorised by two state secretaries of different branches of the CFMEU operating in Victoria. The notice is very clear on its face as to the convening of the meeting and the encouragement of members of the CFMEU to attend that mass meeting scheduled for 10 am on Wednesday, 4 May.

PN38

We would propose to briefly call some evidence as to how that notice came to our attention and the circumstances that have existed on site, and communications between representatives of the joint venture and officials of the union. But we say in those circumstances that very clearly the CFMEU is planning a mass meeting on Wednesday, that is during work time for this project, that that action, leaving the work site, leaving the work, not performing work, clearly amounts to industrial action, and to the extent that it is communicated or known in advance that industrial action is threatened, to the extent that it can be expected to occur in the near future it is impending, and to the extent that the CFMEU having issued that notice and not withdrawn it in any way countermanded and communicated that employees not attend, then industrial action in accordance with that notice is probable, and that industrial action concerns work that is regulated by a certified agreement of this Commission, being the Mitcham-Frankston Project CFMEU Construction Agreement 2005-2008, and that therefore the jurisdiction necessary to make an order under section 127 exists.

PN39

We say that it then becomes a question within the Commission's discretion as to whether an order should be issued, and in our submission in due course we will put submissions as to those discretionary factors that we say clearly jurisdiction exists. And we say that the action in the circumstances with a project of this nature over industrial action over a mass meeting, to attend a mass meeting over political issues is not in any way legitimate. It will cause disruption to the project. There is no reason why meetings of this nature need to be held during working hours or away from the job, or in any way such as to interfere with work, and therefore the action is illegitimate to the extent that it should be subject to an order under section 127.

PN40

The evidence we propose to call is from Mr Rzesniowiecki, who is the general manager of human resources for the project. If it's convenient, your Honour, I would call Mr Rzesniowiecki now.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

<JULIAN ANTHONY RZESNIOWIECKI, AFFIRMED [11.43AM]
<EXAMINATION-IN-CHIEF BY MR WATSON

PN42

MR WATSON: Mr Rzesniowiecki, could you tell the Commission your full name and business address?---Julian Anthony Rzesniowiecki, and our business address is 68 Ricketts Road, Mount Waverley.

PN43

And your current position and responsibilities?---I'm the general manager for human resources on the Eastlink Project, in that I'm responsible for human resources and also industrial relations on the project.

PN44

And briefly your background and experience prior to joining the Eastlink Project?---I guess I've had a career in industrial relations and human resources management over many years in a number of different industries.

PN45

Can I show you this document please. Have you seen that document before?---It's a photocopy of a colour version that I received.

PN46

Can you tell the Commission the circumstances that you received this
document?---I was attending a meeting at our Knoxfield office on Thursday afternoon of last week, and Bob Faithful, who is the general superintendent on the job, approached me and handed me a copy of the notice, and he had indicated to me that Ralph Edwards of the CFMEU had been going around to our various work sites distributing the notice and advising our employees that they were to attend the meeting that was described in this notice on Wednesday of this week.

PN47

Do you know the basis for Mr Faithful's statements to that effect?---Well, I said to Bob, or I asked Bob whether he had spoken to Mr Edwards himself, and he said he had only sort of spoken to him in passing, not discussed the detail. And so I said to Bob that I would contact Mr Edwards, which I indeed did also on the Thursday afternoon around a quarter to five, and I asked Ralph what was the circumstances of the mass meeting, and I started off by saying to him, I assume that people working on this job wouldn't be expected to attend given the nature of the agreement that we'd reached with the CFMEU only quite recently, and the fact that we're all trying to establish an agreement and a relationship which actually demonstrated that the federal government's proposed legislation wasn't required because the parties could actually reach agreement on these sort of matters and conduct themselves without that sort of action. And Ralph said no, no, that people were expected to attend. I said is there any way that he can consider a dispensation for our job, and he said no, that he was under orders. I said under orders from whom? And he indicated that if I needed to take the matter further I would have to speak to John Cummins, which I also did.

**** JULIAN ANTHONY RZESNIOWIECKI XN MR WATSON
PN48

What was the substance of the discussions with Mr Cummins?---I guess a similar sort of discussion. I rang John, asked him if he had some time to talk, he said he did, and I said I want to speak to him about the mass meeting which was proposed for Wednesday. I said to him that I understood that Ralph was directing people to attend the meeting, and I asked whether our job could be excused from attending given the circumstances of us recently reaching our certified agreement and on the basis of endeavouring to get the job started off on a positive way, or in a positive way rather than having conflict this early on. John said that that wasn't possible under the circumstances. He intimated that the CFMEU weren't out to target TJH or have us at the vanguard of any future industrial action regarding this topic, but that there was no way that we could be excused from the meeting.

PN49

What did you understand that to mean, no basis to be excused from the
meeting?---Well, what I understood was that our employees were being directed to or instructed to attend, and that I suspect, well, I understood that the meeting was going to start at 10 o'clock, so what that meant, what I understood that to mean was that work may commence briefly on Wednesday morning, but then people would have to stop work, return to the site huts, make their way into the city, and then it was unclear to me the extent to which the meeting would continue and whether people would actually return on that day.

