C2005/3823, Transcript of Proceedings [2005] AIRCTrans 1492 (11 July 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 12055-1

COMMISSIONER RICHARDS

C2005/3823

UNITED KG PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION THE AUSTRALIAN WORKERS' UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/3823)

BRISBANE

1.05PM, WEDNESDAY, 29 JUNE 2005

PN1

MR D PRATT: I am senior advisor with the Australian Industry Group. We appear to make application on behalf of United KG in this matter.

PN2

MR D BROANDA: I appear on behalf of the Australian Workers' Union.

PN3

MS K ALLEN: I appear on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

PN4

THE COMMISSIONER: Good. Thanks.

PN5

MR PRATT: Thank you, Commissioner. Currently before you is an application for a number of things. First and foremost is an order pursuant to section 127
sub 2 of the Workplace Relations Act 1996. Commissioner, second to that is an application for an order for substituted service and finally before you, Commissioner, you should have a draft order in the terms we are seeking on behalf of United KG.

PN6

THE COMMISSIONER: Why is the order for substituted service necessary?

PN7

MR PRATT: Well, Commissioner, the men have already left. The men were represented at all time by representatives of the respective unions who are here today.

PN8

THE COMMISSIONER: My question really is why, for purposes of the service provisions in the order is that not sufficient, why is an order for substituted service required? I just raise it as a question but nonetheless, let's not let that get in the way of things for the time being. It may well just be a redundant exercise but let's proceed to the - - -

PN9

MR PRATT: I think it might be a duplication of the word processing function, Commissioner. I think the application contains within it the terms of service. Commissioner, a simple summary of the facts are as follows, that at approximately, and I suppose for the ease of my friends' note taking, I am referring to a statement made that we seek to bring evidence from a person who is authorised by United KG over the telephone. That is a Mr Joshua Kember. I have to present to the Commission and seek at a later stage after Mr Kember's appearance over the telephone, if the Commission pleases, this statement as evidence and if the Commission is happy to look at that, albeit not tendered as yet, I am going to refer to it as part of my summary of facts. I don't seek to tender the document at this stage however I will flag that that I will seek to tender it through the evidence of Mr Kember himself.

PN10

THE COMMISSIONER: Do Ms Allen and Mr Broanda have a copy of the statement?

PN11

MR PRATT: They do but I have only just provided it to them now, Commissioner.

PN12

THE COMMISSIONER: Okay. Let's just move on. We will come back to all this shortly.

PN13

MR PRATT: Very well, Commissioner. The facts that we allege are as follows, that at approximately 7.15 this morning a meeting took place between representatives of United KG and employees concerning a rally which was scheduled for Thursday the 30th, which is tomorrow, of June 2005. That rally relates to the national day of action over proposed federal industrial relations reformed. And the rally is scheduled at Gove at approximately 4 pm tomorrow. Now, employees of United KG requested that they be released from their roster from approximately 3.30 pm tomorrow onwards to that they might attend the rally. At the 7.15 am meeting this morning, the said Mr Joshua Kember who is the contract manager informed the employees that work was scheduled for Thursday 30 June as normal as per the notion of working roster and that for those not attending the rally on 30 June, work was available.

PN14

Now, the employees that elected to attend the rally were informed that they would not receive payment for time off site which was rostered overtime in accordance with the terms of the agreement currently in term. And also, and I think this is the crux of the issue, Commissioner, they would forfeit their weekly productivity incentive payment for the entire week. You know, if I can provide the parties with a copy of the agreement that is in term, Commissioner, to give some context to what I am referring to, that is the United KG Pty Ltd Gove Services Agreement of 2003 currently in term up until 20 December 2005. At clause 10 on page 9 of that agreement, Commissioner, there is a provision for a productivity incentive payment. The essence of that payment is that all employees, and I quote:

PN15

All employees shall be entitled to accrue on a weekly basis the productivity incentive payment (PIP) of $1.53 flat for each hour worked subject to the following, (a) employees must work the full rostered working week or as otherwise engaged without any disruptions, bans or limitations.

PN16

There are some further provisions or conditions that make that payment of the PIP subject to, but we seek to refer the Commission principally to the issue that the $1.53 an hour is payable for every hour worked so long as there is no disruption, ban or limitation. Now, what is being proposed, I am instructed from this morning's meeting was that employees who decide not to attend work for the purposes of attending the rally tomorrow will forfeit their payment under the PIP provision at clause 10 of the in term agreement. That was met with considerable unrest I am instructed, Commissioner, and there is some suggestion that other sites in the area not within the control of our member are being more, shall I say, accommodating or perhaps more flexible in changing rosters and might have available to them the ability to move work around so that those employees might be able to still obtain their productivity incentive payments.

PN17

Because, if I can put it in these terms, if my client was able to move its work around and then say, well work continued throughout this week normally and as rostered and without any disruption, then employees would be entitled to their productivity incentive payment. Now, our member has said that that is not an option, that the work cannot be reallocated nor should it be compelled, we might make the submission in advance of any submissions that might come after me, nor should we be or feel compelled to have to make such accommodation. However, for whatever reasons, our member has decided that it won't make such accommodation and has advised this morning the workers, 30 of whom have subsequently taken the strike action, the subject of the application, that they will lose their productivity incentive payments and will also lose, of course, the overtime that they might have earned for a period that they will be away attending the rally if they choose to do so.

PN18

Commissioner, the union delegates address to the employees at United KG then informed our member that the employees would be withdrawing their labour for 48 hours. Subsequently, Commissioner, the employees left the site at approximately 7.30. So we are talking all in the space of 15 minutes. There has been a meeting gathered for the purposes of informing the employees that if they choose to attend the rally tomorrow they will simply lose their productivity incentive payment and the overtime that they might otherwise have earned. That our member is unable to or unwilling to, for whatever reasons which are entirely his prerogative, to shuffle work about so as to maintain continuity of rosters to meet with some definition that is found within clause 10 of the agreement.

PN19

So encapsulating that, the issue in dispute that is at the heart of the action taken is the failure of United KG to pay a productivity incentive payment for the entire week, which of course it really doesn't have any choice. It is a payment accrued on a weekly basis providing that there are no disruptions and bans or limitations. That is precisely what has occurred with regard to what is going to take place tomorrow. So on the strength of that news this morning, the workers through their delegates have advised our member that they will withdraw their labour, they will not be returning for a period of 48 hours. Commissioner, the hours of work clause in the agreement provides for a notional working roster which comprises 60 hours a week, 10 hours a day, Monday to Saturday including rostered overtime.

PN20

The employees are required to be ready at their place of work following the commencement of rostered working hours and whilst there is the capacity for the notional roster to be varied by agreement between the employee or section of employees concerned and the company, United KG elected on this occasion not to vary the notional roster. So I am sure my friends will point you to a provision within the agreement that allows our member to do what others in the area might have been able to do or have chosen to do.

PN21

But it is by agreement and on this occasion, our member has elected not to do that. Those are the facts, Commissioner. The orders sought are, and I should turn particularly to the duration of the order, we are instructed to seek an order that has a duration of up to and including 20 December 2005. Now, I am sure my friends are alive to that issue and will argue that that is far too long. As the Commission knows, this is not the first occasion that our member has been before the Commission seeking orders in this particular site and others involving these two unions.

PN22

There is a pattern and a process and there is every expectation that there will be further strike action, the subject of which we may well end up before the Commission. Now, my friends will obviously argue that that is our right and we can come back again on those occasions. There is no need, so the argument will go, to be so draconian as to give us an order for up to six months, or the best part of six months. In light of that, Commissioner, we would say that there is a perfectly good certified agreement in term which provides for dispute resolution procedures which are very clearly set out within the orders that we are seeking. The spirit of the agreement and the spirit of the dispute resolutions procedures has been utterly abandoned by the unions and the workers this morning and the orders we are seeking are very, very much tied to the term of the agreement for those reasons that we say the orders do nothing more than enshrine the spirit of the agreement which says we have an arrangement, we have an understanding of how we will deal with disputes.

PN23

If matters aren't resolved we will continue working until they are and at such time as we feel the need, either party can involve the Commission in that process. That is why we have sought the duration of the order to be up to and including the date where the agreement comes to its nominal end. Commissioner, those are essentially my submissions. As I mentioned earlier, we have Mr Kember available on the telephone and his evidence will go to the facts that I have already raised with you. I have a signed statement from Mr Kember which I would seek to tender but for obvious reasons, we would prefer to tender that as a sworn statement after hearing from Mr Kember over the telephone if the Commission sees fit. But I have no further submissions unless the Commission has any questions of me.

PN24

THE COMMISSIONER: Not at this point but having now elucidated the framework of the application, are the respondent unions positioned to provide a rebuttal or their own evidence in relation to the matters that are afoot?

