C2005/3122, Transcript of Proceedings [2005] AIRCTrans 1286 (9 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11730-1

COMMISSIONER SIMMONDS

C2005/3122

SIEMENS LTD CORKE INSTRUMENT ENGINEERING (AUSTRALIA) PTY LTD
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-ELECTRICAL DIVISION SOUTHERN STATES DIVISIONAL BRANCH
s.166A - Restriction on certain actions in tort
(C2005/3122)

MELBOURNE

11.01AM, FRIDAY, 27 MAY 2005

PN1

MR R DALTON: I seek leave to appear with MR H SKENE for the notifier.

PN2

MR H BORENSTEIN: I seek leave to appear on behalf of the union. Perhaps the record should be clarified. Your associate read out the application by Siemens and another, and as I understand it it's only by Siemens. I think there was notice to that effect sent to the Commission.

PN3

THE COMMISSIONER: Yes. For some reason it's been recorded as Siemens and another.

PN4

MR DALTON: The reason, Commissioner, if I could address you briefly on that, was that the written notice that was lodged with the Commission mistakenly referred to both companies. Siemens is the only company that's notifying, and that error was - - -

PN5

THE COMMISSIONER: You're seeking leave to amend the notice?

PN6

MR DALTON: That's right, Commissioner. My instructor gave notice to the CEPU yesterday afternoon I think to alert them to that error.

PN7

THE COMMISSIONER: Okay. The reason it was read out, Mr Borenstein is because that's what it was.

PN8

MR BORENSTEIN: I'm not complaining, I just wanted to correct it.

PN9

THE COMMISSIONER: Leave has been sought to amend the application. Is there any objection?

PN10

MR BORENSTEIN: No.

PN11

THE COMMISSIONER: Leave is granted, yes. So it's just Siemens.

PN12

MR DALTON: If I could deal firstly with the formalities. As you know, service requirements are set out in rule 29, and one has to serve the notification on the union who is the subject of the notice before one lodges the notice of intention in the Commission. On my instructions the Commission should have on its file the notification along with the statement of service dated 26 May 2005 of Henrietta Jones, a paralegal employed by Freehills, and she gives a statement that a notice was served by hand at the CEPUs national office at approximately 2.15 pm yesterday, and I'm instructed that it was delivered to the state office shortly after that as well.

PN13

The notification was lodged with the Commission with that statement of service under a cover letter explaining that Freehills act for Siemens and enclosing the two documents and requesting an urgent hearing of the matter. The Registry has stamped the document and I think consistent with its practice has marked the time that it's lodged as 3.15 pm yesterday.

PN14

THE COMMISSIONER: That's correct.

PN15

MR DALTON: So in my submission that's the time from which time starts to run for these notifications. The next matter I wish to draw your attention to at this stage, Commissioner, is the conduct. 166A notifications are to be in respect of conduct, and that conduct is described in subsection 1. If the Commissioner has that in front of you?

PN16

THE COMMISSIONER: Not quite. Yes.

PN17

MR DALTON: Thanks. This is a procedural bar against a person exercising their rights under common law to sue a union or official, employee or member of such a union in relation to conduct that's described in that notice. The particular conduct that's described is conduct by the union or by the officer, member or employee acting in that capacity in contemplation or furtherance of claims that is the subject of an industrial dispute. The procedural bar is the Commission, once given a notification, has to take immediate steps to try to stop the conduct that's described in the notice and exercise its ordinary powers of conciliation and other powers incidental to that, and there is a maximum time within which those processes can be employed, after which the Commission is required to issue the certificate. That's that 72 hour period, although the Commission can in certain circumstances that are set out in the section, issue a certificate earlier than that.

PN18

Now, the grounds in the notification give you some background. Now, Commissioner, you're already well familiar with this background given your involvement in this dispute, and in particular your involvement in dealing with the part heard section 127 application by Siemens. I wish to draw your attention in particular to paragraphs 8 to 10 of the notification, that is that Cork was due to commence it's contracted work on or about 1 May, and it's alleged that the union has directed Cork employees not to commence work at the project, and it goes on to refer to the position of the CEPU, that Cork shouldn't commence work because of the operation of the unregistered agreement, that unregistered agreement being the deed of course.

PN19

It goes on to explain that the CEPUs position, that until Cork signs a further site agreement that its employees shouldn't perform work or attend to pre-employment requirements such as induction. Now, the CEPU is seeking various claims over and above the conditions that were negotiated in the site agreement last year. Now, it's alleged in this notice that as a result of the above mentioned conduct Cork has not commenced work at the project to date, and that that's prevented certain works, certain critical path work being carried out.

PN20

Now, the notification goes on to characterise the conduct, and I draw your attention in particular to paragraphs 11 through to 14, and I think I can state Siemens position fairly simply. That the conduct in contemplation or furtherance of claims that are subject of the industrial dispute is as follows. That the CEPU has a demand that Cork sign a site agreement that is on terms and conditions acceptable to the CEPU, and that it do so before it has any of its employees commence work at the gas turbine project. That is a demand that Cork is capable of rejecting or acceding to as the employer. So there is an industrial dispute and that is the claim that we say the conduct relates to.

PN21

Also arguably it's an industrial dispute with Siemens because Siemens as the head contractor has significant power under its contract with Cork to affect industrial outcomes, and think it can be expected that if there's any settlement in the future to the extent that that involves more money it may require Siemens to either accept or reject that proposed solution. So the Shell superannuation case would be relevant there. So the Commission can be satisfied that there's an industrial dispute because of this CEPU demand, or a site agreement on better terms and conditions, and that demand hasn't been acceded to either by Cork or by Siemens.

PN22

Now, it's the CEPUs position underpinning this demand that there is no site agreement in place, and as the Commission as constituted already knows there is disagreement at least between Siemens and the CEPU on that issue. Siemens regards the site agreement that it negotiated back last year as the agreement that the CEPU accepted, and that it has accepted that through its participation in negotiations through the big building industry group and also through its knowledge and acceptance of electrical work being carried out by Leonards Electrics for significant amounts of time already on the project.

PN23

Now, the CEPU we say has made it plain to Cork, Siemens and this Commission that its demand is no work be carried out by Cork at the project unless and until Cork signs a site agreement on terms acceptable to the CEPU, and that the basis for that is clause 3.2 of a deed that the CEPU has entered into with Cork. Now, that's an important point we say because the Commission is already aware that the CEPUs position, stated position is that clause 3.2 means that Cork is required to reach a site agreement with it before any works commence. We say it's that reasoning that the CEPU has that underpins its motivation for making this demand for a new site agreement, and we say that it has engaged in conduct, being direct representations to Cork that make it clear that that's its position, and that work should not proceed on the site until that demand is met and until the site agreement is reached.

PN24

Now, in terms of the role of the Commission I want to address you on what exactly the Commission is supposed to do when presented with a notice that describes certain conduct. There are several Full Bench decisions on this issue, Commissioner and I'm sure that you're familiar with them. They start with a decision called Wettinger Homes, and I won't refer you to that one specifically because there's a subsequent decision of the Full Bench of the Commission in re AFMEPKIU and Others, that's the Mobil Altona decision, another Full Bench, which quotes extensively from Wettinger Homes and encapsulates the principles that I want to draw the Commission's attention to.

PN25

I've given you the industrial report here, Commissioner. This was a notification that alleged certain conduct by the unions and, importantly, it also identified individually particular officials and members of the union. Particular challenge was made by the counsel for the unions that there wasn't enough evidence put before the Commission that could justify the Commission being satisfied of the existence of conduct, particularly in relation to these particular employees. The point was also raised in relation to the union, but the evidence, I think at first instance it was acknowledged by the Commission as being sparse in relation to the 15 employees who were individually identified.

PN26

Now, at the bottom of page 32 of that decision following extensive quotes of the Wettinger Homes decision which is set out in pages earlier to that, Commissioner, the Full Bench says this:

PN27

For much the same reasons as were given in the decision of the Full Bench in Wettinger Homes we do not consider that it's necessary for us to decide -

PN28

I emphasise these words:

PN29

- or even to form a view about the question of whether the conduct described above might be sufficient to found an action in tort ...(reads)... to be not properly the subject of a certificate.

PN30

Again I emphasise these words, Commissioner:

PN31

But if there is a manifest intention to bring an action in tort in relation to conduct related to an industrial dispute ...(reads)... a declared intention to bring an action in tort.

PN32

Now, Commissioner, in a nutshell the threshold is very low in terms of what conduct might be described and set out in a notice. We say that we have sufficiently set out in our grounds in support of the notice the type of conduct that the notifier complains of, that is, clearly conduct that is related to an industrial dispute. It is clearly conduct of a character that the Commission would consider appropriate in the ordinary course to conciliate in an effort to try and stop it, and it is not conduct that the Commission could consider to be some sort of contrivance or of something that lacks a genuine expression of intent to commence an action in tort.

