C2005/3674, Transcript of Proceedings [2005] AIRCTrans 1395 (27 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11893-1

COMMISSIONER LEWIN

C2005/3674

BASELL AUSTRALIA PTY LTD
AND
THE AUSTRALIAN WORKERS' UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3674)

MELBOURNE

2.34PM, WEDNESDAY, 15 JUNE 2005

Reserved for Decision

PN1

MR J SANDLER: I seek leave to appear on behalf of Basell.

PN2

MR S WOOD: I appear for the Australian Workers' Union and with me is MR R GARDNER.

PN3

THE COMMISSIONER: Thank you, Mr Wood. Do you have any objection to Mr Sandler's leave?

PN4

MR WOOD: No, I haven't, your Honour.

PN5

THE COMMISSIONER: Leave is granted, Mr Sandler.

PN6

MR SANDLER: As the Commission pleases. Commissioner, you - - -

PN7

THE COMMISSIONER: I have read the application and the outline of submissions and the witness statement.

PN8

MR SANDLER: Commissioner, we would wish to proceed if that is in order but we would call Mr Stannard to confirm his statement.

PN9

THE COMMISSIONER: Mr Stannard, would you stand in the witness box, please?

<DAVID STANNARD, SWORN [2.36PM]
<EXAMINATION-IN-CHIEF BY MR SANDLER

PN10

MR SANDLER: As the Commission pleases. Mr Stannard, you prepared a statement for today's proceedings?---I did.

PN11

Can I show you a copy of the statement?---I confirm that is my statement.

PN12

Is that statement true and correct?---It is.

PN13

Now, Mr Stannard, that statement refers to an attachment, a letter from the Australian Workers' Union. Do you have - - - ?---I have a master copy of that.

PN14

A master copy with you?---Yes.

PN15

If we could tender that statement plus the master copy.

EXHIBIT #A1 WITNESS STATEMENT OF MR STANNARD AND MASTER COPY.

PN16

MR SANDLER: I seek leave to tender that statement and the master copy.

PN17

THE COMMISSIONER: Yes. My associate will take it up there. The witness can keep it for the time being. I need the letter, I have got a copy of the statement. We will mark the original in due course.

EXHIBIT #A2 LETTER RECEIVED FROM THE UNION

PN18

MR SANDLER: There are just a few matters I wish to take you to in your statement, Mr Stannard. In paragraph 2 of your statement, you say that Basell manufactures polypropylene and advanced polythene products at its Geelong site. If you would just explain to the Commission, expand on that and just explain the operations and the extent of the operation and the nature of the plant?
---Commissioner, the plant we operate for Basell in Geelong is a petrochemical plant, our raw material or feedstock as we call it is principally LPG. We take one component of that which is propylene, that is as you would be aware, a hydrocarbon liquid which pressurised conditions but it also is vaporised and can be explosive if mishandled or in the presence of a source of ignition. We have a process there that manufactures about 60 to 70,000 tonnes a year of polypropylene which is a plastic resin that you may be familiar with in car pits and car bunkers and the likes.

**** DAVID STANNARD XN MR SANDLER
PN19

How large is the plant?---The plant manufactures 60,000 to 70,000 tonnes a year on average.

PN20

In paragraph 4 of your statement you say you employ 55 employees at the plant of which 33 are operators?---That is correct.

PN21

Could you just explain how those employees are rostered to work and how the shifts work briefly?---We have a five shift system. On each of those shifts there are five operators rostered to that. We require four operators to be present at any one time and there is one person who is spare. It is the role of the process operators to run the process plant, to safely control it and to ensure that raw materials are efficiently converted into the product. In addition to that there are a number of day operators on duties such as warehousing, a day liaison operator looks after safety permitry a trainer and also one technician involved in keeping up to date with our control systems and instrumentation.

PN22

If I could just take you to paragraph 14, you talk about the plant being a licensed major hazard facility?---Correct.

PN23

Could you just expand on that and perhaps explain to the Commission? I know what that means. In terms of the operators, is it possible to operate the plant without them?---It is one of the requirements for us as a licensed major hazard facility to ensure that one of the controls to operate in the plant safely is that we have operators who are trained and deemed and tested competent to carry out their roles. Therefore, without the process operators, this is not a possibility.