PN25

MR BROANDA: Commissioner, on behalf of the AWU I have been able to seek - I don't know how to say this politely, stuff all in the way of instructions, Commissioner. We - - -

PN26

THE COMMISSIONER: Sufficiently politely.

PN27

MR BROANDA: Sufficient, Commissioner. There is another word I would have preferred to use but on transcript it is probably inappropriate. Commissioner, we became aware of this issue at 10 past 12 when we received notification from the Commission. We didn't receive the application until a short time after that. I apologise as in reverse, we only received the application at midday and received the notification at 10 past 12. Given the time of day, Commissioner, we have, I would suspect - well, we haven't been able to seek detailed instructions, Commissioner and I would suspect that is as a result of the time of day people being on lunch breaks et cetera. Commissioner, I do have - - -

PN28

THE COMMISSIONER: Well, the application itself doesn't elucidate the reasons other than the reference to the stoppage.

PN29

MR BROANDA: Commissioner, I am not satisfied even that they guys are on strike. I haven't been able to clarify whether that is in fact the true situation. That may be the situation, the fact is I have been unable to, in this short timeframe, to seek any sort of detailed instructions about are they on strike, what is the exact reasons. I have heard - - -

PN30

THE COMMISSIONER: Ms Allen, are you in the same situation?

PN31

MS ALLEN: Yes, Commissioner, I have received very limited instructions in relation to this matter. I have been unable to contact our Northern Territory organiser, have not been able to contact our delegates and am largely grasping at straws in relation to this matter. I would say though, that if Mr Pratt seeks to tender evidence it is his decision, I am certainly - and my union is not prepared to say either way whether or not he should tender the affidavit or the witness statement. We say that the onus is on the application to establish the statutory criteria in relation to whether or not industrial action is impending or happening and certainly it is his decision, not the union's decision, as to whether or not he tenders or seeks to tender that evidence. But, Commissioner, we certainly don't have any evidence to tender given the short timeframe in which we have been able to prepare for this matter and the fact that I am unable to contact any of the union representatives in the Northern Territory.

PN32

THE COMMISSIONER: Okay. Thank you. What I propose to do, seeing we now have a feel for the alleged facts of the situation, is that I intend to adjourn until 2.15 to provide an opportunity for the AWU and the AMWU to make what further telephone calls they can in an attempt to gain some further instructions. If they need access to the Commission's facilities for that purpose, I am more than happy to arrange that to assist them. Mr Pratt, do you find objection to that approach?

PN33

MR PRATT: No, Commissioner.

PN34

THE COMMISSIONER: Good. Thank you. Will the AMWU and the AWU be able to make some effort during this period to - - -

PN35

MS ALLEN: Commissioner I certainly will make an undertaking that I will try to contact these people but I don't hold any hope that in the next 45 minutes I will be able to contact them. I don't even know where the Northern Territory organiser is at the moment. The nature of his job is that he moves all around the Northern Territory. I had massive trouble trying to find the delegate so certainly I am happy to undertake whatever I can to contact him but we might be in the same situation.

PN36

THE COMMISSIONER: Well, let's see how we go, we will give it your best shot. There is about 51, 52 minutes at your disposal there. As I said, if you need any access to telephones that can be arranged. Thank you.

PN37

MR BROANDA: Commissioner, same from the AWU.

PN38

THE COMMISSIONER: Okay. Good. Thanks. We are adjourned.

<SHORT ADJOURNMENT [1.23PM]
<RESUMED [2.34PM]

PN39

THE COMMISSIONER: Thanks everyone. Yes, Mr Pratt?

PN40

MR PRATT: Thank you, Commissioner. We appreciate the adjournment. We have had some discussions but we seek to proceed with our application and to that end, we wish to call evidence over the telephone of a Mr Joshua Kember. May it please.

PN41

THE COMMISSIONER: Good. Thank you. Yes, would you like to instruct
Mr Kember of the circumstances and what we are about to do?

PN42

MR PRATT: Josh, it's Dan Pratt here. Can you hear me?

PN43

MR J KEMBER: Yes, I can.

PN44

MR PRATT: What we are going to do is have you take an affirmation over the telephone I am going to seek to identify for our purposes here, the statements you made and sent to me today and then ask you to swear that that is true and correct.

PN45

MR KEMBER: Yes.

PN46

MR PRATT: I will then seek to tender that as evidence in chief and I won't be asking any further questions of you at that point. It will then be over to the advocates from the AMWU and the AWU to ask you some questions.

PN47

MR KEMBER: Okay.

PN48

MR PRATT: It might be then that it comes back to me and it might be then that the Commissioner has questions of you as well. And that is the way things will proceed. So at this point, I will hand you over to the Commissioner's associate to repeat an affirmation.

PN49

MR KEMBER: Okay.

THE FOLLOWING EVIDENCE WAS CONDUCTED VIA TELEPHONE CONFERENCE
<JOSHUA ROSS KEMBER, AFFIRMED [2.36PM]
<EXAMINATION-IN-CHIEF BY MR PRATT

PN50

MR PRATT: Witness, it is Dan Pratt again. Can I ask you to state your full name and address for the record please?---Joshua Ross Kember, (address supplied).

PN51

Thank you, Mr Kember. Have you prepared a statement in preparation of today's proceedings?---That is correct.

PN52

Do you have a copy of that statement in front of you at the moment?---Yes, I do.

PN53

Can I refer you to it and ask you to identify that statement is headed Australian Industrial Relations Commission?--- That is correct.

PN54

Further on down the first page, it says Statement of Joshua Kember?---Yes.

PN55

It begins by saying:

PN56

I Joshua Kember, care of Suite 405/ Level 4 Toowong Tower 9, Sherwood Road, Toowong, Queensland, 4066, state as follows.

PN57

Is that correct?---That is correct.

PN58

Further on down that first page, at paragraph 3 the statement we have here says:

PN59

This action by the employees is in breach of our agreement et cetera.

PN60

Is that what you have?---That is correct.

PN61

The next paragraph is paragraph 4 which states the background to the strike action is as follows:

PN62

(a) 7.15 am on Wednesday 29 June 2005 a meeting took place between United KG et cetera.

PN63

Is that correct?---That's correct.

PN64

(b) commences:

PN65

At the 7.15 am meeting, the United KG -

**** JOSHUA ROSS KEMBER XN MR PRATT
PN66

Et cetera. Is that correct?---That's correct.

PN67

(c) commences:

PN68

Employees electing to attend the rally would not receive payment -

PN69

Et cetera. Is that correct?---That's correct.

PN70

That's the end of the text on page 1, is that correct as far as you have got?---That's correct.

PN71

And is that your initial that appears at the bottom of page 1?---The bottom right hand corner. That's correct.

PN72

Going over to page 2, commences with paragraph, or subparagraph (d) which starts, quote:

PN73

A meeting took place between United KG and United KG AMWU and AWU union delegates shortly after the 7.15 am meeting -

PN74

Et cetera. Is that correct?---That's correct.

PN75

Further on, subparagraph (e) commences:

PN76

The union delegates addressed -

PN77

Et cetera. Is that correct?---That's correct.

PN78

Paragraph (f):

PN79

The issue in dispute is the failure of United KG to pay -

PN80

Et cetera. Is that correct?---That's correct.

PN81

Paragraph (g) commences:

PN82

The hours of work clause in the agreement provides -

PN83

Et cetera?---That is correct.

**** JOSHUA ROSS KEMBER XN MR PRATT
PN84

And the final paragraph I paragraph 5 which says:

PN85

We believe that the strike action is based on a refusal by United KG to alter shift rosters -

PN86

Et cetera. Is that correct?---That's correct.

PN87

And I ask you to swear that that is a true and correct statement of your evidence in this matter?---That's correct.

PN88

You do so swear?---I do so swear, yes.

PN89

MR PRATT: Commissioner, I have a copy of that statement I have just sought to identify and I wish to tender that as an exhibit. If it pleases.

EXHIBIT #A1 STATEMENT BY MR JOSHUA ROSS KEMBER

PN90

MR PRATT: Thank you, Commissioner. I have no further questions of the witness. May it please.

PN91

THE COMMISSIONER: Thank you, Mr Pratt.

<CROSS-EXAMINATION BY MS ALLEN [2.40PM]

PN92

MS ALLEN: Mr Kember, it's Katelyn Allen here, I am a research officer with the Australian Manufacturing Workers' Union. I have just got a couple of questions to ask you in respect of the matters outlined in the witness statement you have just sworn?---Sure.

PN93

Today, at the meeting at 7.15, you say that you had a discussion with employees in relation to tomorrow's rally. In particular, you told employees that the productivity incentive payment for the entire week would not be paid if people attended this rally. Is that correct?---That was part of the conversation, yes.