PN33

Factual questions as to whether the conduct described in the notice would ultimately persuade a court to grant any remedy, either interlocutory or final, are questions for the court, and these several decisions of the Full Bench of the Commission, including the one that I've drawn your attention to, make that abundantly clear. In terms of the evidence, Commissioner, I'd seek leave of the Commission to rely on the evidence that is in transcript in this section 127 proceedings. Oral evidence was called by both the applicant and the union respondent to the section 127 application.

PN34

The reason why I ask for leave to rely on that evidence is because it's evidence that arises from exactly the same factual background that's the subject of this 166A notification. It relates to the same dispute, it relates to the same demand alleged by the notifier that the CEPU is making.

PN35

THE COMMISSIONER: So this is the evidence the - can you be more specific about that?

PN36

MR DALTON: Yes, Commissioner. It's the evidence in the section 127 proceedings, in particular - we only have a copy of - - -

PN37

THE COMMISSIONER: There was a couple of those floating around. So it's 2005/2656, is that right?

PN38

MR DALTON: That's correct, Commissioner.

PN39

THE COMMISSIONER: The paragraph numbers of the transcript?

PN40

MR DALTON: Commissioner, the proceedings were conducted on Thursday,
28 April 2005, and more recently on 23 May 2005. In particular we rely on the evidence that was put forward on 23 May, which gives particular focus to what is happening in relation to Cork, and whether it's in a position to come onto the site and the reasons why - - -

PN41

THE COMMISSIONER: Well, this is the evidence of Mr Messenger that commences at 295, is that right?

PN42

MR DALTON: That's right, Commissioner, and also importantly the evidence of Mr Coffey.

PN43

THE COMMISSIONER: Which commences?

PN44

MR DALTON: It commences at paragraph number 557. Mr Messenger's starts at 294. I've got a copy of the 23 May transcript, I've provided that to my learned friend. If the Commission has got it, that's the evidence in particular - - -

PN45

THE COMMISSIONER: Well, you're seeking leave in respect to that?

PN46

MR DALTON: Yes.

PN47

THE COMMISSIONER: Leave is granted.

PN48

MR DALTON: Commissioner, there's one particular extract that I wish to draw your attention to. I'll just simply say that Mr Messenger gives evidence about what work needs to be done, and a lot of electrical work needs to be done, and that there's been the plan for Cork to come on since early May and there's been some delays to that which they've reluctantly agreed to, to see if Cork can nut out the issues between it and the CEPU. But if I could draw your attention to some evidence given by Mr Coffey, it starts at paragraph number 736.

PN49

This evidence that I'm going to draw your attention to is the type of conduct that we're focusing on here, that is, it's put to Mr Coffey:

PN50

Your position is this, is it not, you believe that you can rely on this clause that you want to refer to as a basis for saying no work should be carried out by Cork ...(reads)... I didn't say that, you said that, I didn't say that.

PN51

He doesn't go on to explain, he just says no, I didn't say that. If I can read on?

PN52

Yes. And I'm asking you to answer that question, that's the position, is it not ...(reads)... of course.

PN53

Now, it's that position that Mr Coffey tries to walk on that tightrope between this position that they seem to regard as legitimate, saying clause 3.2 must be complied with, and what they're doing to give effect to that demand, Commissioner. Mr Coffey's evidence was, if we can put it in its most favourable light, very evasive on that issue, and in my submission it's that very type of conduct that we complain of here, and the CEPU banning the performance of work by Cork on this project, and that it's made direct representations to put that into effect. Cork, an electrical contractor who has a significance presence in Melbourne on a number of other jobs.

PN54

I rely on that evidence. I also wish to call some evidence of Mr Messenger, Commissioner, to, as I say, refresh the evidence that was before the Commission in relation to the section 127 proceedings on 23 May. So I call Mr Messenger.

<GEOFFREY ROBERT MESSENGER, SWORN [11.27AM]

PN55

MR DALTON: Commissioner, before I ask any questions perhaps to respect formalities I'd tender the transcript of the section 127 proceedings. Do you have a copy of the 23 May transcript?

PN56

THE COMMISSIONER: Yes.

PN57

MR DALTON: Yes. You want the 28 April transcript?

PN58

THE COMMISSIONER: Well, whichever you want to tender because it's just that it belongs on the other file, and if you want it to go on this file then I'll move it.

PN59

MR DALTON: We don't have a fresh spare copy of the 23 May, Commissioner. I've highlighted the particular part of the transcript, but we can provide a fresh copy in due course.

PN60

THE COMMISSIONER: Do you have a problem about that?

PN61

MR BORENSTEIN: About providing a fresh copy?

PN62

THE COMMISSIONER: No, about providing the marked copy.

PN63

MR BORENSTEIN: No.

PN64

THE COMMISSIONER: I mean, I can put the marked copy in the other file and take the clean copy from that one, it's just a question - - -

PN65

MR DALTON: We'll replace it, Commissioner, with a fresh copy.

EXHIBIT #D1 TRANSCRIPT DATED 23/05/2005

PN66

MR BORENSTEIN: Can I reserve my position in relation to the earlier transcript, Commissioner, because it's hard to see how that's relevant to proceedings concerning Cork?

PN67

THE COMMISSIONER: Yes. So it's the 28 April that you're position, or is it both?

PN68

MR BORENSTEIN: Yes, 28 April.

**** GEOFFREY ROBERT MESSENGER XN
PN69

MR DALTON: Well, Commissioner, we say that it is relevant and it does refer to Cork and when they're due to start, and it also sets out some useful background.

PN70

THE COMMISSIONER: Well, I'll mark it, but it's subject to the reservation that we can an argument about it if need be.

<EXAMINATION-IN-CHIEF BY MR DALTON [11.29AM]

PN71

MR DALTON: Mr Messenger, you're engaged by the notifier, Siemens, as the industrial relations consultant at the project?---That's correct.

PN72

Yes, that's the gas turbine project at North Laverton?---That's correct.

PN73

You've given evidence in relation to this dispute in section 127 proceedings?
---That's correct.

PN74

Now, could you tell the Commission what happened after the Commission hearing on 23 May 2005, which concluded at about 10 to 6 on the transcript record?---After we left the Commission on the Monday, the 23rd, I called Reg Cork, the principal of Cork Instrument and Electrical Engineering, and informed him, or actually reiterated that I needed 10 people, 10 of his employees to start work on the Tuesday, on the following day, and they were to be on site at 7 o'clock. I said to him that one of the - we had two reasons. The main reason was that w had wanted them to commence work earlier in the month, and he was quite aware of that.

PN75

When you say we, who do you mean specifically?---Sorry, Siemens wanted him to start work earlier in the month, his organisation. Also that it was important that we test the ban that was in place with Cork's electrical employees commencing work on site.

PN76

What did you actually say to him?---I said to him that we needed 10 employees to start work and that we wanted to test if there were any bans in place on the Cork electrical employees commencing work on the Tuesday, and his employees were to be there on site at 7 am.

PN77

What did Mr Cork say to that?---Mr Cork understood what I was saying, that we had - sorry.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN78

You need to focus on what he said to you rather than whether you thought he understood what you'd said?---Mr Cork said that he would have the employees on site tomorrow, on the Tuesday morning at 7 am. From the discussions with Mr Cork, Mr Cork said to me that he could understand the need for having those people on site on the Tuesday morning and for testing the position of the ETU.

PN79

Right. Anything else discussed in that conversation?---No, not at that time. I expected - - -

PN80

All right. So was that on the telephone, was it?---That was a telephone call. I called Mr Cork, and it would have been somewhere between 7 and 7.30 on the Monday night.

PN81

Okay. Did you hear from him at any time after that, that evening?---No.

PN82

All right. What happened the next day?---The next morning I was on site at 7 am because I expected Mr Cork's employees to be there. I did several things on site and then started looking for Mr Cork's employees. I couldn't find them. I went over to the stewards who carry out the morning inductions and asked them if there were any employees available from Cork or present on Cork, and I was advised no, none had turned up on site or they hadn't seen any on site. I rang Mr Cork after that discussion I had with the shop stewards who were doing the induction.

PN83

Do you remember what time that was?---That was approximately 7.30 am on Tuesday morning, and Mr Cork informed me that he had a telephone conversation with Mr Mighell from the ETU after the conversation he had with me on the Monday night, and Mr Mighell had advised him that he should not have his people attend the site on the Tuesday morning. I inquired with Mr Cork as to why he didn't ring me and inform me of that, and he gave - he said he had lost my telephone number.

