C2005/1304, Transcript of Proceedings [2005] AIRCTrans 194 (28 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10061

COMMISSIONER BLAIR

C2005/1304

s.166a - restriction on certain actions in tort

Electrolux Home Products Pty Ltd
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2005/1304)
BHP Coated Steel Australia Westernport Certified Agreement 2002/2004

MELBOURNE

9.39AM, SATURDAY 15 JANUARY 2005

Adjourned sine die

PN1

MR R MANUEL: I seek leave to appear as counsel for Electrolux, together with my learned friend MS D OBERDAN and MS C BAKER from Electrolux. Could I also apologise for my wardrobe accident this morning, sir. I did intend wearing a suit but it had a minor problem.

PN2

MR G BORENSTEIN: I appear on behalf of the CEPU, together with MR S McKAY, who is an employee of the CEPU. I won't object to leave being given.

PN3

THE COMMISSIONER: Thanks, Mr Borenstein.

PN4

MR MANUEL: Commissioner, I think I can state this position from Electrolux's point of view fairly simply. That is not to say that this is a simple dispute. You may be aware, in fact, I am sure you are from that pile of documents to your right hand side, that there are - - -

PN5

THE COMMISSIONER: Most of that is I think SDP Acton's, so I know of the dispute because I have been dealing with the contractor side of the dispute.

PN6

MR MANUEL: There was a hearing yesterday before SDP Acton. It is fair to say that - and I mean no criticism to any party, but not as much progress is made as my client having hoped or expected. There was, in fact, conciliation very early on in the piece which doesn't appear to have generated a resolution, and as a result my client feels constrained to defend its position on its own because obviously it doesn't have a huge amount of control over the actual dispute itself. The dispute goes back, as I understand, to an enterprise bargaining dispute that was initially involving the CEPU, the AWU and the AMWU. For reasons which I don't think are particularly important, the dispute now seems to be focused between BlueScope and the CEPU.

PN7

And there have been something in the vicinity of 150 or so protected action notices, effectively rolling stoppages which have escalated over a number of months. As was described yesterday, the latest stoppages and threats of stoppages appear to be of 23 hours duration. The workers attend for a short period, have a stop work meeting and then leave the premises or vote to take a 23 hour stoppage. Now, my client is no orphan when it says that it has been severely affected by this, but nevertheless from its perspective what it has is a situation where it has 700 workers at the cooking plant who are facing the prospect of being severely affected.

PN8

I should add that Electrolux are taking steps to try and avoid these problems. It is not possible to do so particularly effectively because of the difficulty obtaining steel in the current world market, and it seems to all be getting sucked into China. But, for instance, the other day Electrolux arranged - they found 20 tonnes of steel in Japan, flew it to Australia at a cost of $100,000, which means they are going to make a loss on producing the product from that shipment, but at least it keeps the factory ticking over. And they were obviously looking for those opportunities, but the fact is they are suffering significant financial loss. If they keep their employees at work they suffer greater financial loss. If they stand their employees down then not only do the employees suffer significant loss, particularly after the Christmas break because Electrolux goes into close down, but also Electrolux runs the risk of alienating its marketplace. And it is a whitegoods manufacturer, and you don't need to be a rocket scientist, all you have to have done is walked into a Good Guys store or Radio Rentals or one of those to know that they want dozens. They are, of course, the superior producer of product.

PN9

THE COMMISSIONER: It goes without saying.

PN10

MR MANUEL: Of course. But it doesn't matter, because if you don't provide your product to the builder the day that he or she wants to hand it over to avoid it being stolen, they go to another producer. So that is the rationale behind this application. In terms of 166A, despite the fact that some people have tried to put a few glosses on it. It is actually pretty straight forward. It is a question of identifying, is there a party who wants to bring an action in tort - sorry, perhaps if I come back a step. The fundamental of 166A is that it is a defence in any proceeding in tort, so in any common law court to say that a person didn't get a 166A certificate when they should have.

PN11

It is not actually a matter for the Commission to determine whether a tort has been committed or even if there is a likelihood of a tort. I will come back to that shortly. But basically it is a shield, not a weapon. It is something that when someone is sued in tort they can then plead their defence. This party had to get a certificate and they failed to do so. Now, you have a situation whereby the notice under 166A makes it clear that Electrolux intends or wishes to take action in tort, that is one step. The second step is, well, what is the conduct? Now, the conduct can be made up of two things. One is, it can be made up of actual industrial action, the second thing it can be made up of is a threat to take industrial action.