PN94

Was this the first time you have brought up this issue with the employees?---I brought it up with the AMWU and the AWU union delegates on site yesterday afternoon.

PN95

So apart from yesterday, well, aside from yesterday afternoon's discussions with a number of union delegates, the workforce at large was not aware or could have not been aware of the productivity incentive payment being not paid this week if they attend the rally?---Yes, I didn't address them other than that.

**** JOSHUA ROSS KEMBER XXN MS ALLEN
PN96

Okay. What other issues were discussed at this meeting?---No other issues from the employees other than the fact that I spoke of, you know, notional working day of 10 hours, that people who chose not to attend the rally that work would be available. I then went to say to people who chose to attend the rally there would be an impact such as loss of those hours of overtime scheduled as well as the forfeit of the weekly PIP payment.

PN97

Is there anything else you said at the meeting?---There was just some questions, just general discussion. The guys weren't happy with it but we explained the fact that we have a contract of work and the notional hours and that we had work available for that.

PN98

And when were you first notified of people stopping work today?---At about 7.30.

PN99

Did you make any comments at the meeting about the rally other than what you have already outlined?---No, no.

PN100

No comments whatsoever?---In what way about the rally?

PN101

Any personal- - - ?---I said there was a choice.

PN102

Any personal comments, any personal opinions you held about the rally?---Not at all.

PN103

I don't have any more questions, Commissioner.

PN104

THE COMMISSIONER: Mr Broanda?

PN105

MR BROANDA: Commissioner, I don't have any questions for the AWU of this witness.

PN106

THE COMMISSIONER: Thank you.

PN107

MR PRATT: No questions, thank you, Commissioner.

PN108

THE COMMISSIONER: Good. Thank you, Mr Kember. You are excused. Mr Pratt, do you want Mr Kember to remain on the line or - - -

PN109

MR PRATT: There is no need, Commissioner. Thank you.

**** JOSHUA ROSS KEMBER XXN MS ALLEN
PN110

THE COMMISSIONER: Good. Thank you, Mr Kember, you are excused and my associate will now hang up on you.

PN111

THE WITNESS: Thank you.

<THE WITNESS WITHDREW [2.44PM]

PN112

THE COMMISSIONER: That is the extent of the evidence presumably, Mr Pratt.

PN113

MR PRATT: It is. Thank you, Commissioner.

PN114

THE COMMISSIONER: I turn to Mr Broanda and/or Ms Allen.

PN115

MS ALLEN: Thank you, Commissioner. My union will seek to go first in these matters today, Commissioner. Firstly, I would like to just make some brief submissions in relation to the type of applications before you today. Today's application pursuant to section 127 of the Workplace Relations Act 1996. Now, Mr Pratt on behalf of his client is seeking orders against our members in relation to alleged industrial action. Commissioner, first of all, we would submit that the onus is on the applicant to establish that there is a statutory criteria, that the statutory criteria has been met and that they must establish that industrial action is either happening, threatened, impending or probable and rely upon the authority of Coal & Allied Operations for this matter. Commissioner, I have, as I said, at the beginning of these proceedings limited instructions in relation to this matter. I have been able to speak to our delegate briefly during the adjournment that you allowed us to have about this matter.

PN116

Now, there is a number of issues that I would like to bring up. The first is, and we would rely upon the evidence of Mr Kember who just was present in the court by a telephone in relation to this. And firstly, draw to the Commission's attention that it wasn't until this morning that the employees at large were told that they would not be receiving the PIP order, Productivity Incentive Payment, for this matter. Commissioner, so it is our submission that certainly up until this morning, the workforce at large has held the belief that they would receive the PIP and this certainly has caused some problems. Commissioner, it is also my instruction that there are a number of ongoing issues in relation to employment up at Gove, that the company has not dealt with to the satisfaction of the workforce.

PN117

And it is my instruction that the issue with the PIP is what we would term the straw that broke the camel's back, Commissioner. The employees on a number of occasions have brought up with management a number of issues which they failed to deal with. Commissioner, do you with us to make substantive submissions at the moment in relation to the terms sought in the application?

PN118

THE COMMISSIONER: I am happy for you to proceed as you want to, Ms Allen.

PN119

MS ALLEN: Okay. Commissioner, I would like to draw the Commission's attention to a relevant authority in relation to this matter and it is Gordon & Gotch print number R8130. I don't have - we do have copies of it, sorry, Commissioner. Commissioner, as you are obviously aware it is 127 orders at the discretion of the Commission to grant. We strongly urge the Commission not to grant them in this instance. We say that this dispute has arisen from the management's inactivity in resolving issues on the job. We say that this issue is just one of a long line of issues that have caused problems and that if the company had been more upfront with their employees prior to today, that this issue may have been - we could have resolved it in a more productive manner. Commissioner, I rely upon this decision and I will briefly discuss it, it is print number R8130. In this matter, Commissioner, his Honour Senior Deputy President Williams demonstrates that at large the discretion can actually be - well, that he used his discretion in refusing to issue 127 orders in this matter.

PN120

Commissioner, in this matter, the company applied to stop employees from attending a protest rally against the government second wave of industrial legislation when they weren't granted permission to attend. And his Honour rejected the company's application stating that the employer was being unreasonable. As some background, Commissioner, the Victorian Trades Hall Council had organised a protest rally for Thursday 12 March 1999 against a Bill in the federal parliament which changes the Act to ..... and the National Union of Workers had approached management requesting that the two delegates to be allowed to attend the rally without loss of pay. The NUW also asked management to pay for transportation costs of delegates to and from the protest. And the management rejected this request confirming that it would only allow the two delegates time off without pay to go to the rally. All NUW members at the site then resolved to take off and to attend the rally. The company subsequently filed 127 orders.

PN121

In this decision he noted that the proposed action was for a limited duration, that the company had been, we would say, unreasonable in refusing this request. And what we are relying upon in relation to this matter, Commissioner, we say that there are some analogous circumstances. We say the employees are certainly not at all intending to adversely effect the operations of Mr Pratt's client. We say that the rally tomorrow relates to a political protest, and it is not a protest related to the company, it relates to their opposition to what we say is regressive and draconian laws that may be passed in this country. And Commissioner, my instructions are, albeit quite limited instructions, that the employees on site have been very open with the company in relation to this rally. Most of the employees are only seeking an hour and a half out of their normal working day. These employees have been, as I said, very, very open with the company. They gave them adequate notice and it wasn't until this morning that the workforce at large was informed that they wouldn't receive the PIP.

PN122

Our submission is that it was a widely held belief that they would receive the PIP for the week and that if they did choose to go to the rally when they were supposed to be working, that they would only lose an hour and a half because that would be the period of time in which they should be at work. So Commissioner, we say that the company has acted unreasonably in this and has certainly antagonised the workforce to a point that they feel that this is, you know, roughly $90 each for the week, Commissioner and this is obviously antagonised the workforce. And we say that, as I said before, that it was a widely held belief and the company only chose today to inform the employees of this. Commissioner, my instructions are that this workforce has had a very good history and a harmonious relationship with their employer, that there has been very limited industrial disputation over the last few years and that this is out of character of the workforce and this shows the current problem with the employment relationship up there.

PN123

The union wasn't informed. The union's executives certainly weren't informed of this until after the fact, after 7.30 this morning. So certainly I can't make any comments towards making any submissions with relation to the meetings and certainly aren't going to call any evidence upon that. Commissioner, it has also been brought to my attention that contrary to what Mr Kember has said under oath, and certainly we are not going to be bringing evidence forward but I think it is important for the Commission to understand and be aware that at this meeting it is alleged, has been alleged by a number of people who have attended the meeting that Mr Kember was actually quite, what we would term, abusive and aggressive towards the workers at this meeting. I will leave it to Mr Broanda to elaborate upon this because it has been something that has been brought up by the AWU members but certainly, my instruction is that he was abusive, he tried to intimidate people at this meeting and also made comments that he held, opinions that he held in relation to the rally as well as the proposed IR changes.

PN124

We say that this is completely inappropriate and certainly offended and upset many of the people who attended this meeting which also added to the unrest and dissatisfaction with the employer in Gove. Commissioner, we say that the term of the order sought is excessive, it is too excessive and that if the Commission was of the mind to grant orders that such orders should be for a limited period. The company certainly has not been able to advance any evidence to suggest that there is an expectation of further disputation, contrary to what Mr Pratt has said. There is no evidence that has been called in these proceedings that would suggest that and that certainly a six month term of orders being sought is absolutely excessive and we would ask respectfully that if the Commissioner is of the mind to grant orders in this matter that he carefully considers the issue that there is no expectation or evidence to suggest that further disputation will happen. That this matter is related to an isolated issue and that certainly six months is excessive.