PN84

All right. Anything else discussed in that conversation?---Well, I said to Mr Cork that the position we were at before, the conversation we had had on the Monday night, I had explained to him of the need we had to test the bans. Mr Cork said he - that after his conversation with Mr Mighell he wasn't going to send people on site.

PN85

Okay. All right. Well, after Tuesday morning what did you do?---Well, Tuesday morning we were back in the Commission for the section 127.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN86

Right. Who was in the Commission for the - was it just Siemens?---Siemens, no. I'm sure Mr Cork and Mr Kennedy were there. Mr Kennedy came back on the Tuesday morning.

PN87

The CEPU were there?---The CEPU were here as well.

PN88

Was that conciliation, was it?---Well, we were still pursuing the section 127, and from there I think the actual proceedings were adjourned then till the Thursday, because it was our understanding that Cork and the CEPU or the ETU division were having a meeting on Wednesday afternoon to resolve the issues.

PN89

How did you have that understanding?---Well, that had been told to me by Mr Cork and it had been also said in the Commission, but I think by the CEPU.

PN90

Anything else happen on Tuesday?---No, not that I can recall.

PN91

All right. Wednesday, did Cork work Wednesday?---No, Cork didn't attend site on Wednesday, no, that's correct. Cork went to the meeting on the Wednesday at 2 pm with the ETU. After that meeting Mr Cork gave me a telephone call and said he - - -

PN92

Do you remember when that meeting was scheduled?---The meeting was for 2 pm on Wednesday afternoon, and Mr Cork called me, I think it was somewhere around 3, 3.15, and said that the ETU had put forward to the various changes that they wanted made in the agreement and that he would like to meet with me. The fact that he was in the city, we had then arranged to meet at Freehills offices, so I drove into town. At the meeting that I had with Mr Cork and Mr Kennedy and
Mr Kirk Anderson, who is their proposed site manager for the Laverton power station electrical works, Mr Cork put forward that the ETU wanted various changes to the site agreement and the included, among other things, the wages schedule that was established on site.

PN93

When you say changes to the site agreement, what do you mean exactly?---Well, there were some concerns about the site agreement and their current agreement.

PN94

When you say some concerns, expressed by whom?---Well, Mr Cork told me that the ETU had put forward those concerns.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN95

Right, okay?---And there was concerns about superior conditions applying as per the current site agreement or their EBA, and we didn't see that as an issue because our site agreement said that superior conditions would apply. There was also, as I said, concerns about some allowances, which we had difficulty trying to actually define what the terms were with the allowances, and then we had discussions about an ETU requirement that the wage rates be adjusted, and that was adjusted up. Now, from the information that Cork had given us at that time we had calculated that the wage rates adjustments were somewhere between sort of $2.75, $3 an hour.

PN96

When you say the wage rate adjustments, what are you referring to specifically there?---On the site agreement there is a wages schedule, right, on the current site agreement, and from my discussions with Mr Cork he indicated that the ETU said to him we wanted - sorry, that the ETU wanted those classifications or the wage rates changed up or increased.

PN97

All right. What else was discussed?---I said to Mr Cork that I needed them on site on the following morning, right, we needed work to commence. Mr Cork said he wasn't prepared to do that because he had concerns that the ETU had put across to him about clause 3.2 of the deed.

PN98

Yes, all right. Anything else on Wednesday?---No, I don't - - -

PN99

Okay. Well, did Cork come on and work on Thursday morning?---On Thursday morning, no. Mr Cork, sorry - - -

PN100

How did you leave it on the Wednesday before? I think you said Mr Cork had concerns?---Well, Mr Cork said that they wouldn't be attending site on the Thursday, sorry.

PN101

Okay, so they didn't turn up. And Commission proceedings on the morning of Thursday, correct?---That's correct, we were back in the Commission on the morning of the Thursday and - - -

PN102

Without detailing, you know, private positions that might have been put in that particular hearing could you just describe generally what happened in that conciliation or that Commission proceeding, and the outcome?---We tried to further define exactly what the ETU were after.

**** GEOFFREY ROBERT MESSENGER XN MR DALTON
PN103

When you say we, is that just Siemens?---Siemens and Cork.

PN104

Cork was there as well, were they?---Yes. And tried to further define exactly what was required to bring this industrial dispute to some sort of resolution.

PN105

Yes, all right. And did you reach agreement?---No.

PN106

What about this morning, has Cork presented this morning?---No. This morning I spoke to Mr Cork, and there's no Cork employees on site this morning.

PN107

All right. And did you ask why?---I did. Mr Cork implied that there were still problems with the - - -

PN108

MR BORENSTEIN: Well, I object to that.

PN109

MR DALTON: When you say implied?---Sorry, Mr Cork - - -

PN110

What he actually said?---Mr Cork said there were still problems with the ETU and the clause 3.2.

PN111

Now, it might be put to you in cross-examination that it's Cork making its own mind up about 3.2, and its position is simply stated to Siemens that it's not prepared to start on the site until it's got a site agreement because that's the way it reads, clause 3.2. What do you say about that?---Well, Mr Cork, when I spoke to him last Monday, was quite happy to come to site, and on the Tuesday morning at 7 o'clock to present his employees on site to start work, and that was never seen to be an issue. Mr Cork has also explained to me that he has several other jobs in Victoria and he has some concerns about those as well.

PN112

No more questions, Commissioner.

<CROSS-EXAMINATION BY MR BORENSTEIN [11.41AM]

PN113

MR BORENSTEIN: Mr Messenger, do you remember when you gave evidence on Monday in the 127 proceedings I asked you some questions about the contractual relationship between Siemens and Cork in relation to industrial agreements?---You did ask me some questions, yes.

PN114

I asked you to arrange for the production of the relevant contract?---Yes.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN115

You recall that. Can I ask you to have a look at that document please?---Any particular part?

PN116

Just have a look at it and tell me if that looks to you like the extract - I'm sorry, perhaps I'll do it another way. I didn't want to tender the whole contract, Commissioner. Have a look at this please. Are they in fact the contracts in question?---Yes, they appear to be, yes.

PN117

Commissioner, I don't propose to tender the contracts because I'm told there are various commercial-in-confidence issues about them, but I have photocopied and I have given to you and my learned friend a photocopy of pages 10 to 12 of the contract which sets out matters dealing with industrial relations, and would seek to tender those rather than the whole contract. They're the parts of interest here.

PN118

MR DALTON: Yes, Commissioner, my instructions are that this is confidential, what's contained in this particular document. So provided it's received by the Commission on a confidential basis then there's no objection to its tender.

PN119

MR BORENSTEIN: I don't understand why it's confidential, Commissioner.

PN120

MR DALTON: Well, I'm happy to explain, Commissioner. The reason why we say it's confidential is because it sets out the particular basis for handling industrial relations as between Siemens and its contractor, and it is a set of provisions that Siemens does not want generally known amongst the contracting community as to how it chooses to regulate its relationship with its subcontractors and the handling of industrial relations. That's why we ask for it to be treated as a confidential document. It is a private commercial contract after all. If the Commission pleases.

PN121

MR BORENSTEIN: Well, your Honour, that submission is completely without any merit at all. On that basis no commercial document would ever be able to be tendered in any case at all in any tribunal at all. The idea of commercial-in-confidence deals with sensitive material of a commercially sensitive nature such as prices, particular formulas, trade secrets, things of that sort. It doesn't cover general contractual provisions in a contract which, at the end of the day after all, is a contract which is sought to be relied upon both on, whatever day it was, 23 May and today in terms of the relationship between Siemens and these people, and Cork.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN122

When you look at this document there's anything that you could classify, or that the ordinary person would classify it as being, if I can use a colloquialism, top secret. There's absolutely no reason why this isn't an ordinary document that can be tendered in the ordinary way. I've deliberately extracted from the other documents because there may be some particular material in there that is of a commercially sensitive nature such as prices and things of that sort, and I'm not interested in those. But this is just routine, Commissioner.

PN123

THE COMMISSIONER: I'm going to, at least in the interim period, maintain the confidentiality. The confidentiality will be put aside unless you bring some evidence about commercial matters. I mean, you've asserted from the bar table, and that's been challenged.

PN124

MR DALTON: I've done that on instructions, but if the Commission wants
that - - -

PN125

THE COMMISSIONER: Yes, I know. No, you've asserted from the bar table, it's been challenged, so now we'll hear the evidence.

PN126

MR DALTON: Well, I think that's by, yes, by reference to the character of the document. Ultimately it depends on your view as to the character of the document on its face. Now, I mean, I can lead evidence of the attitude of the company
to - - -

PN127

THE COMMISSIONER: Well, if you want me to make a judgment on it, I'm not prepared to make a judgment on its face at this stage because I haven't had an opportunity to properly read it.