PN50

Yes, thank you. No further questions.

PN51

THE SENIOR DEPUTY PRESIDENT: Mr Maddison?

PN52

MR MADDISON: Thank you, your Honour.

<CROSS-EXAMINATION BY MR MADDISON [11.49AM]

PN53

MR MADDISON: Mr Rzesniowiecki, you did not see Mr Edwards hand out any of these fliers to your employees, is that correct?---No, I didn't see it personally.

PN54

And you have not spoken to any of your employees about whether they intend to attend the meeting on Wednesday, have you?---No, I haven't spoken to them, but Mr Edwards indicated that they were intending to attend.

PN55

THE SENIOR DEPUTY PRESIDENT: I'm sorry, just before you go on with your cross-examination, Mr Maddison. Mr Watson, was it your intention that the flier be entered into evidence?

**** JULIAN ANTHONY RZESNIOWIECKI XN MR MADDISON
PN56

MR WATSON: Yes please, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: Did you need to tender it through this witness?

PN58

MR WATSON: Yes, I tender the notice as I've handed to the witness.

EXHIBIT #TJH1 FLIER ISSUED TO CFMEU MEMBERS

PN59

THE SENIOR DEPUTY PRESIDENT: Sorry about that, Mr Maddison, go ahead.

PN60

MR MADDISON: Yes, thank you, your Honour.

PN61

So you only have Mr Faithful's word that Mr Edwards distributed the flier to some of your employees?---And Mr Edwards told me that he'd been around and distributed the notice.

PN62

And your understanding of the meeting on Wednesday is that it's in relation to proposed changes to the legislation coming from the federal government?---That's my understanding, yes.

PN63

And it's part of your complaint, is it not, Mr Rzesniowiecki, that these matters don't really affect your employees directly so therefore they shouldn't attend?---I guess that my view would be that although the matters may affect our employees, that I would prefer that the meeting was held at a time where it didn't disrupt our business as well, so that's my concern about the action.

PN64

But you recognise, notwithstanding the timing of the meeting, that your employees would have an interest in the proposed changes?---Yes, certainly our employees would be covered by the legislation if it changed, as they are covered by the current legislation.

PN65

Thank you, Mr Rzesniowiecki. No further questions, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Any re-examination?

PN67

MR WATSON: No re-examination.

**** JULIAN ANTHONY RZESNIOWIECKI XN MR MADDISON
PN68

THE SENIOR DEPUTY PRESIDENT: You're free to stand down now, thank you, Mr Rzesniowiecki. Thank you for your evidence.

<THE WITNESS WITHDREW [11.52AM]

PN69

MR WATSON: That's the conclusion of our evidence, your Honour. We submit that if my learned friend has any evidence it should be put forward now, otherwise we could move to submissions.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes.

PN71

MR MADDISON: Your Honour, we don't intend to bring any evidence.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN73

MR MADDISON: Thank you, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead, Mr Watson.

PN75

MR WATSON: Your Honour, we submit that there is a jurisdictional basis for making the orders and it is appropriate that the orders be issued in these circumstances. We say that there is clear evidence that officials of the CFMEU have attended on site and have distributed the flier which is exhibit TJH1. That flier is clear on its terms and both in terms of the nature of the action, the calling of a mass meeting at 10 am on Wednesday, 4 May, it's clear in terms of the issues which have prompted the mass meeting. It is, as the heading states, a protest against the political attacks on the industry, and it elaborates further that that in turn relates to possible or proposed legislation which may be brought before parliament later this year.

PN76

And it is clear that the message to employees on the terms of the notice and also in the nature of communications accompanying the notice that employees of the Thiess John Holland Joint Venture are expected to attend this mass meeting and leave work for that purpose. A number of aspects of the notice make that quite clear, irrespective of the communications that have been made accompanying the notice. And the third paragraph of the notice, which states:

PN77

That's why we must be all at Festival Hall on Wednesday, 4 May -

PN78

Et cetera. And finishing with the injunction "Be at Festival Hall on Wednesday,
4 May for the political rally that will echo all the way to Canberra," is a clear message on behalf of the CFMEU to its members engaged on this project that the union expects them to attend the rally and leave work for that purpose.

PN79

The employer does not authorise in any way people being absent from work, and we submit there can be no doubt that leaving work for the purposes of attending this mass meeting is industrial action for the purposes of the Act. We say that the action of organising and being involved in this industrial action is industrial action engaged in by the CFMEU now, and for as long as they issue notices without withdrawing them their conduct amounts to being involved in that industrial action, and that the actual organising of people to depart from work for that purpose and the convening of the meeting during working hours is industrial action by the union.

PN80

It is also industrial action of the employees engaged by the joint venture to leave work without authorisation of the employer when they are rostered to work during the relevant period, and in order to attend the mass meeting at 10 am at Festival Hall in the city, in order to be there on time the employees would need to leave work at Ferntree Gully or any other locations where the work is being undertaken in advance of that 10 am start, probably an hour in advance in order to arrive at Festival Hall for the 10 am start.