PN125

The other matter I would like to deal with, Commissioner, in relation to AIGs application is the service issue if you are of the mind to issue orders in this matter. In the application for an order of substituted service, the company by way of the AIG is suggesting that service of such orders if you were of the mind to issue them Commissioner, would be done by sending a copy of the order by facsimile to the respondent union parties in this matter. Commissioner, we say this is completely unreasonable, it is certainly impractical, there is no way that we would, if you were of a mind to issue orders we would be able to physically inform all of our members of this.

PN126

We would be seeking for the Commission to look closely into this matter and suggest that it is the company's responsibility to individually contact all of the employees that are affected by the order. I reiterate, Commissioner, that there is no way practically that my union would be able to serve such information on all of our members up there and we would respectfully submit that the Commission needs to take that into consideration if he is of the mind to issue orders.

PN127

Commissioner, in summing up, this issue relates, we say solely to the company's refusal to pay the PIP in relation to what is going to happen tomorrow, that this matter is one of a number of matters that is going on at United KG Gove at the moment. The union has sought unsuccessfully to try to amicably resolve this with the company. We say that certainly the employment relationship up there is a little bit tenuous at the moment and that we do respectfully submit that any such orders could exacerbate tensions between the employer and the employees. This, by no means, is a threat, Commissioner, what I am trying to say is that there are a number of issues up in Gove which I am unable to detail in my submissions but a number of issues, and some of them relate to the other community that need to be resolved and that the company has not resolved them to the satisfaction of the employees. And in many instances, the employees concerns have been completely ignored by the employer.

PN128

And that certainly we, in our respectful submission, say that orders in this matter would certainly not benefit the relationship at Gove. If you have any questions, Commissioner, I am happy to answer them. Other than that we respectfully ask you not to use your discretion in issuing orders in this matter. May it please the Commission.

PN129

THE COMMISSIONER: Thank you, Ms Allen. Mr Broanda?

PN130

MR BROANDA: If the Commission pleases. Commissioner, the AWU largely supports and adopts the submissions of the AMWU already before you. In addition, the AWU seeks to draw your attention to a few provisions, Commissioner. Firstly, in terms of the - well, if I can firstly preface what I am going to say by, I guess, saying that it is accepted I think universally, that there are two stamps here. There is the jurisdictional argument that the applicant must get through and then there is the discretionary argument that the applicant must convince the Commission to exercise. In terms of the jurisdictional argument, Commissioner, the legislation under section 127 of the Workplace Relations Act is clear in its terms in that the jurisdiction of the Commission under section 127 is limited to giving directions about the industrial action that appears to the Commission to be happening, impending, threatened or probable.

PN131

The opening and concluding words of section 127 subsection 1 indicate that particular industrial action as distinct from industrial action in general is what is sought to be prohibited. Now, in terms of that, Commissioner, that is commentary that flows from a matter in the MTIAV AFMEU, the 1997 which now appears at print 77 IR87. In terms of that, Commissioner, in terms of the industrial action sought to be brought to an end or prevented by this application, it is quite clear the evidence before the Commission in the statement of Joshua Kember at point 4(f), the first line makes it undeniably clear, Commissioner. The issue in dispute is the failure of United KG to pay a productivity incentive payment for the week. That is the action, that is the issue that the company - that the application before the Commission seeks to address. Now, Commissioner, that is important and I will come back to that in a moment but it's important for the Commission to bear in mind that jurisdictional point.

PN132

Commissioner, there was a comment made earlier by Mr Pratt about the history of workplace relations at this site. The history of the workplace relations of United KG at Gove is as follows. The company and the unions have been on site together for the last nine years. There have been three EBAs gone through, the fourth one hopefully will come into play early next year or late this year. Commissioner, in nine years there has not been a single industrial dispute at this site, bar one, the matter that we were before the Commission as currently constituted a few weeks back dealing with the issue of the quality of drinking water. And as the Commission will recall, no orders eventually came into place as a result of that matter that was brought before the Commission. That single one issue aside, Commissioner, there is no history of industrial dispute at this site. Commissioner, that is a matter which the AWU submits is a key and important matter that the Commission must take into account in determining whether or not the Commission should exercise its discretion in issuing orders.

PN133

Additionally, Commissioner, on the issue of discretion. Commissioner, in Coal & Allied Operations Pty Ltd v the AMWU, again a 1997 decision appearing at 73 IR311. Commissioner, the Full Bench in that matter made the comment that for the Commission to exercise the discretion, it will usually need to be satisfied that the industrial action to be made subject to the order is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur. The exercise of the discretion is a serious step in the sense that it involves both a finding that the relevant industrial action is or will be illegitimate and a determination that a continuation or a commencement of it should be unlawful as a contravention of the Act.

PN134

In that matter, Commissioner, the Commission refrained from making any order in relation to national or state-wide industrial action, importantly, Commissioner, directed at government legislative policy and the corporate industrial policy of the employer and companies in the same group. Now, Commissioner, equally in the matter that the AMWU, that Ms Allen has already brought your attention to, this decision of SDP Williams is on point, Commissioner. This is the same matter that we are dealing with now is the matter that was dealt with by SDP Williams.

PN135

THE COMMISSIONER: But is it? I mean, I thought the issue was about the PIP?

PN136

MR BROANDA: Commissioner, what we would submit to the Commission is that the issue is about the industrial rally that is to take place tomorrow afternoon and the PIP is a side issue to the company and, as Ms Allen highlighted, the comments of a senior person within the company, their comments about the rally and that particular gentleman's personal views of the Labor movement and what relative impact the rally is going to have in any event. The payment of a PIP as we understand it was the straw that broke the camel's back for the workers. The company is threatening both verbally and physically in their manners, as I am instructed, Commissioner. Again as Ms Allen said, we are both acting under limited instructions but the instructions I do have is that there was threats going on about the workforce and their involvement in the rally. The final threat was well, if you go to this rally we are going to withhold all your PIP. That is what triggered the situation that has brought us before you.

PN137

Commissioner, that we say is the same type of issue that has gone before Senior Deputy President Williams in the Gordon and Gotch and the NUW matter that has been tendered to the Commission. Commissioner, I would seek to take the Commission's attention in that decision to clause 12, in particular the comments of SDP Williams at about halfway through where he commences:

PN138

There can be no doubt that an applicant for a section 127 order is required to make out a case such as would satisfy the Commission that ...(reads)... the entitlement to seek such an order.

PN139

Commissioner, we say that the applicant has done nothing along those lines. The applicant has come here and said, well, I guess, suggested though not directly, but they have suggested that they have an entitlement to bring 127 orders. They haven't made out a case why the Commission should exercise its discretion. Commissioner, further at clause 13, and again this commentary applies equally in the matter before the Commission as currently constituted:

PN140

The case advanced for the employer is that it has a certified agreement with the NUW, that it is ...(reads)... action as is proposed would be in breach of the agreement.

PN141

Now, Commissioner, that is the same issue before the Commission. The company comes before the Commission saying that the PIP payment and/or the action associated with that is a breach of the agreement. That is their case. That is the evidence, that is the submissions thus far before the Commission. Further on point 15:

PN142

No evidence was led by the employer as to the economic effect of the proposed industrial action on its operations ...(reads)... and the uncontested assertion of the NUW is that to the effect that the economic effect will be minor.

PN143

Commissioner, the AWU would submit it is the same situation here. The economic effect on the employer to pay the PIP is minor. The issue at hand is whether those employees could leave the site an hour and a half early and still expect to be paid in accordance with past custom and practice in terms of what they can be expected to earn per hour per week per day. Further, SDPs comments at point 16:

PN144

In my view, the employer's denial of the original request for the release of the two delegates without loss of pay was, in all the circumstances, unreasonable.

PN145

We say it is the same situation here. Further over the page:

PN146

Time lost through industrial disputation appears to have been negligible.

PN147

Commissioner, in this case it is non-existent. Its refusal a request that would have had minimal if any effect on its operations was ungenerous at best and would have sent unnecessary signals to its employees about its attitude to relations within the workplace. Commissioner, again, we say identical comment. Those comments could easily be applied to the situation before the Commission. Commissioner, further at point 17, I won't read that clause, it's a rather long clause but if I can simply direct the Commission's attention to all of clause 17. And then finally, at clause 18:

PN148

In the particular circumstances of the matter before SDP Williams, I am not satisfied that the employer has made out a case that the proposed industrial action is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur.