PN128

MR DALTON: Yes, Commissioner.

PN129

THE COMMISSIONER: On a quick examination it seems unexceptional.

PN130

MR DALTON: If the Commission pleases.

PN131

THE COMMISSIONER: But anyhow, it's in on a confidential basis at the moment. If you're not proposing to bring any further evidence about it and simply rely on my views about it, I'll give you my views after I've had an opportunity to read it more closely.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN132

MR DALTON: If the Commission pleases.

PN133

MR BORENSTEIN: We're content with that too, Commissioner.

PN134

THE COMMISSIONER: At the moment I will mark it as exhibit B1, and at the moment it is confidential to the parties.

EXHIBIT #B1 CONFIDENTIAL EXTRACT OF CONTRACT

PN135

MR BORENSTEIN: Can you hand those booklets back please. Now, Mr Messenger, you gave some evidence a moment ago about a conversation that you say you had with Mr Reg Cork on Monday evening at - I'm sorry, on Tuesday morning at about 7.30 am, do you recall that?---Yes.

PN136

You went around the site to see if there were any Cork employees, you found none, so you've made contact with Mr Cork by telephone?---Yes.

PN137

Now, I want you to think very carefully, and remember that you're giving this evidence on oath. What do you say that Mr Cork said to you about the reason why his men were not on site?---Mr Cork had a telephone conversation with Mr Mighell on Monday night after he had spoken to me about mobilising people for Tuesday morning. Mr Cork told me that Mr Mighell told him not to mobilise people on the site.

PN138

That's all he said?---In essence, yes.

PN139

Well, I don't really want to know in essence, I wanted you to try and recall what exactly he did say?---To the best of my knowledge that's what he said.

PN140

That's all he said. You're confident, are you, that Mr Cork said to you that he had had a conversation with Mr Mighell?---That's correct.

PN141

Have you made mention of this conversation to anybody since Tuesday morning at 7.30 am?---Yes, I would have.

PN142

To who?---I would have spoken either the - - -

PN143

No. Well, just perhaps not dealing with would haves. Can you recall whether you did or didn't?---I did.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN144

Who did you mention it to?---I would have - Pat Quinlan, who is the HR manager for Siemens Power Generation, right, I would have - - -

PN145

When did you convey that to him?---Tuesday morning. Henry Skene from Freehills.

PN146

Yes, we know Mr Skene?---On Tuesday morning. And I can't recall talking to anybody else about it.

PN147

The position is, isn't it, that we were all in the Commission on Tuesday morning on the 127 application, correct?---That's correct.

PN148

Including Mr Cork?---That's correct.

PN149

Mr Skene was here?---That's correct.

PN150

You were aware from being in the Commission on the Monday, the day before, that the union's position put to the Commission was that it had not given any direction or instruction to Cork's to withhold their people from the site?---I'm sorry, can you repeat that?

PN151

Yes. You were aware from being in the Commission on Monday that the union's position was that they had never directed Cork to withhold people from the
site?---I can't recall that even being actually said, no.

PN152

You can't recall those exact words being said?---No.

PN153

Was it your understanding of the union's position on Monday in the Commission that they admitted that they had given some instruction or direction or advice to Cork that they should not go on the site?---My understanding of it was that the unions were saying, the ETU were saying that no, they hadn't given any such instruction.

PN154

Thank you?---And that was why we wanted to test the ban on the Tuesday morning.

PN155

Exactly so. Then on the Tuesday morning, lo and behold, Mr Cork says to you that Mr Mighell has said to him directly that he should keep his people off the site, words to that effect?---That's correct.

**** GEOFFREY ROBERT MESSENGER XXN MR BORENSTEIN
PN156

Yet on Tuesday morning when you come to the Commission nothing is said to the Commission to that effect, is it, on behalf of Siemens?---That's correct.

PN157

Nothing is said to the Commission at any stage since Tuesday morning to that effect, to your knowledge?---That's correct.

PN158

Can I put it to you that in fact nothing was said on the Tuesday morning when Mr Cork was in the Commission because Mr Cork would have denied it?---I don't think so. Why would he do that?

PN159

Well, I'm just trying to find a reason why, when you have such telling evidence that directly contradicts the position that the union put to the Commission the day before, nothing was said to the Commission or even to the ETU representatives. You've got no explanation for that?---No.

PN160

Can I suggest to you that perhaps you didn't have a conversation with Mr Cork at 7.30 on Tuesday morning to the effect that you now describe?---That suggestion would be incorrect.

PN161

I see. Of course Mr Cork is not here to be able to give any evidence about whether or not it's correct, is he?---That's correct.

PN162

Thank you.

PN163

MR DALTON: No re-examination, Commissioner.

PN164

THE COMMISSIONER: Yes, thanks, Mr Messenger, you're free to go. You can remain if you wish.

<THE WITNESS WITHDREW [11.53AM]

PN165

MR DALTON: That's the evidence of the notifier, Commissioner.

PN166

MR BORENSTEIN: We're not leading any evidence, Commissioner.

PN167

THE COMMISSIONER: Yes, very good.

PN168

MR DALTON: Commissioner, at this point, in my submission you can be satisfied that there's conduct that fits the description in section 166A(1). The act requires you to take immediate steps to try and stop that conduct, and the question then arises as to what if anything you can do to try and stop this conduct. The question is fairly acute at this point because you have personally be involved in a number of conciliation conferences and hearings in relation to the subject matter of this dispute, and in my respectful submission the Commission can be satisfied that there is little if anything that the Commission can usefully do through the exercise of its conciliation powers or even exercise of compulsory powers unless the union - just bear with me a moment.

PN169

Mr Skene tells me that unless the union can confirm that it's prepared to accept the position that was put to it yesterday in the Commission, then in my respectful submission there's little if anything that the Commission can do at this point through the exercise of the conciliation function that is the process in 166A, that can stop this conduct. And perhaps we can hear from the union on that point before I address you further in relation to the disposition of this notification.

PN170

THE COMMISSIONER: I'm just trying to understand the conduct that you're talking about. That conduct is that they want an agreement from Cork before Cork commences work on the site. Is that the - - -

PN171

MR DALTON: Yes, that's right. Also that they've taken - they've engaged in conduct to ensure that their demand is enforced, shall I say.

PN172

THE COMMISSIONER: Well, do they have to go that far?

PN173

MR DALTON: Well, maybe not, Commissioner. But we say that you can be satisfied based on the evidence that we've put before you, particularly in circumstances where Mr Mighell just has been a ghost throughout this dispute and has never come in to give evidence to deny the allegations that Siemens has consistently put.

PN174

THE COMMISSIONER: Yes, all right.

PN175

MR DALTON: Has consistently put, Commissioner, that he has tried to enforce this ban by making direct representations to Cork. That's the very sort of factual issue that will come in contest if this matter goes to court.

PN176

THE COMMISSIONER: That's right. That's why I'm wondering whether I have to go that far.

PN177

MR DALTON: Well, you don't need to make any findings on it, you just need to understand that that's - - -

PN178

THE COMMISSIONER: No. But there's got to be conduct that I've got to stop.

PN179

MR DALTON: Yes. That's the conduct we complain of. It's the demand for a new - - -

PN180

THE COMMISSIONER: Well, if there was no demand then there'd be no conduct backing it up, would there? I mean, there seems to be some issues.

PN181

MR DALTON: There would be no conduct that's in connection because it has to be linked to in furtherance or contemplation of claims that are the subject of the dispute, so that's the link.

PN182

THE COMMISSIONER: Yes. The making of the claims is enough.

PN183

MR DALTON: Yes, that's right.

PN184

THE COMMISSIONER: Whether or not there is other conduct, it may not be necessary for me to find.

PN185

MR DALTON: Well, we put the whole picture before you, Commissioner, so you can understand the task that's ahead of you in exercising conciliation.

PN186

THE COMMISSIONER: Well, I'm sure Mr Borenstein has got something to say about that.

PN187

MR DALTON: Yes, Commissioner.

PN188

MR BORENSTEIN: Commissioner, we do have something to say about conduct, but can I perhaps deal firstly with the question that was bowled up for us to answer, and that was in relation to the utility of conciliation. Our position following the meeting in the Commission yesterday, or Wednesday - I can't remember, the days fly - was that we in fact made a response to a position that was put to us here. I won't go into the detail of it, but we did make a response, and our response was met with an outright rejection and no counter proposal.