PN24

If I can take you to A2, the letter received from the union - I will give that back to you, you don't have a copy of this, do you?---Thank you.

PN25

What is your understanding of that letter?---I am unclear as to what the reasons for the writing of the letter were but it is very clear from paragraph 4 that the union wishes to have a meeting of some sort and will remove its members from the plant site in order to conduct that meeting.

**** DAVID STANNARD XN MR SANDLER
PN26

If I can take you to your statement in paragraphs 8 through to 13, you - can I have the letter back, please? You talk about a meeting with the AWU organiser and site delegates on 8 June. When that meeting concluded, what was your understanding as to where things stood?---At the conclusion of that meeting, the full time official ended the meeting by stating that they would take whatever action they feel is fit.

PN27

What did you understand that to mean?---I understood that, in conjunction with the letter, meant that they would proceed at some stage with a meeting, a mass meeting to which they would invite all of their members and withdraw them from workforce activities on the plant.

PN28

If I can take you to paragraph 16 of your statement, you talk about the effect if the operators were to stop work?---Correct.

PN29

You have estimated that it will take a certain period of time to shut the plant down and start it up again?---Correct.

PN30

Could you just expand on that a little bit. Is that the minimum period or maximum period?---Safety is an important aspect for our operation. In order to allow something of this nature to take place without an operating workforce, I believe that we need to empty the plant of all hydrocarbon liquid. We probably wouldn't remove all the gases, that would take a lot longer, but 12 hours would be a reasonable estimate to shut the plant down and to empty it out to storage and 12 hours would be a period sufficient to bring that liquid back into the process and to restart it. In between would be the period when the mass meeting would take place. So the time estimate there is 24 hours, that includes stopping, restarting, plus you have to add to that the period for the stoppage.

PN31

I have no further questions of the witness, your Honour.

PN32

THE COMMISSIONER: Thank you, Mr Sandler. Mr Wood?

<CROSS-EXAMINATION BY MR WOOD [2.43PM]

PN33

MR WOOD: Mr Stannard, have you replied to the AWU, or more particularly myself about the contents of that letter?---Could you repeat the question again, please?

**** DAVID STANNARD XXN MR WOOD
PN34

Beg your pardon?---Could you repeat the question, please?

PN35

Have you replied to the writer of the letter, myself, the content of that letter?---I have not replied to you. I have talked to Mr Gavin Pen, your full time official.

PN36

So do you see that there was a need to reply to the national Vice President of the union?---Based on the response from the full time official, it seemed clear to me that there was no need to respond at all.

PN37

So it's normal for yourself when people write you a letter that you decide whether to reply or not to reply, do you, or contact them?---It's normal to practice when the trade union writes me a letter for me to respond to the full time official with whom I have a working relationship.

PN38

We can assume the same from you whether the national secretary writes to you that you won't reply to him, you will talk to the - - - ?---I would always talk to my full time official first of all.

PN39

The letter that you received, it doesn't actually say that you are going to have industrial action now, does it?---It says that you are planning to have a mass meeting, that the AWU is planning to have a mass meeting and all members will be withdrawn from the plant.

PN40

Yes. But it also says in paragraph 4 that the exact timing of the meeting you have got to be advised of. Is that right?---Correct.

PN41

That's right. You haven't been advised of any exact timing yet, have you?
---No.

PN42

So it is safe to say that at the moment there is no industrial action?---That would be correct.

PN43

Because you haven't heard from the union there is no impending industrial action?---I would judge that to be the case at this moment in time.

PN44

In your statement you advised that the agreement expires on 30 June 2005?---The current EBA expires on 30 June 2005.

**** DAVID STANNARD XXN MR WOOD
PN45

After that date, the union is entitled to take protected action?---My understanding is the union is entitled to take protected action against issues relating to the negotiation of the new EBA.

PN46

Those issues are only confined to matters that pertain between the relationship between the employer and the employee?---That would be my understanding.

PN47

So the members can have a mass meeting about those matters?---We usually accord reasonable time for mass meetings to have taken place on the plant and I believe it is reasonable so that we have provided that time in the last month.

PN48

Are you aware that the Act requires that the union provides 72 hours notice?
---Of?

PN49

Of taking industrial action?---Your letter indicated that you would give seven days notice.