PN149

And SDP Williams in that matter refused to exercise his discretion in terms of the industrial action in that matter. Commissioner, I mentioned earlier, Commissioner, in talking about the jurisdictional point about the industrial action that the company comes before the Commission seeking orders against. And as I said earlier, the issues in dispute is quite clear. That is made out by the applicant's evidence at point 4(f). Commissioner, in terms of the duration of the 127 order sought, we say would breach the jurisdiction of the Commission because it seeks to envelop potential industrial action further down the track that may or may not occur as a result of things that may or may not take place at some stage in the future. Commissioner, in terms of the jurisdiction of the applicant to bring the matter before the Commission, the jurisdiction of the Commission as I submitted earlier, is restricted to the industrial action that the Commission is satisfied is pending and probable et cetera.

PN150

Commissioner, the only matter that the Commission could be satisfied of such things is the issue, singular, highlighted at point 4(f). To ask for an order in excess of the likely duration of the matter currently before the Commission. Sorry, I start again. To apply for an order that is manifestly excessive in terms of the industrial action that the company comes before you saying is happening, involves a jurisdictional matter that the Commission simply is unable to go to. The Commission's jurisdiction if satisfied that there is a discretion to be exercised, would be restricted to the industrial action that the company complains of, that being point 4(f), the issue about the productivity incentive payment for this week, and this week only, Commissioner. That is the only evidence before the Commission. That is the only matter that the applicant seeks to bring before the Commission's attention. Commissioner, as with the AMWU, the AWU submits that the Commission should not exercise its discretion in light of all the circumstances.

PN151

Commissioner, when you take a step back and have a look at what we are talking about here. We are talking about the seeking of the union members to leave the work site an hour and a half early to attend a political rally. Commissioner, the case law before the Commission in both the Coal & Allied Operations matter and the Gordon and Gotch Pty Ltd matter both go to the refusal of this Commission to issue orders in respect of political matters. Commissioner, we say that that trend if you like, of the Full Bench and the Coal & Allied Operations matter and the Senior Deputy President Williams in the Gordon and Gotch matter should be continued with the Commission as currently constituted. There is no case before the Commission to exercise its discretion.

PN152

There is a mild case going to the ability or the jurisdiction of the applicant to bring the proceedings but there is nothing before this Commission going to why the Commission should exercise its discretion. Such things would include the history of the matter which I have dealt with, the potential of future action which is non-existent again before the Commission and Commissioner, issues to deal with other issues the Commission might take into account in exercising its discretion are the financial or economic impact of any action.

PN153

Again, there is no evidence before this Commission on any of those points. We say therefore that the Commission should not exercise its discretion in the proceedings and on the material currently before the Commission. May it please the Commission.

PN154

THE COMMISSIONER: Thanks, Mr Broanda. Mr Pratt, you are in the happy situation today of having heard the submissions that you may not have - you would usually have had to respond to so perhaps you could address as many of them as you could.

PN155

MR PRATT: Thank you, Commissioner.

PN156

THE COMMISSIONER: Including the practical issue of service, which I have to say arises as a result of geography.

PN157

MR PRATT: Yes, Commissioner. I will talk to that point too. I do wish to respond.

PN158

MR BROANDA: Commissioner, if I just might add, just before Mr Pratt gets started, I just clarify for the record the AWU supports the submissions of Ms Allen in terms of the supplementary order.

PN159

THE COMMISSIONER: Thank you. Relating to service?

PN160

MR BROANDA: Sorry, the service of the order.

PN161

THE COMMISSIONER: Yes. Mr Pratt?

PN162

MR PRATT: Commissioner, if we can address first. We do have a list of - it is a camp environment, Commissioner, and I think we have demonstrated today that it is not difficult to get a hold of these workers. We have provided phone numbers to in the adjournment to my friends from both unions who were able to contact both delegates almost immediately. We have a list of all of the employees involved and we can serve orders on each individual employee and that this is not a situation where employees have scattered to the wind and can't be found. This is a construction site that exists quite in isolation from outer suburbia Wacol where workers might have walked away from a manufacturing plant and disappeared who know where. We can find these people, Commissioner, and our submissions to you are in essence that the assertion from the bar table from my friends ought not be considered as an impediment to issuing of orders with regard to effective service of those orders.

PN163

We simply seek to be able to serve the orders on the union, the unions, rather. Have the unions play an active role in determining the service on those orders of the individuals but we are willing to undertake an active role in that service ourselves, if it please Commissioner. And I can state very clearly, I have instructions, I have seen that list. I regret I haven't brought it with me but it is on my desk and I can assure the Commission that that will not be a difficult task.

PN164

THE COMMISSIONER: So are you asking me to amend the clause 4 of the draft order to include a service provision for the employer in addition to (a) and (b), that is a new subsection (c)?

PN165

MR PRATT: Yes, Commissioner, in addition to rather than in substitute of. Yes.

PN166

THE COMMISSIONER: Yes. But then would you like to tell me how that should read?

PN167

MR PRATT: The application for an order for substituted service, Commissioner?

PN168

THE COMMISSIONER: No. this is new clause 4(c) of the draft order. I presume from what you have just said to me that it would read something to the effect like, such as following after the end, the company serving on individual employees a copy of this order. Is that - - -

PN169

MR PRATT: That is quite correct, yes, Commissioner. That certainly would suffice. Commissioner, if I might respond to the submissions of my friends. Firstly, the submission of the AMWU referred to the statutory criteria that must be satisfied. There is very clear evidence before the Commission that industrial action is taking place. That action at the very least, at the most confined view of it, is likely to take place for at least the next 48 hours or 48 hours as of 7.30 this morning. And I will turn to the issue of the duration, I have already made submissions effectively on the duration we have sought, but I will turn to that momentarily.

PN170

The next point the AMWU made was that it wasn't until this morning that the PIP payment - or workers were informed they wouldn't be getting the PIP payment. Clause 10 of the agreement is very clear, Commissioner. Anyone from the date that this agreement came into force, considering taking leave of their station during a rostered period of work, can for anyone who cares to read this clause, know that the PIP is subject to them not doing precisely that.

PN171

The spirit of the clause as it was agreed to and certified is that you do the shift in its entirety and you get the payment. If you do not, for a number of those reasons listed, you don't. Now, to say that they were advised this morning that they wouldn't be getting the payment is fair in the sense that that what was said this morning. To suggest that no-one knew or that they were led to believe otherwise would take place until this morning, is absolutely wrong. It is there for all to see what the circumstances and arrangements are in place, forgetting the PIP and it is plainly obvious what happens if you don't attend work for those listed reasons.

PN172

The AMWU also suggested that there were a number of ongoing issues but I can't point out strongly enough that none of those, there is no evidence as to a safety issue existing here and it purely is a situation where workers have just become dissatisfied with a decision firmly couched in terms of managerial prerogative. It is simply a classic case of asking for something which you are not entitled to, being told, no and then walking for 48 hours as a result. That is the subject of the application, not some other assertion that we are trying to restrict them from attending the rally, which was generally as I understand it, the nature of his Honour Justice Williams, Senior Deputy President Williams that you have been referred to.

PN173

THE COMMISSIONER: Well, I think it was in the Gordon and Gotch decision, it essentially deals with the right of two delegates to attend in a representative capacity.

PN174

MR PRATT: That's right. And I was going to come to that later but I will come to it now, Commissioner. It's appropriate to deal with. That decision is entirely distinguishable from the facts of this one or this matter and nowhere is that clearer than in the final paragraph of that decision which my friend from the AWU took you to which says, and I quote:

PN175

In the particular circumstances of this case -

PN176

Et cetera, end quote. The circumstances of the application before you are very different from those before Senior Deputy President when that decision was written. The situation before you as you were taken to several times, is encapsulated in subparagraph 4(f) of Mr Kember's evidence which quotes, which says, I quote:

PN177

The issue in dispute is the failure of United KG to pay a productivity incentive payment for the week.

PN178

End quote. So what we are dealing here with, Commissioner, is not a restriction by a member of persons intending to attend the rally. That has been left entirely and utterly open to them. The evidence before you says that those that would do so would simply forfeit their overtime payments that they might have received as a result of working those rostered shifts and as well, in accordance, and I stress, I cannot stress enough, in accordance with the requirement of clause 10 of the agreement, they will lose their PIP payment for the week. There is no room to negotiate in that clause. It says, and I quote:

PN179

To accrue on a weekly basis productivity incentive payment.

PN180

End quote. It does not state that you can have part thereof if you work part of the week. It is a bonus that is paid for full attendance, nothing less. So this is not an attempt to stop employees attending the rally tomorrow. They have been granted permission, they have simply been told that if you attend you won't get paid your overtime and you won't get your PIP. And that is very different from the circumstances in the Gordon and Gotch matter. Commissioner, it was also suggested to you that what we are asking for are orders that are inappropriate, that we haven't made out our case. Perhaps I didn't, in my opening submissions, make myself clear enough. This is perhaps the very type of conduct and behaviour that section 127 was built to address. This is a situation where no safety issue exists, this is a situation where purely a dispute has arisen over whether or not an instrument will, when interpreted, entitle employees to be paid an allowance for a week not properly worked.