PN189

So that being the position we are driven to the same conclusion, though for different reasons, as Mr Dalton put to you, that it would seem that there is no capacity to conciliate. You will see from the document which you've marked as confidential exhibit B1, that in fact there is a prohibition on Cork negotiating any conditions that are in excess of the site agreement which Siemens has developed with the other unions. We'll just find the page and direct your attention to it. It's at page 12 at the top of the page, the first full paragraph:

PN190

The contractor shall not enter into and shall not ...(reads)... which may have a direct or indirect cost.

PN191

Etcetera, and that:

PN192

It requires the prior consultation and written approval of the customer. Approval may be withheld at the absolute discretion of the customer.

PN193

We assume Siemens is the customer. So it means that there's a limited scope to do anything. So for those reasons, Commissioner, we are driven to agree that conciliation is probably not going to produce any other outcome.

PN194

THE COMMISSIONER: Unless they change their position.

PN195

MR BORENSTEIN: Well, there's no indication that they are going to change their position, Commissioner. I mean, we put a proposal - - -

PN196

THE COMMISSIONER: I think we might have a try at conciliation to see whether they do, but I hear what you're saying. About the issue of conduct?

PN197

MR BORENSTEIN: Well, I'm not sure whether Mr Dalton has finished his submissions to you. I was going to wait my turn and hear what he had to say.

PN198

THE COMMISSIONER: All right. Sorry, I thought you had finished.

PN199

MR DALTON: Yes, Commissioner, I have finished addressing you in relation to conduct, and we're dealing with where to from here. And I think then you asked me a question about conduct, which I'm taking that I've answered.

PN200

THE COMMISSIONER: I thought the where to from here, you were saying conciliation is not appropriate.

PN201

MR DALTON: That's true.

PN202

THE COMMISSIONER: I guess if you were both agreed on that, subject to any views I had - - -

PN203

MR DALTON: I think we're agreed for different reasons, but we're agreed on that, yes.

PN204

THE COMMISSIONER: Yes, I understand that, and I'm not even getting that far ahead of you. It seems to me that that's a useful point at which to stop your submissions, because I think your submissions then go on, don't they, to say, well, in those circumstances there is whatever pain your client is suffering and therefore a certificate should be issued forthwith rather than waiting for 72 hours, is that right?

PN205

MR DALTON: That's right, Commissioner.

PN206

THE COMMISSIONER: Well, I think if I'm going to have a go at conciliation, it's not that I don't believe you, it's just that I think there may be some cross purposes going on.

PN207

MR DALTON: Where there's life there's hope.

PN208

THE COMMISSIONER: Yes. Well, always. Then, you know, I'll reserve your rights to conclude your submission about that if we have some discussion.

PN209

MR DALTON: Yes, Commissioner. At that point you're right, you anticipate correctly that we will ask you to issue a certificate today, and we'll need to lead evidence on that issue about the - if we're at that point - about the urgency. If the Commission pleases.

PN210

THE COMMISSIONER: There may be no objection to that. Mr Borenstein?

PN211

MR BORENSTEIN: I'm constantly being puzzled by the way this is happening. There was a witness in the witness box. It's usual when one is calling a witness to get all the evidence out in one hit. I don't know how many more episodes we're going to have of this. Perhaps Mr Dalton can enlighten us about that.

PN212

MR DALTON: Well, Mr Skene helpfully draws my attention to paragraph A in 166A(6), so it may not be necessary to deal with the question about substantial injustice, which is the second scenario.

PN213

THE COMMISSIONER: So you close your evidentiary case, do you? You've been invited to re-open it I think.

PN214

MR DALTON: Well, with these cases because there are different stages and until conciliation is finished it's difficult to say finally once and for all that you conclude your evidentiary case. Unless the Commission forms a different view on the conciliation as indicated by both parties, then I think I can expect addressing you in relation to 166A(6)(a), and I'll be - - -

PN215

THE COMMISSIONER: Yes. Well, if you're happy to rely on (6)(a) then there's no further evidence that you wish to bring.

PN216

MR DALTON: Yes, that's right, Commissioner. Yes, he's finished his submissions.

PN217

MR BORENSTEIN: You want to hear from me on conduct?

PN218

THE COMMISSIONER: Yes.

PN219

MR BORENSTEIN: Okay, that's fine.

PN220

THE COMMISSIONER: The position I'm at, at the moment, having heard from Mr Dalton, is that I'm satisfied that conduct to the extent that it's appropriate, is that there's been conduct by the organisation in contemplation of furtherance of claims, that is, they've made the claims. I don't know that I have to - now, Mr Dalton wants me to go one step further and say, well, they've also taken certain other conduct, and we've heard the evidence of Mr Messenger on that.

PN221

MR BORENSTEIN: Well, could I just address you on that point, Commissioner, before you come to a final - - -

PN222

THE COMMISSIONER: Yes. No, it was a long way short of a final conclusion.

PN223

MR BORENSTEIN: The wording of the section, if I can just immediately deal with that point. The wording of the section would suggest that what's required is conduct other than the actual making of the claim, because otherwise a large part of the opening passage of 166A(1) would be superfluous. It talks about conduct in contemplation of furtherance of claims. So the claims are there and it's conduct in furtherance or contemplation of them, and as a matter or ordinary English one would read that as meaning something other than the actual making of the claim.

PN224

THE COMMISSIONER: Yes, certainly. The continued discussions about them might be - and there's evidence that that's going on.

PN225

MR BORENSTEIN: Well, perhaps. But I thought you were putting to me a moment ago - - -

PN226

THE COMMISSIONER: Yes. No, I was putting to you, and I accept what you're saying.

PN227

MR BORENSTEIN: So what we are saying is that there has to be some conduct identified other than the actual making of the claim. It's there that we submit that this case is deficient. The conduct has to be conduct as the authorities that
Mr Dalton referred you to, has to be conduct that might - and I'm reading now from page 33 of the Full Bench decision in the AFMEPKIU case that was handed up, at the top of page 33, the conduct has to be conduct that might plausibly be the subject of a tort action. Further down in that paragraph the additional item that the Full Bench adds to the list is that the conduct needs to be of a character that might reasonably, and I emphasise reasonably, be the subject of declared intention to bring an action in tort.

PN228

Now, having conversations about the claim, having negotiations about the claim would not fit into conduct of that kind because it's not plausible that simply having conversations or discussions could be the subject of a tort action. So it has to be something more than that. Now, if the conversations are threats, well, then of course that's different. But simply having the conversation is not sufficient in our submission. So one has to look at what the evidence here is of the so called conduct.

PN229

What's been put here in an emotive way is that the union's desire to have its contract in partner, that is Cork, comply with the terms of an agreement which they both have entered into, is hardly the sort of conduct that on its face you would expect anybody could sue about. So that if, for example, Mr Dalton and I entered into an agreement in which he agreed to wash my car each Friday, and I said to him, when he gave some indication that he wasn't going to do it, well, look, you've agreed to do this under the contract, under our agreement and I really expect you to do it.

PN230

It's hard to see how behaviour of that kind could plausibly or reasonably be the subject of any tort action. This is not a case of the sort which the Full Bench was dealing with in the AFMEPKIU, which was a clear secondary boycott case. It's not a case of the kind that you see in some of the other decisions where there's a picket and things of that sort where the conduct on its face has a well known and easily recognisable character and consequence.

PN231

What we are talking about here, as you've heard in the evidence, is one party to a contract saying to the other party of the contract, I expect you to meet your obligations. The fact that those obligations exist and may cause discomfort to Siemens is not to the point. The concern that the union has is not with Siemens. The concern the union has is with the employer, Cork. It's interesting to note that Cork is not to be heard from in these proceedings or in the 127 proceedings. Cork is attempting to honour its obligations under its agreement with the union in the face of severe pressure from Siemens.

PN232

One can understand why, but the fact that Siemens has done a bad commercial deal is not to be visited on the union seeking to have compliance with a contract which it entered into with this company genuinely some significant time ago. So we say that the evidence is in fact completely lacking of any conduct that would fit the test in the authority that Mr Dalton took you to, that is, plausibly or reasonably be the subject of a tort action.

PN233

Now, you were given as an exhibit the transcript of 23 May, and it was said that the company Siemens relies on the evidence of Mr Messenger and Mr Coffey. Now, you may recall on that day - on the other hand you may not - but Mr Dalton at the end of the proceedings asked you to make an interim order, and you expressed some views about your appreciation of the evidence up until that stage. If I can direct your attention to the page which is numbered 47 of 51 at the bottom of the page, at paragraph 834 and following, you will see that - perhaps particularly at paragraph 853, you say at the end of that paragraph:

PN234

Where is the evidence that Cork told them to go to work?

PN235

Then at 857:

PN236

Where is the evidence that Cork is going to require them to work tomorrow?