PN50

That's right. More than what is required. Have you had any discussion in regards to this letter to Shell Geelong Refinery Management Team, anyone in the management team?---Yes, I have.

PN51

You have? Who are those people that you have had discussions with?---I talked to the acting operations manager in order to ascertain whether he had received a similar letter.

PN52

His answer was?---No, he hadn't.

PN53

Have you spoken at all to Dennis Skinner about this letter?---One of my colleagues has tried to speak to Dennis Skinner and I believe the understanding from that conversation is that he has not received a copy either.

PN54

That's right. Did Mr Skinner talk to you about any of these matters?---No, he has not.

PN55

Have you got an employee by the name of Peter White?---Basell Australia has a project manager called Mr Peter White.

**** DAVID STANNARD XXN MR WOOD
PN56

Has he had discussions about the industrial relations on that site with anyone in the union?---I have advised Peter of the contents of that letter but I have not had substantial discussion about an operating plant industrial relations issue.

PN57

This letter advises the company, does it not, that the decision whether to shut down the plant or not is really up to you. It's not something that the union would make a decision on, is that correct?---No, it is not correct.

PN58

It's not?---Your letter makes it very clear that you will be taking industrial action and walking off the plant and leaving us with no other alternative but to take the required action to ensure the community is safe.

PN59

Paragraph 5, have you got the letter in front of you?---No, I don't.

PN60

THE COMMISSIONER: Are you referring to your letter?

PN61

MR WOOD: Yes.

PN62

THE COMMISSIONER: In the 5th paragraph.

PN63

MR WOOD: It's paragraph 5. I will read it for the purpose of the transcript and ask you a question:

PN64

The members and all your employees will carry out any lawful instructions up to the time specified when notified. At that time all AWU members will attend a mass meeting that will be called as per the notification.

PN65

Now, that is fairly clear that your employees will carry out any lawful instruction, is that right?---Correct.

PN66

So if you decide that you are not going to shut down the plant, you're not shutting it down, are you?---Correct.

PN67

So there is no industrial action, is there, if you make that decision?
---That would depend on the action of the Australian Workers' Union as to whether the competent employees remained - - -

PN68

No, no?---I have started so I will finish, thank you.

**** DAVID STANNARD XXN MR WOOD
PN69

MR SANDLER: Perhaps we can get an understanding of where this is going, whether or not it amounts to industrial action is perhaps a matter of argument, Commissioner, rather than evidence. It's quite clear from the letter, Commissioner, that - - -

PN70

THE COMMISSIONER: I don't think we need to take it much further. Just the procedural issue is whether or not the witness is being asked a question that the Commission is required to answer. That question is whether or not there is action happening, pending or probable.

PN71

MR WOOD: Commissioner, first of all there is evidence now that Mr Stannard did not reply to me on this issue.

PN72

THE COMMISSIONER: Yes. This is a procedural issue.

PN73

MR WOOD: Beg your pardon?

PN74

THE COMMISSIONER: We are only here - there is an objection raised.

PN75

MR WOOD: Yes.

PN76

THE COMMISSIONER: The essence of the objection is about the evidence and its relevance because whether or not in a particular set of circumstances something constitutes industrial action within the meaning of section 4 of the Act is a decision which the Commission is required to make for the purposes of its finding as to whether or not there is jurisdiction.

PN77

MR WOOD: That's right.

PN78

THE COMMISSIONER: Therefore, it is not appropriate for the witness to attempt such conclusions. What the witness can tell you about is the facts but he witness cannot become the Commission. If you say, isn't it true that this doesn't constitute industrial action you are effectively raising with the witness the question that the Commission has to determine.

PN79

MR WOOD: This letter was very carefully put together and - - -

**** DAVID STANNARD XXN MR WOOD
PN80

THE COMMISSIONER: I have read it carefully and it seems to me that it has been thoughtfully drafted, I can see that. But that is not the point, with all due respect, Mr Wood. What you are asking the witness was something to do with whether or not if the employees were to stop work that meant that there was or was not industrial action.

PN81

MR WOOD: I will - - -

PN82

THE COMMISSIONER: That is something for the Commission to decide.

PN83

MR WOOD: I will put the question another way.

PN84

THE COMMISSIONER: Yes.

PN85

MR WOOD: In the 5th paragraph it says that the members and all your employees will carry out any lawful instruction up to the specified time. Do you understand that?---Yes.