PN181

The employees have utterly disregarded the disputes resolution procedure in the agreement and they have walked for 48 hours. That, more than anything, is the sort of conduct that section 127 is there to address. There is also the submission that this conduct is out of character and therefore a problem exists with the workforce that granting of orders in the nature sought might only exacerbate. There is absolutely no evidence before the Commission in that regard. More to the point, you have assertions from the bar table once again that there has been a nine year history of good relations which has suddenly been dramatically departed from by the workers. I make that point very clearly, by the workers taking illegitimate action today at 7.30. The assertion was made by the AMWU from the bar table that contrary to Mr Kember's evidence that his demeanour and manner at the meeting this morning was what incited the departure and the strike by the employees.

PN182

Can I say, Commissioner, that that is not evidence. It is utterly inappropriate to make such comments and assertions from the bar table when we had Mr Kember on the telephone only moments before and that very question could have been put to him in no uncertain terms. He was asked if there was anything else, and he said, no. There was no suggestion made to him that his demeanour - and not that it's relevant either. It may be relevant to the industrial relations on the site but if it is certainly and absolutely not relevant to consideration as to whether or not the orders being sought are appropriate to give. But more is the point, Commissioner, it is inappropriate to suggest that there is evidence in that regard when clearly there is not. The term of the order was then discussed by the AMWU for the duration of the order and it was suggested to you that that is excessive and that it should be limited to suggesting - and the suggestion was made that there is no idea of what will occur in the future.

PN183

There is certainly a very clear indication as to what will occur in the future by the conduct that was carried out today and most recently juxtaposed with nine years, it is asserted, of relatively stable relations. In that sense we put it to the Commission that it may be there is something going on and that is precisely why this is an instance where a very clear message needs to be sent. That is why we have decided to press on and seek orders. It was summarised that this action relates to the refusal to pay the PIP and we couldn't agree more. It is not a quasi or dressed up retaliatory type of action with regard to the rally in support of the national day of action. That is a side issue and, although it may be dear to the hearts of some of the workers involved, that is not at all what we are here today to address. There is no evidence at all before the Commission that the orders would exacerbate the situation in Gove at the moment.

PN184

What evidence is before the Commission is that there is currently an unauthorised - an illegitimate industrial action in progress. The AWU supported the AMWUs submissions and took the Commission to the question of jurisdiction. Section 127 requires applicants such as ourselves to discharge or prove that industrial action is threatened, probable or happening. Certainly, it is very clear that industrial action is happening. The point made, and as these emergent circumstances are always the case, I cannot remember the reference but Justice Munroe has written a decision with regard to this particular point of threatened or proposed industrial action. And the point I would like to make, Commissioner, and I apologise for not being able to refer to an authority precisely, but the point is well settled. And that is that the Commission in exercising its jurisdiction under section 127 can consider the current and previous conduct of the parties the subject of the order.

PN185

We would like to refer the Commission to the situation that transpired this morning. The men who at all times have had access to and involvement in the drafting and creation of the agreement, who at all times have known in advance that if they don't work their full rostered shift they won't get the PIP, when apparently learning for the first time this morning that they wouldn't get their PIP if they left early for tomorrow's rally, have suddenly taken offence to that and taken a wildcat strike, the duration of which is 48 hours. That is what is in evidence. We say, Commissioner, that that is enough. And the history, the most recent history of the conduct of the parties out there on site is enough to grant orders in the terms sought. The agreement is in term until 20 December 2005, that is not a long time away. It is not a long time to ask the workers to behave themselves and conduct themselves in a manner that is in the spirit of the disputes resolution procedures and to stick to the deal that they made way back when this was organised with regard to the PIP.

PN186

It is not a long time to say we will follow that to which we have agreed. Commissioner, there was also the comment that this is a departure from past custom and practice. There is absolutely no custom and practice of evidence of such before you and my instructions are that there is certainly no custom and practice in place for manipulating or chopping up the PIP with regard to some shifts not worked and some others worked.

PN187

THE COMMISSIONER: Unless I have missed something, my notes don't record a reference to that being made by the respondent parties to past custom and practice. Have I missed a submission.

PN188

MS ALLEN: I certainly didn't make that submission.

PN189

MR PRATT: No, it was - - -

PN190

MR BROANDA: Commissioner, it sounds familiar. I can't remember in what context. I don't think I was seeking to make any point - - -

PN191

THE COMMISSIONER: The submission I am referring to is - I am not saying Mr Pratt is out of line at all, I am just saying I don't remember a submission that the PIP has been - the obligations under clause 10 of the agreement have been waived in prior circumstances. I don't recall anyone telling me that.

PN192

MR PRATT: The Commission is quite right there. I don't recall such a detailed submission. I recall only and have noted the comment with regard to a departure from past custom and practice. I am inviting the Commission to infer, as I have, that that indicates that there has been some flexibility in the past with regard to this with which we are being unreasonable now in our position with regard to not paying the PIP, which is, of course, at the heart of the issue.

PN193

THE COMMISSIONER: I seem to recall the only submission that came to me that has got a flavour of this issue is the element of surprise that came as to the statement that the PIP wouldn't be available. I mean there might have been intended to be an inference or rather, sorry, there might have intended to be an implication that the element of surprise is a suggestion that there have been compromises in the past but it is not a - the Commission would not make an inference from that submission, though an implication might have been intended to be conveyed.

PN194

MR PRATT: And the point is taken, Commissioner. And can I simply add to that that we would affirm and make the submission that there is no evidence of a past custom and practice of dealing or manipulating with the PIP. That is our submission. I am not suggesting that is a submission from my friend from the AWU. The notion nonetheless, is very clearly dealt with when one reads what clause 10 of the agreement has to say, and that is that you get the PIP for over and above what you are ordinarily entitled to for what the words suggest, productivity. And subject to the following, which I quote:

PN195

Employees must work the full rostered working week or as otherwise engaged without any disruptions, bans or limitations.

PN196

Now, whether or not it is an hour and a half early departure for the rally, whether or not they are working, as are my instructions, and I concede that there is no evidence to this point, they are working 12 hour shifts at the moment and that amounts to a more significant departure from the ordinary rostered work, is nonetheless. The point is that it is a disruption to leave early and the Commission - we assert that the employer or the company is entirely reasonable when bound contractually by its obligations to the party that did services, to advise its workers that it is not available to them or they are not at liberty to change rosters around so that they can continue on the working week without interruption to the PIP.

PN197

Now, whether or not it is that news that came as a surprise this morning, there is no evidence on. The evidence that is before you from Mr Kember says very clearly that the men were told this morning that they wouldn't receive their PIP if they were to attend the rally. Commissioner, it is that simple. Our member has not told its employees they can't attend the rally. It is not seeking orders from you to restrict them from attending the rally, that has never been an issue. What is the issue is it is simply advised the workers very clearly that its view of clause 10 of the agreement and the lie of the land at the moment with regard to moving shifts and rosters is that anyone who leaves work early tomorrow to take part in the rally will not receive the PIP and will, of course, not receive the overtime that they would have received for working that shift.

PN198

Commissioner, one final point before I finish. It was suggested to you by the AWU on two occasions that the PIP was a side issue and that our member was engaging in some campaign to try and thwart efforts to attend the rally. That was the assertion. There is clearly no evidence brought to support that assertion but in making that assertion, with the greatest respect, my colleague has contradicted his own submissions which referred the Commission on two other occasions to the evidence of Mr Kember at paragraph 4(f) which said the issue in dispute is the failure of United KG to pay a productivity incentive for the payment for the week.

PN199

That is the issue. That is what the evidence deals with and in our submission, Commissioner, never was there more an appropriate case for the use of the discretion enshrined in section 127. We have an employer contractually bound to perform work and to provide workers, we have a certified agreement which is in term which provides a dispute resolution procedure which has been departed from by the workers this morning. And at the heart of the issue is not a safety issue, it is a sense of dissatisfaction by workers at being told that they will not receive a payment which is very clearly and expressly catered for by way of circumstances in clause 10 of the agreement. Commissioner, those are our submissions. Unless you have any questions of us.

PN200

THE COMMISSIONER: Good. Thank you, Mr Pratt. We are out of sequence today and taking an informal approach to these closing submissions. I don't think anything turns on that but Mr Broanda, you have a - and after Ms Allen's finished I will let you have a final say as well, Mr Pratt, if anything arises.