PN81

There is no indication on the notice as to the duration of the meeting. There are extended shifts scheduled for Wednesday of this week, and although it is possible that there might be a return to work during the course of the day, obviously work at the commencement of the day will be limited and it will be interrupted, and work will not be able to be commenced in the normal way until all employees rostered to work are back at work ready to commence their duties as scheduled for that day.

PN82

We say that section 127 is directed at permitting orders to be made in circumstances where industrial action may not be happening immediately. We say as far as the union are concerned the action is happening because they're organising this action and have issued directions, and those directions are extant. But in terms of the employees the action is more in the nature of something that is threatened to occur on Wednesday and is impending and is probable. It's not necessary for us to establish each of those, but we say that the industrial action subject to the order we seek in terms of employees and in terms of the union is happening or threatened, impending or probable.

PN83

We further say that it's clear, and we don't understand that this could be disputed, that the work in question is regulated by a certified agreement of the Commission, recently certified under section 170LL of the Act. And although it is likely also that other paragraphs of section 171 are also satisfied, it's only necessary for the Commission's jurisdiction that the industrial action be in relation to work regulated by a certified agreement.

PN84

We say that essentially, as we submit, there is jurisdiction to make an order. It falls with the Commission's discretion as to whether an order should be issued in these circumstances, and the test as established in the Coal and Allied case is whether the Commission is of the view that the industrial action is illegitimate to an extent that it should be rendered unlawful by an order of the Commission. That is the effect of an order under section 127. An order having been made of that nature renders the continued action of the union and future action of employees contrary to the order and in breach of the Act, and renders those people involved subject to penalties under the Act.

PN85

And there can be further enforcement of orders of the Commission by way of injunction to the Federal Court, but the mere non-compliance of an order of the Commission under section 127 is unlawful and carries with it financial penalties under the Act. Your Honour, it becomes an issue as to whether there could be any justification for the stoppage that is planned, and we rely on a number of the circumstances regarding this agreement and this project which are summarised in the application.

PN86

The Eastlink Project is the largest infrastructure project being undertaken in Australia, it is intended to operate for a number of years, it has a budget of approximately $2.5 billion. It connects existing freeway projects, freeways within the city of Melbourne to other freeways and arterial roads, suburban residential centres throughout Melbourne. It is a very significant project which is in the nature of a road construction project but it's one with significant complexity, a number of bridges and tunnels as part of that project.

PN87

There has been, in order to establish the greenfields agreements which have been certified by this Commission, a significant amount of goodwill shown by the unions that are parties to certified agreements, the CFMEU and the AMWU, and the joint venture in terms of a package of terms and conditions for employees on the project, which are generous by community standards and which provide flexibilities operationally to ensure that the project is conducted in a smooth and productive manner.

PN88

It is essentially a civil project, it does not involve the building of buildings as such. The structures which are to be constructed are in the nature of bridges and other roadways rather than tunnels, rather than buildings in a conventional sense. And it is a project, when completed, which will be a landmark infrastructure project for the state of Victoria and for Australia. It is obviously in the interests of the employees and the employer and the community that the project is conducted in an environment of stable relationships and constructive relationships, and it's my client's firm belief that participating in the negotiations and reaching an agreement which has been certified by this Commission, the best possible basis for those sound constructive relationships has been established under the current provisions of the Act.

PN89

The duration of the agreement is intended to approximate the duration of the project and would therefore be the agreement to effectively apply for the duration of the agreement, for the duration of the project. We submit that there could be no justification for industrial action to occur on this project which has only just commenced in a matter of weeks ago, earlier this year.

PN90

Employment only commenced after the agreements were reached with the two relevant unions and certified by this Commission. The work that is being undertaken primarily in relation to earthmoving is essential work that is required to enable further works to be undertaken and that no purpose whatsoever for the purposes of the project, or for the significance of employees in relation to their terms and conditions of employment could be gained by attending a mass meeting over alleged political attacks in the industry this week.

PN91

We say that what is planned and what is evidenced from the notice an industry-wide political protest and that attendance at such a protest during working time is not legitimate, could not be viewed as legitimate or appropriate, and could not be excused or sanctioned by an employer, or we submit, this Commission. We say, therefore, that it is appropriate, given the nature of the evidence in this matter, for an order to issue under section 127 of the Act, and we would trust that that order being issued, it would be respected by the union and also the employees. They would therefore remain at work and not attend and the union would, though it's communication to its members engaged on the site, withdraw the notice and the direction and encouragement to attend the meeting as a result of the order issued by the Commission.

PN92

THE DEPUTY PRESIDENT: Yes, Mr Watson, you have provided the Commission, as part of your application, with a draft of the order that you seek. Is that still the form of order you seek?