PN86

So you understand that you can decide whether they are going to run the plant full chat or you're going to shut it down. Do you understand that? That's your decision?---My decision would be to tell them to continue to run the plant.

PN87

So your decision would be to tell them to run it and therefore, given it's a lawful instruction, they would do that. Is that right?---Good.

PN88

Is that right, yes or no?---Sounds good. If I give them instructions to run the plant I would expect them to run the plant and that is positive.

PN89

If you give them instruction to do that and it's a lawful instruction, they'll do that?
---Good.

PN90

Fine. Up to the specified time when you are notified?---With respect, if I might reply to that, Commissioner.

PN91

THE COMMISSIONER: It wasn't actually a question but I suppose, yes, I will allow you to respond.

**** DAVID STANNARD XXN MR WOOD
PN92

THE WITNESS: Commissioner, the response is that I will instruct my employees to work as they are paid and contracted to do so. If action is taken against that, they will still be asked, told, instructed to run the plant.

PN93

MR WOOD: Do you believe that people are entitled to attend the mass meeting?---We provide opportunities for our employees to have meetings within our plant panel room.

PN94

If you don't approve it, you think that they're not entitled to have a meeting then. If you don't give your approval to say, yes, you can have a meeting, you think they're not allowed to hold one?---I don't understand your question, please rephrase.

PN95

Your evidence is that, yes, you provide means for them to have a meeting and they can have a meeting but if you don't provide means and they don't ask your permission, they just go out and do it, do you believe that they are allowed to do that?---They're not allowed to leave their normal place of work without seeking prior permission.

PN96

If they don't get that permission they can't go?---That is correct.

PN97

Even if they've got protected action?---Correct. They have to provide the required notice in order to take that action.

PN98

Yes. Notice is a different thing to getting permission. Yes, you have to give
72 hours notice but once they've given that notice - - -

PN99

MR SANDLER: Commissioner, again, at the risk of seeming to object all the time, we are not dealing with a period of protected action so where is this line of questioning going? There is no bargaining period in place. That is common between the party, there is a certified agreement which is on foot and has not reached its nominal expiry date so where does protected action line of questioning take us?

**** DAVID STANNARD XXN MR WOOD
PN100

MR WOOD: First of all, there is no industrial action. That's his thing. Second of all, I said that when the industrial action happens you will be notified. They haven't got any notification so there's nothing happened, there's nothing planned to happen. They say that their agreement expires on the 30th of this month which is their evidence and that is correct. So the relevance of that is, given that there is no industrial action, given that the letter says that you will be notified when industrial action is taken, it is very relevant as to whether this witness believes that given we give the appropriate notice and we take - we can turn around and have that - that's what I'm trying to establish.

PN101

THE COMMISSIONER: So your question that if the AWU complies with the requirements of the Act, initiates a bargaining period, authorises the conduct of industrial action - sorry, start again. Initiates the bargaining period, makes genuine attempts to reach agreement as to the subject matter of the bargaining period, authorises the conduct of industrial action and gives 72 hours notice of the commencement of the industrial action, would that industrial action be protected? Is that what you are asking?

PN102

MR WOOD: No. I want to know whether - you see, the witness is saying that unless they give permission that they can go, you can't do it. I'm trying to show that that is not the only reason that they can go. They mightn't like it, they mightn't like their plant getting shut down but there are laws in this country that allow that to happen.

PN103

THE COMMISSIONER: Allow industrial action to occur.

PN104

MR WOOD: Even without their permission.

PN105

THE COMMISSIONER: Isn't that a matter for submission essentially? Does it matter what Mr Stannard knows about that?

PN106

Are you an engineer, Mr Stannard?---Indeed.

**** DAVID STANNARD XXN MR WOOD
PN107

Yes. Mr Stannard is an engineer. He is in the business of running a polypropylene plant. He is not a labour law expert and what you have said to me is unexceptional that provided the requirements of the Workplace Relations Act are met it is possible for the operators employed by the company to take protected industrial action. It is not necessary to get him to agree with that for the purposes of these proceedings. I don't think Mr Sandler would quarrel with that.