PN237

Then at 861 you say:

PN238

There is no evidence, and in fact what evidence I have got tends to suggest the contrary, because there was the evidence of Mr Coffey ...(reads)... I am not wanting to get into an argument about who is who in the zoo.

PN239

Then at 867:

PN240

At the moment on the evidence before me I am not satisfied that I have that, that jurisdictional facts exist that would give rise to the capacity for me to make an interim order of the kind you are seeking.

PN241

So you are expressing clearly a preliminary view, an immediate reaction to the evidence, that the evidence didn't strike you as establishing that there was any industrial action occurring at that time. So what have you got since then that adds to that? And the only material you've got is the sort of dubious second-hand material, really third-hand hearsay of what Mr Mighell was supposed to have said to Mr Cork on the morning after the hearing on the Monday. Interestingly, and we would say questionably, evidence that was not brought to anybody's attention until it was said in the witness box today without any prior notice to anyone. We would say that you should treat that with considerable caution, particularly since Mr Messenger then went on to give evidence about subsequent - - -

PN242

THE COMMISSIONER: I support your position on that. My notes say that Cork said to Messenger, we've had a discussion with Mighell, he advised Cork, that is Mighell advised Cork that he shouldn't have his people on site the next day.

PN243

MR BORENSTEIN: Yes. Then he goes on in subsequent conversations to say that he had concerns because the union had pointed out clause 3.2. I haven't got that down verbatim but the transcript will show what that said.

PN244

THE COMMISSIONER: This was later in the week?

PN245

MR BORENSTEIN: Yes.

PN246

THE COMMISSIONER: It must have been Wednesday. He told Cork he needed him on the site the next day, the next morning.

PN247

MR BORENSTEIN: That's right.

PN248

THE COMMISSIONER: Well, precisely the next day am is what I've got written, and not prepared to do that because of concerns about clause 3.2.

PN249

MR BORENSTEIN: Yes. That's the sort of evidence we have. Now, that's entirely consistent with the position we're putting about conduct. There is nothing wrong with Mr Mighell, if he did, saying to Mr Cork, don't forget clause 3.2. There's nothing wrong with that, and there's nothing wrong with Mr Cork saying, well, you know, I've entered in this deal, I could be in the Supreme Court on an injunction application if I breach it, I'm worried about that.

PN250

THE COMMISSIONER: Does 3.2 go that far? I thought 3.2 only required discussions.

PN251

MR BORENSTEIN: No. 3.2 requires that before he goes on site you have to reach agreement. I don't have it immediately to hand. Can I just get the deed out, Commissioner.

PN252

THE COMMISSIONER: That's the danger of relying on memory, isn't it?

PN253

MR BORENSTEIN: Yes. It's in the deed that we tendered.

PN254

THE COMMISSIONER: I'm trying to find it.

PN255

MR BORENSTEIN: It's in the 127 notice, of course.

PN256

THE COMMISSIONER: Yes, I know. I'm looking but I'm not finding it. Yes, I have it.

PN257

MR BORENSTEIN: It wasn't finally tendered because Mr Dalton wanted to have a chance to consider it, and if necessarily I'll tender it now. But on page 14, clause 3.2 about seven lines from the bottom:

PN258

The site agreement must be agreed upon by the employer and ETU prior to the commencing of work in respect of the engineering and construction project.

PN259

So that's our position.

PN260

THE COMMISSIONER: I'm confusing that with the provisions that he agreed with existed beforehand.

PN261

MR BORENSTEIN: Yes. So, Commissioner, all that's happening here is that two parties to a contract are having discussions because one party to the contract is saying to the other one, don't forget you've got to do X, Y and Z to meet your obligations. Now, if that's going to be a tortious act then there's going to be a lot of tort actions in the Supreme Court because it happens every day in commerce.

PN262

THE COMMISSIONER: Only if people can afford it, Mr Borenstein.

PN263

MR BORENSTEIN: Well, I've probably got a vested interest.

PN264

THE COMMISSIONER: I think your future is in good hands at the moment.

PN265

MR BORENSTEIN: Not if Mr Howard has his way.

PN266

THE COMMISSIONER: There's going to be challenges to all sorts of legislation over the next few months. I don't think anyone sitting at the bar table is going to be short of a quid.

PN267

MR BORENSTEIN: I'd like to have that in writing, Commissioner.

PN268

THE COMMISSIONER: It's purely an expression of an opinion.

PN269

MR BORENSTEIN: But you understand our point and you understand how we say that the conduct falls short of the sort of conduct which is required. Can I just hand up to you a copy of a decision of Deputy President Hamilton, and it's a matter called Feltex, and I just want to draw your attention to a comment of caution which the Deputy President made. He followed the same outline of approach that was put to you by Mr Dalton, and you'll see that at paragraph 8, and he dealt with the initial application for the 166A certificate, and rejected it. If I could direct your attention to the fifth page at paragraph 14, and this is the Deputy President's leap of faith statement, as I think it might become to be known, where he says that:

PN270

It's not enough to make a leap of faith about conduct or to assume conduct, it's got to actually be established or identified.

PN271

You will see that passage there, and I don't need to deal with that any further on that. Finally can I just say this. That in relation to the various courses of action which have been indicated in paragraph 14 of the application, these are all courses of action in tort - I'm sorry, clause 14 of the application identifies the torts which it is said will be pursued under this certificate. All of these torts require that there be conduct that is unlawful. The conspiracy, the interference with contract relations, the wrongful interference with trade, the wrongful interference with trade and business, etcetera, all as a matter of law require that the conduct, that is, the interference or the conspiracy is unlawful.

PN272

Commissioner, some of them in their terms describe the need for unlawful conduct to be established, so you see conspiracy by unlawful means, you actually have to have an unlawful means. Interference with the contractual relations doesn't actually state in terms that you need to have unlawful conduct. But can I hand up to you an extract from a decision of Parker J in the Western Australian Supreme Court in Patrick Stevedores. This is reported in 82 IR 87. He, at pages 98 to 99, summarises or gives a short statement of the requirements for unlawful interference with trade or business and interference with contract relations, which are the other torts that are referred to.

PN273

You will see at the bottom of page 98 under the heading Unlawful interference with trade or business, he indicates that that has been recognised as a tort, and then about four lines from the bottom of the paragraph he says:

PN274

It's necessary for the plaintiff to establish interference or threatened interference with the plaintiff's ability to trade ...(reads)... directed against the plaintiff with the intention of causing injury.

PN275

Now, I emphasise that. Then if you turn the page, under the heading Interference with contract relations, the first paragraph under that, it says:

PN276

The plaintiffs also rely on the tort of interference with contractual relations. It's necessary for the plaintiffs to show that the defendants had knowledge of the contract ...(reads)... wrongful in itself to hinder the performance.

PN277

So both of the torts that are relied on, the interference tort and the wrongful interference with trade or business, both of the torts that are advanced in the application and are said to form the basis of the hearing, both require some wrongful, unlawful act. On our submissions that requires more than simply advancing conduct which is to require a party, a recalcitrant party to comply with its obligations under the contract. If it were otherwise would we be brought here if we said to Mr Cork, you are in breach of your agreement, we sent him a letter, let us say we sent him a letter of demand and we said to Mr Cork in threatening terms, you are in breach of the agreement, if you send anybody on site before you sign a site agreement we will take you to the Supreme Court and get an injunction.

PN278

Now, on their submissions that would be conduct in respect of which you would issue a 166A certificate. But it demonstrates the error in the argument that's being advanced, because nothing we've said is that threatening, and yet even if it had been like that, if instead of Mr Mighell supposedly ringing Mr Cork we had sent a letter saying we will take you to court, then there could be no 166A certificate because it's just inconceivable, not only implausible or unreasonable, inconceivable that anybody could say that was a tort. If that's not a tort then none of the conduct that we've engaged in, so called, can constitute a tort. It's a clear case where section 166A just does not apply. There are not many of them, but this just so happens to be one of them, and we would say there is no conduct and the application should be dismissed.

EXHIBIT #B2 DEED

PN279

MR BORENSTEIN: I'm corrected, that in fact 166, there should not be a certificate issued in respect of - - -

PN280

THE COMMISSIONER: What you're saying is I should follow the course of action you pointed to in paragraph 14 of the decision.

PN281

MR DALTON: Commissioner, Mr Borenstein's submissions, in my respectful submission, fall into exactly the same trap that counsel for the unions in the Mobil Altona case fell into, and it's necessary for me now to just set out by references to some more pages in that decision what exactly this decision stands for. You will see that Mr Borenstein's submission must fail because of that. What he wants you to do is evaluate the evidence to work out whether it's going to meet the elements of various actions in tort, possible actions in tort.