PN93

MR WATSON: Yes, it is the form of order, your Honour. There may be some typographical or non-consequential aspects, but that is the nature of the order. It seeks to identify the parties; it follows a pattern of orders issued by the Commission in the other matters. The direction itself is in paragraph 4 of the order we seek. It's directed to the unions, their officials, delegates, employees and agents as well as employees of the joint venture on the Mitcham-Frankston project who are eligible to be members of the CFMEU. It requires the CFMEU, as in other cases, to prepare a written notice and provide that to representatives of the company through their solicitors so that that can be communicated to employees, and it provides for streamlined service provisions in light of the urgency of the matter.

PN94

THE DEPUTY PRESIDENT: Yes. Just a couple of things on that draft,
Mr Watson. Do you seek to tender that, by the way.

PN95

MR WATSON: It was part of the application, your Honour. If it's not part of the file, we tender it, or we tender it in any event as the order that we seek.

EXHIBIT #TJH2 - WRITTEN NOTICE

PN96

THE DEPUTY PRESIDENT: I note that in the clause with respect to - it's actually clause 4, Direction Industrial Action, Estoppel Not Occur, at 4.5 there is a written notice that you are suggesting should be prepared by the CFMEU and it talks about persons employed by Thiess. Is that the correct circumstance with regard to the employees of the joint venture?

PN97

MR WATSON: No, your Honour. I think the second paragraph refers to Thiess John Holland in the name of the order, but the third paragraph is the one referred to, it should refer to - it should be Thiess John Holland. Further, in the second dot paragraph in that draft, there's another mention of Thiess which should also be Thiess John Holland. It's an unincorporated joint venture between those two corporations.

PN98

THE DEPUTY PRESIDENT: The employees are actually employed by the joint venture, is that correct?

PN99

MR WATSON: Correct.

PN100

THE DEPUTY PRESIDENT: Further, I note that you seek a term of 3 months, Mr Watson.

PN101

MR WATSON: The basis for the application is the stoppage for Wednesday of this week.

PN102

THE DEPUTY PRESIDENT: Yes, 3 months would more than adequately cover it, would it not?

PN103

MR WATSON: Would more than adequately cover those circumstances. Yes, sir.

PN104

THE DEPUTY PRESIDENT: Yes, with the emphasis on the more I am talking about.

PN105

MR WATSON: Yes. It would not be necessary to have it applied for 3 months for the purposes of this application.

PN106

THE DEPUTY PRESIDENT: Yes. All right.

PN107

MR WATSON: Unless there are any other questions, your Honour, those are our submissions.

PN108

THE DEPUTY PRESIDENT: Thank you. Mr Maddison?

PN109

MR MADDISON: Thank you, your Honour. Your Honour, firstly in relation to jurisdiction and the evidence before you, I can summarise the evidence in this fashion, but an official of the CFMEU provided the flyer which is marked as TJH1 to employees of the joint venture. Although the witness didn't see it, he accepts that that happened and that was confirmed by the organiser in conversation. The evidence of the applicant in this matter doesn't go so far to say whether or not any of the employees will or won't attend the meeting.

PN110

So, what we would say is that in respect of the evidence, though there may be some evidence in respect of the CFMEU through its officials, there's no evidence as to whether or not any employees of the joint venture will attend the meeting on Wednesday. We would say in respect of the employees of the joint venture, no order should issue. In respect of the action of the CFMEU, we would say that the evidence before you is no more than the union has conveyed the fact that a meeting is taking place on Wednesday and the fact that people have been invited to attend. We should say that such a situation is analogous to a picketing circumstance where the law says that it is okay to communicate the fact to an existence of a dispute if you leave it up to individuals as to what they may or may not do in the circumstances.

PN111

If you go beyond that and prevent people from entering a place, or actively encourage them by one way or another to taking certain action, then you breach the law. We would say that in this situation the evidence before you is analogous to that, communicating the existence of a mass meeting without more, it would be our submission that that would not be sufficient to warrant the jurisdiction of the Commission to find that industrial action is taking place in relation to the CFMEU officials. We do note that Coal and Allied have held - the Full Bench found, that although there is no onus as such, in such proceedings as this, it is up to the applicant to establish at least a prima facie basis there are adequate grounds for the Commission directing the relevant action to stop or not occur.

PN112

We would say in the current present circumstances, you should not be, and in our submission, be satisfied that that jurisdictional requirement exists. Your Honour, if you're against us on the jurisdictional ground, under 127(1), that is, industrial action is happening, threatening, pending or probable, we would say as a matter of discretion that such orders should not issue in the present circumstances. Again, we summarise the evidence that we'd rely upon for the discretion matters as such, that Mr Rzesniowiecki conceded that the employees of the joint venture do have an interest in the changes or the proposed changes to the legislation emanating from the Federal Government and that those people would be covered by any changes, and it was not suggested that they do not have an interest or were doing this out of some spite to the joint venture.

PN113

There's no suggestion that they didn't - people who may attend don't hold views about this matter and would like to be informed about what is happening, the things that are going to affect them potentially in the workplace. We would say in those circumstances it's a matter of discretion that orders should not be issued. I hand up firstly, your Honour, a decision of the Federal Court of Australia. It's a decision of French J, Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commissioner Lang of the Industrial Relations Commission and Another. Your Honour, if you can have regard to page 17 of 22 of the internet version that I have provided?