PN201

MR BROANDA: Commissioner, I do have a couple of things to say on behalf of the AWU. They are largely restricted to those submissions that Mr Pratt has just put to you. They are relatively short, Commissioner. I won't take up too much time with this. Commissioner, you have been taken to clause 10 of the certified agreement, I don't know that it has been formally tendered but in any event, I understand the Commission has before it a copy of the certified agreement. Of importance, Commissioner, at clause 10, Mr Pratt has taken you a few times to clause 10(a) where the agreement refers to employees must work the full rostered working week or as otherwise engaged without any disruptions, bans or limitations. Now, Commissioner, the comment was made - a few comments were made which I thank Mr Pratt for actually, Commissioner. Comment was made that there is no room to negotiate on that clause.

PN202

Well, Commissioner, there clearly is. Clause 10(e):

PN203

Authorised absences shall not result in the forfeit of any payment of accrued PIP.

PN204

Now, Commissioner, the further comments of Mr Pratt then were, and I quote:

PN205

You can attend, you just won't get your PIP.

PN206

Now, Commissioner, the words are "you can attend". That's authorisation. Commissioner, the company has clearly authorised the workers to have that hour and a half off so that they can go to the rally. That is not in dispute before the Commission and in fact I think that is the position that has been maintained by both the company's representative and the company on the telephone that they at no time are denying the workers the opportunity to attend the rally. They are authorising the attendance at the rally. Clause 10(e) then provides that the PIP should be paid. Commissioner, I agree in some part with Mr Pratt in his submission that clause 10 is clear. It is clear. There is authorisation. The company concedes there is authorisation. Clause 10(e) says they get the PIP, it's black and white. It doesn't get any simpler, Commissioner.

PN207

Then for the company to turn around and say, we are not going to pay you your PIP. It is the company that is in breech of this agreement, Commissioner. We say that adds more weight to the issue of discretion on whether the Commission should exercise its discretion in awarding orders against the AWU and the AMWU and its members. There has been in submissions and in evidence, authorisation. Commissioner, there was a comment made about the SDP Williams decision, in particular at clause 18. There was a comment made about the first line:

PN208

In the particular circumstances of this case -

PN209

And goes on from there. Commissioner, I don't deny that clearly, SDP Williams decision relates to that case and it can only relate to that case. However, the comments of importance in clause 18 are that the SDP Williams has adopted the approach that in making section 127 applications, an employer has to make out a case that the proposed industrial action is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it cease or not occur. Now, Commissioner, I accept and that cannot be disputed that the SDP refused to issue orders on the particular circumstances of that case. However, the principle that he adhered to, the principle that was applied in the Full Bench in the Coal & Allied Operations matter which SDP Williams found appropriate and applied in this matter, is that the applicant must make out a case of the legitimacy or the illegitimacy of the action for which it seeks remedy through the Commission.

PN210

We say that as in the SDP Williams decision and the Full Bench decision, the applicant here has not made out a case for the Commission to exercise its discretion. And on that point, Commissioner, Mr Pratt took you - made some comments on the point about reasons for why the Commission should exercise its discretion. The first one Mr Pratt commented on the nine year history of industrial relations at the worksite. And Mr Pratt suggests that this nine year good behaviour has been departed on by the employees. Well, we say it's quite the reverse, Commissioner. We say it is quite to the reverse. In the other matter of which this Commission may have knowledge of with the dealing with the suitability of the drinking water, that issue turned on, as the Commission knows, the issue of is the drinking water safe. Other companies at this particular worksite provided their employees with bottled drinking water to alleviate the situation until the drinking water could be clarified. This company didn't.

PN211

As soon as that drinking water was clarified the employees went back to work. That is the extent and that is the only history that there is. Now, we say the employees didn't depart from the good working relationships at all. The employees refused to work at a potentially unsafe worksite. Once their safety issue was clarified, the employees immediately returned back to work. In terms of this issue, we say that the employees have done nothing more than seek the authorisation of the company to attend the rally. The company has provided authorisation, the company has not suggested at any stage that those workers must attend work, that they cannot leave the job site early. At all stages, the company has said fair enough, you may go. We won't pay you for the hours that you are not working but you may leave the job site. That is authorisation, Commissioner. Then to turn around and say, we are not going to pay you PIP is nothing more than an inflammatory comment, it is nothing short of inflaming a situation that didn't need to be inflamed.

PN212

Commissioner, we say it is the company that has instigated the departure from nine year good working relationship. Commissioner, on that point, the representative, Mr Pratt, for the company made the comment that they concede that the demeanour of the particular gentleman in question, that was the witness here today, that the demeanour of him is relevant to industrial relations on sit. He seeks to somehow separate the relevance of the industrial relations on site to the issue before the Commission. Commissioner, we say there cannot be any separation of the issue. If you recall, Commissioner, Mr Pratt made these submissions about the demeanour of the witness at a meeting this morning and about the relevance of that to the present proceedings. The comment is, and I quote, is relevant to industrial - sorry, I withdraw that. May be relevant to industrial relations on site, is not relevant to the current application.

PN213

Commissioner, I fail to see how you can separate the two. Commissioner, there was a comment that going to the history of the matter, I think the line of submissions were going to why the Commission should exercise its discretion, and again it was going to history of the workplace relations, sorry, the industrial relations in the workplace and the potential for future industrial disputation. And the submissions were along the lines of the length or the duration of the orders sought. Commissioner, the comment was, or there was a claim that the conduct today is indicative of what may be expected in the future. And then the respondent's representative then went on to say that the actions this morning plus recent history give the Commission grounds to presume that further industrial disputation will take place. Commissioner, again there is no recent history and the applicant in this matter could not take you to any details or any submissions on any recent history.

PN214

The only recent history that is before this Commission is what I have mentioned about the quality of the drinking water. And as the Commission is aware, that matter was resolved the second that the place was declared safe to be at. Commissioner, the actions this morning that the applicant has mentioned and has taken you to, I submit is no indication of anything that is going on in the workplace, it is not indicative of any matter that may or may not happen in the future. And in somewhat in a circular argument, Commissioner, I come back to my original submissions that the jurisdiction of the Commission under the current legislation is restricted to the action that the Commission finds is pending, probable or happening. And again, the evidence before the Commission at clause 4(f) of the witness statement deals with the productivity incentive payment. Commissioner, the broad assertion by the applicant that there is probably going to be lots of industrial disputes between now and Christmas is not supported by anything other than the applicant's representative standing here and saying there is going to be more fights down the road. Commissioner, that is not something the Commission may take into account in determining the length of the orders if the Commission in fact finds there is discretion to, that the Commission should exercise its discretion and issue orders.

PN215

Commissioner, just finally there was comments by Mr Pratt about me contradicting myself in terms of clause 4(f) being the issue in dispute and then saying that the productivity incentive payment is a side issue. Commissioner, just to clarify that for Mr Pratt and for the Commission, our primary position is that the situation that is currently in place in Gove is as a consequence of the behaviour of a certain person in management. Now, I haven't been able to find someone to come before the Commission to provide that in evidence. I have as many people as the Commission would like that can provide that as hearsay evidence. Commissioner, as you would no doubt be aware, I am sure Mr Pratt wouldn't have allowed any sort of hearsay evidence so unfortunately been able to provide any direct evidence. Our primary position though is the blue was over the attitude and the comments of a certain individual on site.

PN216

However, in the alternative, my submissions were, going to 4(f), if the Commission finds jurisdiction and decides to exercise its discretion, the orders can only refer to the matter that is in dispute. And that matter is detailed at clause 4(f). There is the distinction to be drawn, there is no contradiction at all. We stand by and maintain our position that the blue is over something, the productivity incentive payment is a side issue that was the straw that broke the camel's back, if you like. In the alternative though, if the Commission - I accept that there is no direct evidence before the Commission, if the Commission doesn't take those submissions on board and decides to exercise its discretion, the submission from the AWU is clause 4(f) is the issue that is sought to be rectified and that is the issue that the order should be restricted to, in terms of both the application of the order and the duration of the order. Commissioner, that is all I have on the submissions.

PN217

THE COMMISSIONER: Good. Thanks, Mr Broanda. Ms Allen?

PN218

MS ALLEN: Thank you, Commissioner. I firstly apologise for mucking around with the way in which the matter was to progress today. I presumably thought that Mr Pratt said that he ..... the submissions.

PN219

THE COMMISSIONER: No, that's all right. We can cope with the informality. It would be a welcome change I think.

PN220

MS ALLEN: So I apologise for that. I certainly wasn't intending any mischief, I thought Mr Pratt had finished and we were responding. Commissioner, I have just got two issues to raise with you. The first relates to the authority we relied upon before. The reason why we relied upon that and I think it is important for us to make this submission, is that we do say that there is some analogous circumstances between what is happening today and what happened in the past with the NUW and the workers at that workplace. The reason why we chose that authority, Commissioner, is that we say that - well, as I outlined briefly in my submissions before, that dispute obviously related to the loss of pay of representatives seeking - well, the company's refusal to pay delegates wishing to attend the protest rally.