PN108

MR WOOD: My frustration is this, Commissioner. I wrote a letter off, I don't hear back from him. The next thing I hear is we're in court before you with 127 seeking to sue the union if we proceed with a meeting. Now, he's the only one that's - - -

PN109

THE COMMISSIONER: Just a moment, please, Mr Wood. I know you are dissatisfied with the situation but I am not sure if there is any application for a 166A certificate, is there?

PN110

MR WOOD: There is a - - -

PN111

THE COMMISSIONER: There is no application before me under section 166A of the Act.

PN112

MR WOOD: No, no.

PN113

THE COMMISSIONER: We need to be - just be precise about what is happening. I wanted to be clear on that, I know nothing of that. Maybe you have been told something about it but I know nothing of it.

PN114

MR WOOD: Like they're doing- - -

PN115

THE COMMISSIONER: What you have before you is an application to prevent what the company says is threatened, pending or probable industrial action. It is not suggested, and Mr Stannard agrees that there is happening industrial action but they say that this exhibit A2 is evidence of pending and probable industrial action. That is clear, isn't it? What you are saying is that it may not happen.

PN116

MR WOOD: That's right.

**** DAVID STANNARD XXN MR WOOD
PN117

THE COMMISSIONER: Is that what I am hearing you say? Or if industrial action is to happen it may well happen on the basis provided for by the Act.

PN118

MR WOOD: That's right.

PN119

THE COMMISSIONER: All right. I understand that. But please don't let me distract me distract you from your cross examination of Mr Stannard unnecessarily. It is just that I think you don't need to prove those possibilities to me, the ones that you have alluded to Mr Stannard. It's just not necessary, it's not in contest.

PN120

MR WOOD: I understand and appreciate that, Commissioner. My difficulty is they haven't replied - - -

PN121

THE COMMISSIONER: What would you like to happen, Mr Wood?

PN122

MR WOOD: I would have thought, given that for instance, Shell Australia, they have contacted me three times about this.

PN123

THE COMMISSIONER: What would you like the company to do?

PN124

MR WOOD: I would have thought that Mr Stannard would contact the writer of the letter, not - - -

PN125

THE COMMISSIONER: That is what you would like him to do, is it?

PN126

MR WOOD: And say, what's the problem?

PN127

THE COMMISSIONER: Would you meet and confer with Mr Stannard on the subject of a potential industrial action?

PN128

MR WOOD: Yes.

PN129

THE COMMISSIONER: You would. All right. Is it inferred in what you are saying that you think it is premature for the Commission to determine this matter, is that right?

**** DAVID STANNARD XXN MR WOOD
PN130

MR WOOD: That's correct. I was caught a bit off guard, they put a witness straight in and I thought - you know, do I raise a threshold matter or not but it's clear from the evidence here and the letter that's written, there is no industrial action and there isn't any industrial action - - -

PN131

THE COMMISSIONER: You see, actually under the Act for the Commission's jurisdiction to arise it doesn't need to be established that industrial action is happening. That can be a basis upon which the Commission can make an order as sought by the company but the company can also properly found the jurisdiction to make an order on the Commission being satisfied that industrial action is pending or probable. That is what they are trying to prove, I think.

PN132

MR WOOD: Yes.

PN133

THE COMMISSIONER: Given that Mr Stannard has agreed that there is no industrial action happening.

PN134

MR WOOD: Yes, but within that consideration is the expiry of the agreement.

PN135

THE COMMISSIONER: I understand that, I understand that possibility.

PN136

MR WOOD: Yes. So - - -

PN137

THE COMMISSIONER: I shouldn't really be sitting here if I didn't.

PN138

MR WOOD: We have got no further questions to the witness, Commissioner.

PN139

THE COMMISSIONER: Thank you. Any re-examination?

PN140

MR SANDLER: None that is relevant, no.

PN141

THE COMMISSIONER: Very well. Thank you, Mr Sandler and than you for your evidence, Mr Stannard. You are released from you oath and you are free to come and go as you please.

<THE WITNESS WITHDREW [3.03PM]

PN142

THE COMMISSIONER: Mr Sandler, it seems that given that I gather there is probably an undertaking available that there won't be any industrial action until such time as Mr Wood has the opportunity to meet with you, or representatives of the company as they choose, that perhaps this matter could be adjourned for a day or two to allow that to happen. I think that is what Mr Wood is trying to say.