PN114

This is an application brought to enforce 127 orders. It was in relation to - - -

PN115

THE DEPUTY PRESIDENT: I am sorry, where are you reading from?

PN116

MR MADDISON: Sorry, page 17 of 22; just before I go to that, I was just going to briefly go to the background, in relation to your Honour, enforcing section 127 orders. It was in relation to a protest in relation to changes to Western Australian Industrial Relations legislation. That can be found on page 4 of 22. Your Honour, I take you to the comments which we say are apposite to the present circumstances, page 17 of 22. About point 1 or 2 of the page, the first paragraph commencing on page 17, where his Honour held:

PN117

At a more fundamental level, such orders may interfere unduly with basic liberties. When the conduct in question ...(reads)... should be respected and given weight in the exercise of the discretion to stop or prevent the conduct.

PN118

It then goes on:

PN119

The principle in forming the exercise of the discretion cases which industrial action is brought as, or as an incident of, expression ...(reads)... abrogate fundamental freedoms should be conservatively constrained.

PN120

Then he quotes the High Court in Coco v The Crown. I ask you to read that, your Honour. Again, as we say, that it's apposite to the current circumstances.

PN121

THE DEPUTY PRESIDENT: What was the nature of the stoppage for industrial action that was envisaged in this matter, Mr Maddison?

PN122

MR MADDISON: Just bear with me for one moment, your Honour?

PN123

THE DEPUTY PRESIDENT: Yes.

PN124

MR MADDISON: If you go to page 5 of 22, it has a sequence of events. Firstly, at the top of page 5, on 26 April in the case, there was a meeting of shop stewards and officials, the secretary of the union got involved, they commenced the strike at 1.30 pm on 28 April, and then the plant operators, a strike at midnight, 28 April, 7 am the following morning, 24-hour stoppage by employees of the Bunbury Power Station commenced, and there was a public rally on 29 April.

PN125

THE DEPUTY PRESIDENT: Yes, but was the action that gave rise to the section 127 application in front of Commissioner Lang?

PN126

MR MADDISON: Bear with me again? It's been a while since I have read it. I picked it up quickly this morning, your Honour.

PN127

THE DEPUTY PRESIDENT: No, that's okay. Take your time.

PN128

MR MADDISON: Page 8 of 22; on page 7, on 30 April Wester Power lodged an application under section 127 of the Workplace Relations Act. On the second day, the CEPU were given until 9.30 the following morning to obtain a cessation of the industrial action, otherwise show cause why an order shouldn't issue. The form of the order is on page 8, after industrial action, it appeared, industrial action hadn't ceased. From the top of page 8, power restrictions remained in place. From perusal of the decision, your Honour, it seems the dispute was a lot larger than the one that's currently before you. That involved power restrictions in the State of Western Australia.

PN129

THE DEPUTY PRESIDENT: Yes. Marginally bigger, I would have said.

PN130

MR MADDISON: Notwithstanding that, French J made the comments that I have directed you to. Your Honour, can I also provide you a copy of a decision of Senior Deputy President Williams dated 11 August 1999.

PN131

THE DEPUTY PRESIDENT: Is that the Gordon & Gotch decision, is it?

PN132

MR MADDISON: Yes. You're obviously aware of that.

PN133

THE DEPUTY PRESIDENT: I think that was a bit different, however, wasn't it, Mr Maddison? Wasn't that about - it's a question of first instance for some delegates to attend a rally and a refusal of that request by the employer, and then action involving all employees orchestrated by the NUW and if my recollection is correct - - -

PN134

MR MADDISON: That's a fair summation of the - - -

PN135

THE DEPUTY PRESIDENT: I think what Senior Deputy President Williams found at the time, was that the refusal at first instance to allow the delegates to attend was in his view unreasonable and that unreasonableness went towards him coming to a view that a section 127 order shouldn't issue in the circumstances.

PN136

MR MADDISON: It certainly appears from the decision, your Honour, that that's correct. That that did form part of his reasoning. We would still say, notwithstanding that, that his general comments - and I refer you to paragraph 17 for instance - those comments would still be apposite to the current situation. Although we don't say that there's any criticism on the employer in this instance, there's still, in our submission, the comments in paragraphs 17 and 18 would be apposite.

PN137

Also, his Honour, Senior Deputy President Williams made findings in paragraph 15, and were no evidence was led by the employer as to the economic effect of the proposed industrial action and its operations, and on the other hand, the proposed industrial was for a limited duration. We would say, again, that those two matters are relevant and we would say would be relevant to any discretion in relation to the matter currently before you.

PN138

THE DEPUTY PRESIDENT: Yes.

PN139

MR MADDISON: Again, the protest or the rally in that instance was in relation to proposed changes to the Act which were unsuccessful at that time, but the more jobs, more pay bill was the subject of the rally. So we would say again that for that reason, that decision is of relevance to the current matter. Your Honour, I was going to provide you with a copy of a decision of - - -

PN140

THE DEPUTY PRESIDENT: Either reasonableness or otherwise of delegates attending wasn't apposite to this matter as well, was it?