PN221

We say that there is an analogy that can be drawn in relation to the PIP issue with respect to what we would say in our submission is that the PIP may be then used as a way to deny workers or used as an impediment to workers attending this rally. Commissioner, I certainly don't have any evidence to advance this but that is the reason why we brought that to your attention as well as the fact that his Honour in his decision in paragraphs 13 through to 16, very clearly says that the proposed - well, the action that was proposed to happening was of limited duration. We also say in this case that the action that is happening at the moment is for a limited duration and that the assertions made by Mr Pratt in these proceedings that further industrial action is probable, which he is using to request such an excessive order period, we say is incorrect.

PN222

He certainly has not been able to advance any evidence to prove these assertions. And that certainly, from what Mr Broanda is saying, this workplace has had a relatively harmonious history in relation to industrial disputation. Once again, Commissioner, we urge you to use your discretion and not issue orders in this matter. We say that this is an isolated incident at this workplace, we say that it is confined to a specific issue and that if orders are - if you are inclined to issue orders, we once again respectfully seek the Commission to very seriously consider a much shorter period of time for which the term of orders would operate. And that obviously, the orders would be confined solely to the industrial action that is currently happening. May it please the Commission.

PN223

THE COMMISSIONER: Thanks, Ms Allen. Mr Pratt?

PN224

MR PRATT: Thank you, Commissioner. Just a couple of points. I don't know if anyone has mentioned it but clearly there is no bargaining period in place. We have an agreement in term. There is no way that the action could be termed protected industrial action. It is a question of whether or not it is legitimate or illegitimate industrial action as I gleaned from my friend's comments. Our submission, as you have already had, is that it is clearly illegitimate industrial action. It was taken at a moment's notice on the news that our member would not acquiesce to the suggestion that they ought to bend things and change things that they are contractually bound not to through their client, or the other contractual party, Alcan.

PN225

The question of authorisation was also brought to the attention just then by my friend, Mr Broanda. Can I state very clearly that nothing I have said today ought be inferred as any authorisation in any shape or form. The company has not authorised employees. It has simply stated that those who attend the rally will not be paid their overtime or their PIP. It has neither sought to restrict people attending the rally and it has certainly not authorised the attendance or the absence. If it had authorised the absence then arguably we would not be here. It would not be an issue. We would not be seeking orders because we would be entirely at peace and able to accommodate the absence of the workers that is being sought. We cannot. We have communicated that we cannot accommodate the absence.

PN226

Mr Kember's statement very clearly states, and this is unchallenged, that for those not attending the rally at clause 4 sub (b), quote:

PN227

For those not attending the rally on 30 June 2005, work was available.

PN228

End quote. There is certainly no, and has been no, authorisation for the absence. Commissioner, I, in closing, come back to the assertions from the bar table about the demeanour of Mr Kember at this morning's meeting. It is irrelevant to these proceedings and the reason is this, that there is absolutely no evidence of such an allegation made from the bar table as to Mr Kember's demeanour at this morning's meeting. It is simply nothing more than smoke and mirrors and in our submission, the lot of it ought to be disregarded. What is before you is a situation where workers have sought to take leave of their post, they have been told, no. If they do, rather, they will be forfeiting a payment which might otherwise be due to them.

PN229

They have, on receiving that news this morning, withdrawn their labour for 48 hours. We are in a position to communicate orders for them to return to work if the Commission is minded to grant them. We are in a position to submit to you that the orders sought do nothing more than enshrine the spirit of the agreement that the parties have entered into and is currently in term until 20 December this year. I have nothing further.

PN230

THE COMMISSIONER: Good. Thank you, Mr Pratt. Thank you for your submissions in relation to this matter. By way of decision, it appears to the Commission that consistent with section 127(1) of the Act that industrial action is happening. It appears on the evidence before the Commission that this industrial action has been happening since this morning at approximately 7.30 am also and is likely to continue to happen for a period of 48 hours. That is the industrial action that the Commission is dealing with in these circumstances. It is distinguishable from other matters and other types of industrial action that have been brought to its attention today, and particularly the Commission also notes that the Commission is here dealing with the employees taking industrial action meaning some 39 employees from the application and the cross reference to the statements sworn to today by Mr Kember.

PN231

The Commission is also satisfied that for the purposes of the jurisdictional preconditions to the exercise of its discretion under section 127 of the Act that the parties in this agreement are indeed bound by, in this case, a certified agreement pursuant to section 127(1)(c) of the Act. That being the United KG Pty Ltd Gove Services Certified Agreement 2003. The Commission is also satisfied for the purposes of section 127(2)(c) of the Act that an appropriate organisation has made the application. So having satisfied the jurisdictional preconditions for the purpose of the exercise of discretion vested in the Commission at 627(3) of the Act, the Commission turns to the issue of the discretionary consideration itself as to whether or not to make an order. The Commission is of the view that it should make an order.

PN232

The Commission is of the view that the industrial action that has been taken today for a 48 hour period by some 39 employees who are members of the AMWU and the AWU or eligible to be so members is for a period of 48 hours as a response to the statements made by the employer this morning in relation to the
non-availability of wages and other conditions as a consequence of what appears to be an unauthorised absence which is to commence tomorrow. In any respect, the Commission's view is that it is focussed on the action, that is the industrial action, which commenced this morning for a stated period of 48 hours. In the Commission's view in addition to that, the Commission is of the view that the action, that is the industrial action, that has taken place is industrial action that warrants an appropriate sanction in relation to an order, particularly for reasons that it is in flagrant disregard to the disputes resolution procedure at clause 23.2 of the agreement. And the Commission is of the view that section 127 of the Act should serve to maintain the agreement in respect of dispute resolution clauses.

PN233

That said, the Commission must now turn to the issue of the duration of the order. The duration of the order that has been sought is effectively for a period of some six months. The Commission is aware that the Commission in other circumstances has provided for extended orders of extended duration but the Commission is also aware that those extended orders have been - the extended duration of those orders has been appropriate in relation to their particular circumstances. That is, it has been demonstrated to the Commission's satisfaction in such instances that extended orders are warranted. The Commission has nothing before in its view that warrants an extended order. For purposes of future applications, the Commission notes that should an order for an extended duration be sought, the Commission would need to be satisfied of the history, of the detail of the history and the alleged pattern of conduct which warrants an order of extended duration.

PN234

To that end, the Commission would be expected to be taken to particular incidents to have evidence brought before it in relation to those incidents and, or have brought before it relevant decisions of the Commission which go to the conduct of the particular parties in prior circumstances such that it can draw a conclusion that would satisfy it that an order of extended duration is necessary. In the circumstances of today's application, there is nothing before the Commission that would warrant an order of extended application. That said, the Commission is nonetheless satisfied that an order is required. The Commission's attention as previously stated is on the circumstances of this particular dispute that is before it. In the Commission's view, the parameters of this particular dispute are confined. It does not have, in the Commission's view, any linkage with prior or any prospective conduct about which the Commission can be confident may come to pass in the event the order was not of an extended duration.

PN235

On that basis, the Commission is of the view that the particular circumstances only that are before it, require its attention for purposes of the application of an order. In this regard, the Commission having weighed the circumstances of the issue is of the view that an order of only 72 hours duration should issue and the order should come into effect from 5 pm this evening. That said, can I make it clear to either party that they are at liberty to apply again in relation to this application, that is in relation to the unions for the purposes of the curtailment of this order in the event circumstances arise that demonstrate that an order of the duration sought is no longer required. Otherwise, or equally so, rather, the applicant is at liberty to reapply to extend the duration of the order should evidence come to pass in the coming period of time that the conduct that has been complained of demonstrates, on the basis of new evidence, that an order of extended duration is necessary.

PN236

On that basis, are there any - I should also add that the discussion we had some time ago as to the amendment to the draft order stands and I will include a new subclause 4(c) to clause 4 of the draft order headed, Service of Order. That new subclause (c) will read, following on from subclause (b), end of the company serving on the employees a copy of this order. As I said earlier, this order will come into effect today at 5 pm and will be in operation for a period of 72 hours. I will issue this order as promptly as I can and within the next 10 minutes. Thanks very much everyone. We are adjourned.

<ADJOURNED INDEFINITELY [4.06PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOSHUA ROSS KEMBER, AFFIRMED PN49
EXAMINATION-IN-CHIEF BY MR PRATT PN49
EXHIBIT #A1 STATEMENT BY MR JOSHUA ROSS KEMBER PN89
CROSS-EXAMINATION BY MS ALLEN PN91
THE WITNESS WITHDREW PN111