PN143

MR SANDLER: I don't know, Commissioner, because Mr Wood, I don't know if he is going to give evidence about the letter that he wrote because the letter- - -

PN144

THE COMMISSIONER: Do we really want to go there? If Mr Wood is volunteering to discuss this matter and gives an undertaking there won't be any industrial action while those discussions are taking place and it doesn't appear as if any industrial action is scheduled in the immediate future.

PN145

MR SANDLER: Commissioner, we just don't know is the answer.

PN146

THE COMMISSIONER: That is true. We would need to have those things confirmed.

PN147

MR SANDLER: We would say at the very least this letter should be withdrawn unreservedly and this matter should be postponed.

PN148

THE COMMISSIONER: Look, I am happy for you to finish you case if you wish.

PN149

MR SANDLER: As the Commission pleases. That is the evidence from the company.

PN150

THE COMMISSIONER: Do you wish to make any more submissions?

PN151

MR SANDLER: The submission we make is that this letter is clearly a threat. The Commission has the jurisdiction - - -

PN152

THE COMMISSIONER: It is threatened industrial action.

PN153

MR SANDLER: Threatened industrial action. Things have been put to the witness which I don't really want to labour but this letter is not contextual, it doesn't talk about enterprise agreement negotiations, it doesn't link into any of the things that have been put to the witness. It doesn't ask for a response. We would say that the union was notified of this application yesterday. It was up to
Mr Wood if he felt aggrieved to contact us and have a discussion. It was all possible. We would simply say if you write letters, if you write threats which as clearly we would say it is, don't be surprised if somebody takes your threat seriously. We take it seriously and this is a very - the operations that this kind of action puts at risk if this in fact happens is significant to the company and we don't take threats lightly. So if the AWU is perturbed - - -

PN154

THE COMMISSIONER: You are entitled to treat it seriously. You don't need to persuade me of that.

PN155

MR SANDLER: If they wish to put matters correct then they need to withdraw the letter and come up with the undertakings. Otherwise we would press for orders but if we were to be stood down for a day we wouldn't object. If the union wishes to have discussions with us as to how we can resolve it, we would be prepared to do so.

PN156

THE COMMISSIONER: Thank you, Mr Sandler. Mr Wood, what do you seek now?

PN157

MR WOOD: We want to say this first. There is no industrial action.

PN158

THE COMMISSIONER: That is conceded.

PN159

MR WOOD: As to the issues of probability, it is only probable once they get another letter. It's not even probable now.

PN160

THE COMMISSIONER: With all due respect, the action which is described in this letter falls within the definition of industrial action set out in the Workplace Relations Act. That is to say, a restriction on the performance of work which is covered by a certified agreement.

PN161

MR WOOD: Yes.

PN162

THE COMMISSIONER: Or a refusal to offer for work at a particular time depending on how the timing of the proposed mass meeting occurs. If you hold it at a commencement of shift, for instance and employees don't offer for work, say, if you have got a 7 am shift start, I don't know what the times are but let's just take it as an example, and employees don't attend for work that is non-performance at work.

PN163

MR WOOD: But that hasn't happened.

PN164

THE COMMISSIONER: No, but if I could just repeat, the definition of industrial action in the Workplace Relations Act is threatened, pending or probable as well as happening. So industrial action is not happening, that is conceded, that is the evidence of the applicant. I cannot argue that industrial action is happening because their evidence is to the effect that it is not. So their case must rest on the proposition that industrial action is threatened, pending or probable or all three, or two thereof.

PN165

MR WOOD: With respect, every union you can expect in the next 100 years will probably have some industrial action and that is probable. So I understand I wrote them a letter but I made it very clear that we would carry out lawful instructions. I said, you will be notified of the exact timing and you would be given seven days, so - - -

PN166

THE COMMISSIONER: What do you want to happen, Mr Wood? Do you want me to determine the application? Do you want to have the matter stood down for a day to talk to the company about this matter?

PN167

MR WOOD: I am always open to have discussion.

PN168

THE COMMISSIONER: If you want me to determine it, please tell me the basis upon which you wish me to determine it but if you want to discuss it with the company, because I thought that is what you were saying that these proceedings were premature, that the company didn't contact you, you were disappointed that you didn't receive a reply and that you wished to talk to them about it. Now, maybe I am wrong about that. Did I misunderstand you?