PN141

MR MADDISON: It may or may not be before you, your Honour. I won't take that part of it any further. There's another decision of Munro J which refers to Gordon & Gotch, which was sought to be relied upon, a matter involving BHP. His Honour, Munro J found that the matter before him really dealt as between the employer and the employees and wasn't a wider dispute, but I refer to it to the extent to that his Honour, Munro J did, refer to the Gordon & Gotch as authority for the proposition that we're seeking to advance today. That is, that in certain circumstances of a political nature that the Commission may form a view that the discretion should not be exercised in favour of making the orders.

PN142

Your Honour, for those reasons we say that orders shouldn't be issued. If you are against us and you do issue some orders, can I take your Honour to the draft that has been provided to the Commission? Your Honour, I have made submissions as to the parties bound which really goes to the jurisdictional arguments that were our primary submission. Your Honour, in relation to the direction to stop industrial action, firstly we would say - in 4.5 which is the written notice - that an order of the Commission speaks for itself. There's no warrant, in our submission, that there be further paperwork from the union. We say that doesn't advance the order. We also say in relation to the proposed last line of the draft notice:

PN143

Please speak to your local organiser if you have any questions.

PN144

We would say that these matters are a legal matter. There are significant consequences which can flow from a person not complying with an order. We would say that with respect to local organisers in general, that they are not qualified to give what would be legal advice. Your Honour, in respect to 5, Definition of Industrial Action, the courts as well as this Commission has held that orders should be directed to the specific species, if I can call it that, of industrial action which is found to be threatening and improbable. Noting the words under section 127(1) that: the orders must be directed at:

PN145

The orders must be directed at the industrial action as opposed to any industrial action.

PN146

We would say that the definition provided in 5 of the draft orders go way beyond the evidence before you, which is from the part of the CFMEU organising it and from the part of the employees attending, a mass meeting on Wednesday, 4 May. We say that any orders should be confined to that event. Your Honour, I won't take it any further about the - sorry, before I go to the date. The service of the order, we'd say given the consequences which are previously referred to in respect of any breach, the order should be served on those who a bound by it so there's no mistake about people knowing the existence of the order and what the order actually means.

PN147

Especially if it is written in the way that we say that it should; that is, confined to the industrial action. Your Honour, very briefly in relation to the term and date of effect, really the order does not need to extend beyond midnight on Wednesday, really. We say that anything longer than that would not be necessary or relevant in the present circumstances. Unless I can be of any further assistance, those are the submissions of the CFMEU.

PN148

THE DEPUTY PRESIDENT: No, thank you, Mr Maddison.

PN149

MR MADDISON: Thank you, your Honour.

PN150

THE DEPUTY PRESIDENT: Mr Watson?

PN151

MR WATSON: Your Honour, my learned friend raises some issues in relation to the jurisdiction of the Commission, firstly in relation to employees. He says that there is no basis in evidence that employees are actually going to cease work on Wednesday and attend the mass meeting. He says therefore that there is no jurisdiction. We submit that it is necessary for the Commission in matters of this nature, as well as other matters, to apply a modicum of industrial reality. We have the circumstance where there is evidence of an official attending on site, distributing a flyer.

PN152

It is the CFMEU, it is in relation to their members, it is a strong and militant union, probably proudly so, and prides itself on its members following the encouragement of industrial action when that occurs. It's not been suggested by my learned friend that there is a basis to say that employees are unlikely to attend, or precedent would show that they don't normally attend, or nothing of that suggestion. It's simply a suggestion that because it is in the future and because there is no evidence of an employee saying, I'm going to attend, therefore the jurisdictional basis is not present.

PN153

We say that having a real view of the industrial world that the Commission is required to apply, there could be no doubt that industrial action by employees covered by this order is likely.

PN154

THE DEPUTY PRESIDENT: I think the Act only requires, in any event, doesn't it, that it must appear to the Commission - - -

PN155

MR WATSON: Probable.

PN156

THE DEPUTY PRESIDENT: Yes, to be probable. Yes.

PN157

MR WATSON: Yes, and we say it's very clear to anyone that it's likely, and we say that the requirement is well and truly satisfied in relation to - - -

PN158

THE DEPUTY PRESIDENT: Yes. I am just saying that's a slightly different test, as to whether it is probable. Whether it appears to the Commission that it is probable is a different test to whether in reality or as a matter of fact it's probable.

PN159

MR WATSON: Yes, that's correct, your Honour. It does involve an assessment by the Commission of a level of satisfaction which we say would be based on industrial knowledge and expectations from those experienced in the area. There could be no basis to suggest this - construction workers, members of the CFMEU, have some history of not complying with the sort of encouragement that is clearly evident in this case, so that the clear conclusion we say the Commission should reach is that industrial action by those employees is impending and probable. To the extent that it's been communicated as a future event, it's threatened as well.

PN160

To the extent that it involves the union, it's happening by virtue of the organisation of the stoppage. It further said that the CFMEU should not be bound by an order, it has no jurisdiction for that because it's in the nature of communication of the existence of a meeting and employees making their own choices. Again, we draw attention to the wording of the order and the clear messages which come from such communications being communicated to employees by way of a personal visit on site by an official of the union personally distributing this leaflet.