PN282

Commissioner, page 27, the first page of the decision, the last paragraph, it starts with "There's common background to both matters," and then it says that:

PN283

On 18 December Mobil, Toyo and the MTIA on behalf of its members gave notice under 166A of their attention -

PN284

I think that should read intention:

PN285

- to bring an action in tort.

PN286

Commissioner, can I emphasise this next sentence:

PN287

The notice specified that the intended action was against the parties referred to in the attached schedule -

PN288

So they've named individual people:

PN289

- in respect of conduct in contemplation of furtherance of claims made by those parties concerning the performance of work and related matters on the FCC construction project at the Mobil Altona refinery.

PN290

Now, the next page it deals with what happened at first instance, and Commissioner Tolley conducting the hearing and conciliating and finally issuing a certificate on 3 January 1997. Now, the union issued an appeal and also an application to revoke the certificate issued, and it's the last paragraph on page 28 that I wish to draw your attention to, the second half of that paragraph. It starts with the words "In particular Mr Bromberg relied upon," do you have that, Commissioner?

PN291

THE COMMISSIONER: Yes.

PN292

MR DALTON: So this is the argument, Commissioner, and it's the same argument that's been put before you today:

PN293

In particular Mr Bromberg relied upon the state of the evidence about the nature of any conduct that might conceivably be the subject of an action ...(reads)... picketing activity at the FCC site was being conducted.

PN294

Then he referred to a passage in transcript before Commissioner Tolley on 9 January 1997, where on behalf of Mobil and the applicant employer interest Mr G Watson, who was then appearing for those interests, stated, and then there's a reference to the transcript. Listen to this, Commissioner:

PN295

We do not say there has been unlawful activity, we do not say there has been intimidation, we are not trying to say that there has been violence ...(reads)... dissuade subcontractors employees from coming on site.

PN296

Now, Mr Bromberg's submission was that it was a jurisdictional prerequisite that the Commission be satisfied as the existence of conduct prima facie capable of founding an action in tort. So he seized upon the evidence in the submissions which go to the absence of any allegation of unlawful conduct, Commissioner. That's the case that was put before the Full Bench. At paragraph 31, halfway down the page, Commissioner.

PN297

THE COMMISSIONER: Sorry, at?

PN298

MR DALTON: Sorry, at page 31, halfway down the page there's a paragraph that starts with the words:

PN299

The relevant conduct was described in very general terms in the notice given under 166A and the resultant certificate. Mr Bromberg attacked the lack of particularity, he submitted that the lack of definition of the conduct of itself gave rise to an invalidity in the relevant certificate.

PN300

Now, the Full Bench goes on and rejects those arguments out of hand, and the key part of that reasoning I've already drawn your attention to.

PN301

THE COMMISSIONER: But before doing so:

PN302

In this instance it rapidly became manifest to Commissioner Tolley that there was conduct by the relevant unions and their members in furtherance of claims ...(reads)... given by the union officials themselves.

PN303

Now, as I understand Mr Borenstein's position, that's in direct contrast to what the situation is here.

PN304

MR DALTON: No, because you've got that. That exact description is what you've got. Notice how there's no reference to - there's evidence that ticks the boxes on various elements that are inherent in particular - - -

PN305

THE COMMISSIONER: I see. See, if I accept Mr Borenstein, if I accept his characterisation of the evidence that's before me, it is no more than a request that Cork comply with the terms of the already subsisting agreement.

PN306

MR DALTON: That's one of the points that he makes. But I also heard Mr Borenstein to make a strong submission to you towards the end of his submissions that there's no evidence identifying any unlawful conduct, and it's that submission that, in my submission - - -

PN307

THE COMMISSIONER: I understand that part.

PN308

MR DALTON: Swept away by Mobil Altona, it's dealt with by that Full Bench decision. Now, in relation to his submission about the deed and the effect that that might have in characterising the conduct, in my submission I say this. Clause 3.2, there will be a contest as to the construction of what that means, in particular the last sentence of that which says that it won't apply in certain circumstances.

PN309

THE COMMISSIONER: Well, yes, I'd agree with that, yes.

PN310

MR DALTON: It won't apply if the ETU and the employer or its client are party to an existing current agreement specific to the site.

PN311

THE COMMISSIONER: Where is the evidence of that? The evidence is actually contrary to that. Everyone else has signed it.

PN312

MR DALTON: Overstepping your role, in my respectful submission, again. These are questions that the court is going to have to decide. My learned friend can laugh at that, but you've got to identify the particular conduct. They're just saying, look, this is the reason we're doing it. Even if we accept - - -

PN313

THE COMMISSIONER: No. But see, I think you're taking my position much further than I am. I'm simply saying that the evidence is, and I want to underline the word evidence, is that some discussion took place between - well, can I just go back a step. The hearsay upon hearsay evidence is that some discussion took place, and it probably is just hearsay, that some discussion took place between Mighell and Cork.

PN314

MR DALTON: No. There's direct evidence from Mr Coffey that there was a site agreement and that they were involved in the negotiations on that. They say because they didn't sign it that they don't agree with it.

PN315

THE COMMISSIONER: Sorry, I wasn't talking about that. I'm talking about the evidence in terms of what they are saying about that, about clause 3.2. Sorry, I'm confusing you and I'm confusing myself now.

PN316

MR DALTON: Yes, about whether there's a site agreement.

PN317

THE COMMISSIONER: I'm going back one step. That the evidence of conduct is that Mighell had a discussion with Cork, that Cork reported to Messenger that the people shouldn't go on the site the next day.

PN318

MR DALTON: Yes, that's right.

PN319

THE COMMISSIONER: That's that evidence. They say it was reminding him of his obligations, at best it was reminding him of his obligations under the agreement, or people can be mistaken about what they believe people's obligations are under agreements.

PN320

MR DALTON: Yes.

PN321

THE COMMISSIONER: But if Cork was mistaken about his obligations and acted on the mistaken belief about his obligations, that's hardly - - -

PN322

MR DALTON: Well, no, there's no evidence on it. I mean, the union can't say that.

PN323

THE COMMISSIONER: Well, exactly, there's no evidence on it. I haven't got Mr Cork here, and you're in the best position to bring, to tell us what was said and what all these threats were. What I've got is - and I don't resile at all from the comments I made about industrial action the other night. The evidence isn't getting any stronger.

PN324

MR DALTON: Commissioner, I just want to address you in relation to the particular conduct. The evidence that you've got, albeit hearsay, is enough for us in my submission in a 166A application. Hearsay evidence also admissible in the Supreme Court.

PN325

THE COMMISSIONER: No, I'm sorry, I understand that it's - - -

PN326

MR DALTON: In an interlocutory application.

PN327

THE COMMISSIONER: I wasn't in any way - but the best of it is that Mighell had a conversation with Cork.

PN328

MR DALTON: I submit the best of it is, you have a telephone conversation on Monday night following the Commission hearing between Mr Messenger and Mr Cork, where they agree - that's the evidence - that Mr Cork will bring
10 employees to site the next morning. That's where it's left at. The evidence is also - again, it's not contested. Mr Mighell continues not to turn up here and give any evidence against these allegations. Well, we can shake our heads about that, but that's the position.

PN329

THE COMMISSIONER: Well, what you put on transcript stays on transcript, so I'm about to say I wasn't shaking my head in the context of, and which you would seek to put it. I was thinking and about to say that also applies to the absence of Cork. I accept that - - -

PN330

MR DALTON: I'm trying to address you on that because, in my respectful submission, there is evidence - - -

PN331

THE COMMISSIONER: Yes, I understand you're trying to address me, but you put on record then that I was shaking my head. I certainly wasn't intending to be negativing what you were putting, which is what those words would appear like on transcript. I just want to make it very clear that my head movement was not intended to be negativing what you were putting. Do you understand that?

PN332

MR DALTON: I've heard the Commission on that, yes.

PN333

THE COMMISSIONER: You don't have to believe me. You understand what I'm saying, yes.

PN334

MR DALTON: I want to address you on the evidence that we've put, and what I say is that the conversation was left at that. The next day, and Mr Messenger's direct evidence is he was actually on site and he saw that they weren't there. Now, Mr Borenstein has tried to challenge whether he in fact had a telephone conversation with Mr Cork following being down on site and seeing that they're not there. Well, in my respectful submission, in the absence of any direct evidence from Mr Mighell to deny that conversation, the inference is unavoidable that that conversation took place, that Mr Messenger wanted to know what was going on, so he rang Mr Cork. Now, Mr Cork gave an explanation. Now, it's hearsay, but that's the evidence that we rely upon.

PN335

THE COMMISSIONER: But the words don't take you as far as you want to go. The words that I've written are, Mighell advised Cork that he should not have his people on site the next day, full stop.