PN169

MR WOOD: No, you didn't misunderstand me. I wouldn't withdraw the letter because as far as the writer of the letter is concerned it is what will happen in time given the appropriate notice, and I am familiar with what the requirements are. I haven't gone to each section of the Act and said - - -

PN170

THE COMMISSIONER: But this letter does not actually set out claims upon which a bargaining period may be initiated. This letter relates to something else. It may relate to a bargaining period, I don't know, but it doesn't appear to.

PN171

MR WOOD: No, no.

PN172

THE COMMISSIONER: It doesn't say, for instance, the certified agreement is approaching its expiry date, we wish to meet with you to discuss the following matters, a wage increase et cetera and we wish to confer with you with a view to making genuine attempts to reach agreement on our claims. In the event that you do not meet and confer with us or do not make genuine attempts to reach agreement with us we will take industrial action in accordance with the Act in support of our claims. It doesn't say any of those sorts of things so it doesn't have the character on the face of it anyway, it may have it imbedded within it, but on the face of it, it doesn't seem to have such a character.

PN173

MR WOOD: All right.

PN174

THE COMMISSIONER: So I can't assume that this is necessarily a letter which is in relation to the initiation of a bargaining period. There is no mention of that as Mr Sandler, correctly I think, points out.

PN175

MR WOOD: Yes.

PN176

THE COMMISSIONER: Now, if that is the case and the letter is fully expressed or whatever and you intend to do that, then you probably need to do it. But in the meantime there is no evidence of that before me. You know, it is not a question of possibilities here. It is a question of what is the factual situation on the balance of probabilities, not the fact that it is possible that you might initiate a bargaining period et cetera. Just the mere possibility of that is not of any real consequence in this matter until action is taken to do so.

PN177

MR WOOD: Commissioner what if we proceed this way. I will withdraw the letter, I will contact Mr Pen and give him some instructions from the union. We will comply with the Act and - - -

PN178

THE COMMISSIONER: You will not take any industrial action. Can you give an undertaking not to take any industrial action?

PN179

MR WOOD: I'm not going to take any industrial action. I'm going to comply with the Act. I'm going to give - - -

PN180

THE COMMISSIONER: Yes. Just - you interrupted me, with all due respect, if you will hear me out it is probably better and I think, also with respect, it is in your interests. My understanding is that you are giving an undertaking not to take industrial action except in accordance with the Workplace Relations Act or on any other lawful basis.

PN181

MR WOOD: That's right. Yes.

PN182

THE COMMISSIONER: Is that right?

PN183

MR WOOD: Yes. We don't see a need to talk to the company. I don't see a need to talk to them. I'll talk to Mr Pen. Mr Stannard obviously doesn't want to talk to the national office so I'll talk to Mr Pen and we'll do - - -

PN184

THE COMMISSIONER: Can you put your undertaking in writing please, Mr Wood?

PN185

MR WOOD: We'll withdraw the letter and - - -

PN186

THE COMMISSIONER: Can you put your undertaking in writing, please?

PN187

MR WOOD: Yes. If the Commission pleases.

PN188

THE COMMISSIONER: Thank you. I direct that any undertaking which the union is intending to give in this matter should be provided to the Commission by the close of business on Monday. I reserve my decision in the matter pending that time. I take it, Mr Sandler, I am sorry, did you wish to reply?

PN189

MR SANDLER: No. There is no point, no purpose would be served.

PN190

THE COMMISSIONER: I am sorry if I - it just seemed to me that if there is to be an undertaking and you asked for the withdrawal of the letter. If that has been offered by Mr Wood - you will note, Mr Wood, I did not require you to withdraw the letter.

PN191

MR WOOD: Yes.

PN192

THE COMMISSIONER: Then it is appropriate for me to see the undertaking before I determine this matter. Thank you.

<ADJOURNED INDEFINITELY [3.14PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAVID STANNARD, SWORN PN9
EXAMINATION-IN-CHIEF BY MR SANDLER PN9
EXHIBIT #A1 WITNESS STATEMENT OF MR STANNARD AND MASTER COPY. PN15
EXHIBIT #A2 LETTER RECEIVED FROM THE UNION PN17
CROSS-EXAMINATION BY MR WOOD PN32
THE WITNESS WITHDREW PN141