PN161

There is clearly an expectation by the CFMEU that employees attend. There is clearly an encouragement. It is likely also to amount to inciting employees to engage in industrial action, and section 4(8) of the Act has a reference to conduct. It says:

PN162

In this Act, a reference to engaging in conduct includes a reference to being whether directly or indirectly a party to or concerned in the conduct.

PN163

That effectively extends, we say, the type of conduct which is subject to - in the definition of industrial action and we say there's clear authority that the union in organising and stoppage of work and encouraging employees to participate in that stoppage is engaging in industrial action itself. Again, it is simply necessary to apply a real world view of the circumstances to come to that conclusion. My learned friend also referred to a decision of French J of the Federal Court in the CEPU and the Commission and Another. I think he put it more in terms of a discretionary factor, but in reality this decision relates to jurisdictional issues.

PN164

It is an application by the CEPU for a prerogative writ directed against the order issued by the Commission under section 127, namely, the employer who sought the order is the second respondent. That was a notice of motion in the Federal Court and that notice of motion was unsuccessful. That notice of motion by the CEPU was dismissed. In the course of determining the issues, one of the issues raised was that there is constitutional or an implied constitutional limitation which means that orders could not be made in circumstances where action of a political protest nature is being engaged in because to do so would impair or abrogate the fundamental freedoms.

PN165

That was the nature of the argument. That argument was unsuccessful in this case. French J set out the argument and my learned friend referred to certain parts of it, but concluded at page 18, the second paragraph:

PN166

There is no doubt, however, that to the extent any communication also constitutes an industrial action for the purposes of the section, it is amendable to the application of the section. Nothing in the language of section 127 exempts such action from its potential application.

PN167

The decision goes on to uphold the validity of the order issued which was really directed at a picket line falling within the order of the Commission where there was protests about State political reforms. In the course of dismissing that notion that there is a jurisdictional impediment, there were comments that could be said to also apply to the discretionary factors, although the discretionary factors are matters for the Commission in an order, or the Court if it's making an injunction enforcing an order. That was not the case here. At the top of page 18 in the first paragraph, there is this passage:

PN168

Thus, the CEPU and its members and the employees of Western Power were entirely free to communicate to the public their concerns about the third wave of industrial legislation in a variety of ways, but were not and could not have been industrial action for the purposes of section 127. These could extend to rallies and pickets.

PN169

Et cetera, but obviously in non-working time. Insofar as the discretion is involved, that's clearly the case here as well. No one is saying that employees of TJH or the CFMEU are denied from engaging in free speech, political activities, but our objection to it is that it is sought to be undertaken during working hours at a time which significantly disrupts the normal work of the employees concerned. If it could have been organised outside of working hours, we wouldn't be here making this application. Justice in that case, there can't be any jurisdictional reasons why an order would not issue when what is at stake is a rally for political purposes.

PN170

We also say that for discretionary reasons, the same conclusion should be reached as was reached by Commissioner Lang in that case and has been reached by numerous members of the Commission in similar circumstances. The notion of political stoppages and stoppages over industry-wide, national events, is in fact mentioned and dealt with in the Coal and Allied decision itself. There had been a history of political stoppages in the coal industry which led to those orders being issued. There have been various other orders issued by the Commission in other cases; in the construction industry and the coal industry, the manufacturing industry.

PN171

Each case depends on its own circumstances and separate discretions are involved, however there is ample precedent, we submit, for orders being issued where the industrial action concerned is for the purpose of directing attendance at a political rally not occur. As your Honour has noted, the Gordon & Gotch situation is perhaps an exception to that, but the circumstances are distinguishable. Obviously all of the circumstances need to be taken into account and would be in the exercise of the broad discretion which is involved. However, central to his Honour, Senior Deputy President William's conclusion in that case was the assessment made of the employer's conduct which could have led to less disruption in that case, but those circumstances are not present here.

PN172

There has been no evidence of any such suggestion by the union that the alternative position of a delegation or the like was available. In an overall sense, we submit that nothing falling from my learned friend affects the discretion which is involved and the fact that in no circumstances - our submission, rather, that in no circumstances should attendance at this rally be in any way condoned by the Commission by not issuing an order. It is responsible to have work continue normally in a project of this nature or any other project really, and we say that following that basic principle, where an employer seeks an order of the Commission, the exercise of the Commission's discretion should be that the order be issued.

PN173

My friend goes to certain aspects of the notice and where he objects to - the order of the Commission. He objects to the requirement that the CFMEU prepare a written notice. Your Honour, we are dealing here with a situation where the mass meeting is being organised by the union and it is communicated by the union by way of a flyer which includes clear encouragement, if not stronger requirements, of employees to attend. We submit that although this form of a notice is common in all orders, there are additional reasons why in these circumstances an order should include a requirement to prepare a written notice because it, if complied with - as we expect it to be - would clearly countermand the notice that has been issued by the union to date.