PN336

MR DALTON: Yes. Now, the characterisation of that - - -

PN337

THE COMMISSIONER: Now you characterise that one way, the other side characterise it the other.

PN338

MR DALTON: In my submission it's not your job to decide what it is. It would be an error if the Commission were to try to evaluate what's the effect of that evidence and other evidence of a similar nature which is before you. The conduct can be described in general terms. It doesn't even have to establish that it's unlawful. That's the Mobil Altona position, that's a Full Bench decision to which you're bound. Now, in relation to clause 3.2 of the deed, it is put by Mr Borenstein that that somehow gives justification for Mr Mighell and his union adopting the position that there shouldn't be work on the site until there's a new site agreement.

PN339

Now, I've already said that there's an argument that his interpretation of that clause is wrong. But let's accept for the moment that he's right on that. In my respectful submission that will not prevent an action in tort against the union, because it's not for the union or any other party to a contract to seek to enforce their interpretation of a contract by interfering with contracts with other people. That's the complaint here, is that what he's doing is for direct representations to Cork he is trying to interfere with a contract between Cork and Siemens in particular. That's also having an impact, it's interfering with a contract that Siemens has with its ultimate client. That's the sort of stuff that my client complains of. It's identified sufficiently for the purposes of a section 166A, and no spin on clause 3.2 is going to be an answer to that.

PN340

THE COMMISSIONER: I understand that. You say that the conduct boils down to what occurred between 7 o'clock on the Monday night - sorry, it mightn't be the Monday night - 23 May, it was the Monday night, what occurred between the 23rd at 7 o'clock and what occurred at 7 am the next morning.

PN341

MR DALTON: No. I referred to that evidence as probably the best example of the direct evidence in response to your question that there wasn't any evidence because Cork hadn't been called on this. Now, there's other evidence as well, Commissioner, and we rely on all of that.

PN342

THE COMMISSIONER: Well, the other evidence is Coffey, who specifically didn't - - -

PN343

MR DALTON: Yes. I read out extracts on this position of the union.

PN344

THE COMMISSIONER: He specifically didn't commit himself.

PN345

MR DALTON: Pardon me?

PN346

THE COMMISSIONER: He specifically didn't commit himself one way or the other, whatever it was.

PN347

MR DALTON: Yes, that's right, Commissioner.

PN348

THE COMMISSIONER: So the failure to commit, when a union official fails to commit themselves to a positive act you say that's evidence of a - - -

PN349

MR DALTON: When you read that all together, absolutely, Commissioner, that's the submission I make.

PN350

THE COMMISSIONER: Yes, I understand that submission. What is the other evidence of conduct?

PN351

MR DALTON: All the background, Commissioner, all of it. So since May all of the efforts that Cork has made to try to pin Mighell down to have discussions with him to find out what it was that he had a problem with. They don't get to meet with him until 12 May. He doesn't identify what it is specifically that he's got a problem with. We've got direct evidence from Mr Messenger, who says at paragraphs 504 to 505 - - -

PN352

THE COMMISSIONER: Well, I wanted you to take me to it before.

PN353

MR DALTON: Particularly 505:

PN354

Yes. Except that your experience since at least March would not ...(reads)... apart from his problems with Siemens as a group.

PN355

So that raises the question of conduct being conspiracy, which is one of the items that's listed in the notice. There is evidence of Mr Mighell, or a meeting not going ahead on the 19th, it's put off until the 25th. There's evidence from Mr Coffey that I drew your attention to where he admitted that that proposal that was put that night that could have led to a resumption of work, or commencement of work by Cork, was not backed by Mr Mighell, and the reason is, back to 3.2, as I've already addressed you on, Commissioner, we say 3.2 is not something that cloaks their conduct with legitimacy.

PN356

THE COMMISSIONER: No. That's for the court, if they get that far.

PN357

MR DALTON: So, Commissioner, all of that type of evidence we say is the conduct that we're complaining of, and it's more than sufficient for the Commission to be satisfied of for the purposes of section 166A, to further, to go as far as Mr Borenstein's suggesting that you do, and to try that somehow evaluate this evidence to see whether it could amount to an action in tort or whether it gives rise to unlawful conduct, is directly contrary to the Full Bench decision of Mobil Altona. 3.2, as I said, will never justify an action by a party, such as the CEPU, to interfere with other contracts in an effort to enforce it's interpretation of the deed.

PN358

Now, my learned friend refers to the decision of Parker J in Western Australia. Well, that's very helpful, and no doubt Siemens will bear that in mind if and when it takes this matter to court. This is a judge at interlocutory level deciding what he needs to be satisfied of.

PN359

THE COMMISSIONER: What's the if and when?

PN360

MR DALTON: If and when. Well, once the notifier, my client, has a certificate, the restriction on its common law right to take an action on tort is removed, so it may, if this matter is not resolved, it may take Supreme Court action. So I'm just simply illustrating the point. That decision of Parker J just simply illustrates that those are the sort of issues that the court has to deal with.

PN361

THE COMMISSIONER: So what's the urgency of me coming to a view about this, given that you aren't sure whether you are going to go to the court about it?

PN362

MR DALTON: Well, we don't need to address you on urgency. As I said earlier, we can say you can be satisfied that you're not likely to stop the conduct promptly, so we rely on subsection 6, paragraph 8.

PN363

THE COMMISSIONER: It may take me some time to work out whether there's the conduct.

PN364

MR DALTON: Well, Commissioner, I've put the submissions to you, it's quite clear.

PN365

THE COMMISSIONER: Yes. No, I just want to understand that if there is some urgency about it how we'd have to be able to come to a view about that.

PN366

MR DALTON: Well, I've got clear instructions on this in any event. If the Commission is in any doubt about the genuineness of the expression of an intent in the notice, and my instructions are that the intent - - -

PN367

THE COMMISSIONER: Well, only because of what you said, that's all.

PN368

MR DALTON: No, I can actually put it higher. Siemens intend to commence court proceedings as soon as they can if this matter is not resolved. If the Commission pleases.

PN369

MR BORENSTEIN: Commissioner, can I just explain something?

PN370

THE COMMISSIONER: Yes.

PN371

MR BORENSTEIN: Because my submissions seem to have been misunderstood by Mr Dalton, and I just want to make clear that when I was speaking to you about the characterisation of the conduct I was doing so directly addressing the passage at page 33 of the Full Bench decision that Mr Dalton took you to. Although he - - -

PN372

MR DALTON: Before we get to this, Commissioner, why is Mr Borenstein permitted to reply? He's had his opportunity to put his submissions and I've put my submissions responsive to those.

PN373

THE COMMISSIONER: I'm happy to get any assistance I can from counsel, and I'll certainly give you an opportunity to give me further assistance.

PN374

MR BORENSTEIN: Just two things very briefly. My friend says this decision puts paid to any evaluation of the conduct at all. All that the applicant has to do is come along, make an assertion, and that's sufficient. Now, I was addressing you in relation to the dictate of this Full Bench after having done all the things that Mr Dalton said, where it came to a conclusion that even at the end the Commission has to decide whether the conduct might plausibly - it uses the word plausibly - be the subject of a tort action, and then it goes on to say that it might reasonably be the subject of a declared intention to bring an action in tort.

PN375

Now, that's all I was addressing. I wasn't seeking to address anything else that the Full Bench said. Where I took you to the question of unlawfulness, it was only because in order for the Commission to make a decision about whether the conduct might plausibly be the subject of a tort action, and the applicant says these are the tort actions that we are going to bring, that's the reference point for the decision, for the judgment. I took you to Parker Js judgment to inform the Commission of what is involved in the various torts, what are the necessary elements in the torts. If you don't know what the elements in the torts are you can't make a judgment about whether the conduct is plausible or reasonable. So I simply wanted to make that explanation and say no more.

PN376

THE COMMISSIONER: Mr Dalton, have you got anything to add?

PN377

MR DALTON: Nothing in response to that.

PN378

THE COMMISSIONER: Okay. Well, look, what I'm going to do now is adjourn the proceedings into conference because, as I said before, where there's life there's hope, or I agreed that where there was life there was hope, and hope is rapidly receding I hate to say. But we'll go into conference, and the proceedings in a formal sense are adjourned to a time to be fixed.

<ADJOURNED ACCORDINGLY [12.47PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GEOFFREY ROBERT MESSENGER, SWORN PN54
EXHIBIT #D1 TRANSCRIPT DATED 23/05/2005 PN65
EXAMINATION-IN-CHIEF BY MR DALTON PN70
CROSS-EXAMINATION BY MR BORENSTEIN PN112
EXHIBIT #B1 CONFIDENTIAL EXTRACT OF CONTRACT PN134
THE WITNESS WITHDREW PN164
EXHIBIT #B2 DEED PN278