PN174

Informing employees that from the union's point of view they are aware and are communicating - - -

PN175

THE DEPUTY PRESIDENT: I don't think you need to take me any further to that, Mr Watson. If I was of a view that an order should issue, then I will be of the view that a notice should also be issued by the union subject to some consideration of the point that Mr Maddison raises about the last sentence of that proposed order.

PN176

MR WATSON: Yes. Perhaps I could mention that last sentence?

PN177

THE DEPUTY PRESIDENT: Yes.

PN178

MR WATSON: Your Honour, we submit that an organiser, having communicated the holding of a meeting, that organisers are required to be in a position to respond to questions of their members in relation to the meeting and their attendance. Maybe they're not lawyers to give legal advice, but they have a role to convey legal advice which can be communicated to the relevant person so he can convey the position in a legal effect. That's a straightforward thing, if there's a modicum of goodwill involved. We say that it's appropriate that any questions be directed in that way so that the union can deal with any such questions that arise.

PN179

They don't have to answer the questions immediately or at all, but at least that's an appropriate mechanism, given the origin of this planned stoppage. We also say that the definition of industrial action should be broad. If the amendment my learned friend proposes is made, it could be that the union simply changes tack and doesn't sanction the stoppage but involves a ban on all work being performed on that day, during that relevant time period such that employees remain at work, but don't work. Now, to think that that could be an available device to circumvent the order, that would clearly have the same effect.

PN180

We say it's a situation which should not be permitted to occur by way of a wording of the order. Clearly, there is a stoppage proposed, but we say that that being the case, the obligations of employees should be made clear, and that is that they should remain at work and perform work as normal without bans or limitations. That is the effect of the industrial action with a broader definition which follows the wording of the Act being included in the order. We say that's a standard form in orders of this Commission. Your Honour, those are our submissions in reply.

PN181

THE DEPUTY PRESIDENT: Thanks, Mr Watson.

PN182

MR MADDISON: Just one minute, very, very briefly, your Honour. I do hesitate to rise.

PN183

THE DEPUTY PRESIDENT: Yes?

PN184

MR MADDISON: Just in relation to the decision of French J, it is certainly true what my learned friend said about that case, but if I just briefly take you to the conclusion on page 20, where he does find, as indicated by Mr Watson, that the order was valid. He says:

PN185

For the reasons outlined above, I am satisfied that the validity of the order of 1 May 1997 has not been impinged upon ...(reads)... whether discretion might otherwise have been impinged is not before me.

PN186

We say that that matter is before you, the matters that were raised by French J through the decision are relevant for you at first instance, your Honour.

PN187

THE DEPUTY PRESIDENT: Yes. Anything that arises out of that, Mr Watson?

PN188

MR WATSON: No, thank you.

PN189

THE DEPUTY PRESIDENT: I am going to adjourn briefly just to consider some of the things that have been put to me. I will return in about 20 minutes and provide you with a decision.

<SHORT ADJOURNMENT [2.50PM]
<RESUMED [1.22PM]

PN190

THE DEPUTY PRESIDENT: Thank you for waiting and thank you both for your submissions which I have afforded the proper regard. I am of a view, based upon the evidence, that the jurisdictional prerequisites for the issue of an order under section 127 of the Act have been met. Specifically, the actions of the union in organising the mass meeting for 4 May 2005 and the proposed stoppage of work by employees of TJH constitute, in my view, industrial action within the meaning of the Act. It appears to me, as a matter of industrial reality, that in the case of the union, industrial action is happening and in the case of the employees of TJH, industrial action is threatened, impending or probable.

PN191

Further, I am satisfied that such industrial action is in relation to work that is regulated by a certified agreement. In coming to the conclusion I have come to with respect to the exercise of the Commission's discretion, I am conscious of both the authorities generally and those authorities specifically relied upon by the parties. The industrial action appears to me to be illegitimate in the sense outlined by the Full Bench in Coal and Allied. It retains the character of illegitimacy despite its political nature. On this basis, and cognisant of the objects of the Act, I intend to provide the relief sought subject to the following amendments to exhibit TJH2.

PN192

(1) References to Thiess in paragraph number 4.5, being the proposed notice to be issued by the union, will be amended to become references to Thiess John Holland.

PN193

(2) The last sentence of paragraph 4.5, namely the requirement of the notice relating to employees being enjoined to contact an organiser, will be deleted.

PN194

(3) Thirdly, the order shall come into effect this afternoon and shall remain in force until 7 am on Thursday, 5 May 2005.

PN195

There being nothing further, I intend to adjourn.

<ADJOURNED INDEFINITELY [1.26PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JULIAN ANTHONY RZESNIOWIECKI, AFFIRMED PN41
EXAMINATION-IN-CHIEF BY MR WATSON PN41
CROSS-EXAMINATION BY MR MADDISON PN52
EXHIBIT #TJH1 FLIER ISSUED TO CFMEU MEMBERS PN58
THE WITNESS WITHDREW PN68
EXHIBIT #TJH2 - WRITTEN NOTICE PN95