PN12

Now, I appreciate that that is a bit of a double whammy if you happen to get your notices wrong. But we say that there is, in fact, authority on them, and I apologise that I don't have it, but there is a full Commission authority to the effect that if you make a threat, a threat is conduct and, with respect, in common language that makes sense. And so the issuing of the notice, for instance, to take action in a week's time, there is conduct occurring at the point of the issuing of the threat unless it is subsequently withdrawn. There is then further actual, if you like, physical conduct at the time that the industrial action occurred.

PN13

So for example, in these matters, in the matters before Senior Deputy President Acton - I should as an aside note, Commissioner, you are entitled under section 110 to have regard to those matters. I think they are largely uncontroversial because they were put in, they are evidence that has been put before the Commission by either BlueScope or the CEPU after being tested. But the point is that where, for instance, the CEPU threatened to take industrial action but then didn't - and that happened as I understand on a number of occasions - the threat was still conduct.

PN14

All we need to establish we say, Commissioner, is that there is conduct for the period of our notice. In other words we accept you can't get a retrospective 166A notice. We could only get it from the time of filing, so from Friday. What we say is that the evidence that is already before the Commission shows that there are notices being acted upon, notices being proposed to act upon. And I wonder if I might at this stage hand you up the last four notices, and they have already been tendered before her Honour, but I just wondered for ease of handling whether that might be simpler, and I wonder whether it might be simpler if we hand them all up at once.

PN15

THE COMMISSIONER: That will be fine. You're tendering those are you, Mr Manuel?

PN16

MR MANUEL: Yes, Commissioner, I seek to.

EXHIBIT #ELECTROLUX1 FOUR NOTICES

PN17

MR MANUEL: You will note just by way of interest that on two of them they have already been marked for tender before her Honour, SDP Acton.

PN18

THE COMMISSIONER: Right.

PN19

MR MANUEL: The only reason I go through these is, they could all of them be summarised in the same manner. I won't go through them one by one because they are really similar notices with different dates and times, but you can see they were issued by the CEPU on their letterhead, they were issued to the proper officer BlueScope Steel, they were signed by Mr McCallum, the acting branch secretary, and you will see that they were also copied to the Australian Industrial Relations Commission. Now, what we say is that each of those evidences conduct, and the conducts spans at least from 7 January onwards.

PN20

Now, my understanding is that the later notices have not physically been acted upon as yet because, of course, the time hasn't arrived, and so we say therefore that you have the conduct both in the actual industrial action being taken and in the threat to take industrial action subsequently. You will see that the conduct does not end before 72 hours from issuing of our notice. Now, in terms of the rest of the matter, it also says in contemplation of - section 166A refers to it being in contemplation of furtherance of claims, and I would note to you that the notice itself refers to a bargaining period, it refers to using the auspices of the Workplace Relations Act in terms of protected action, and to use those you must, in fact, be intending to pursue a claim. You can't use it for any other purpose.

PN21

So again having regard to those notices and the actual legislation, that is a claim. In terms of whether it is an industrial dispute, in Victoria that is probably a lot simpler question to answer as there is no need for interstateness. But what we have here clearly is a dispute between the CEPU and its members employed at BlueScope and BlueScope over terms and conditions of employment to apply to those persons. We would say that with the Electrolux decision that is still a matter pertaining, therefore industrial dispute.

PN22

In terms of the issue of protected action the point we were making before, Commissioner, was that protected action is a matter to be determined finally by a competent court. The Commission is not in a position, for obvious reasons, to do so. It is not, under fairness to a 166A certificate, to say we are taking protected action. It is a defence to an action, whether it be in the Supreme Court or in the Federal Court, to say our action was protected, that is the way it can be used as a shield. It can't be used as, if you like, an offensive weapon in the Commission. That having been said, could I just draw your attention to the first notice that we handed up, which was 7 January 2005.

PN23

THE COMMISSIONER: Can I just clarify something with you. You are saying, for the purposes of clarity if you like, that there is protected industrial action?

PN24

MR MANUEL: No.

PN25

THE COMMISSIONER: You are saying it is not protected?

PN26

MR MANUEL: We are saying for the purpose of this application it doesn't matter. We fully accept - - -

PN27

THE COMMISSIONER: No. The only reason I am clarifying that is because the application to the Commission does actually refer to unprotected action.

PN28

MR MANUEL: Yes, that is our position, we say it is unprotected. We fully accept the CEPU says it is protected, and all we're saying is it is not an argument that needs to be dealt with today.

PN29

THE COMMISSIONER: Needs to be dealt with here.

PN30

MR MANUEL: Having said that, could I just make two observations about it in case the Commissioner would like to be further informed on the issue. Firstly, the notices that we have handed up, if you could just look at any one, perhaps 7 January 2005, the first one, you will see under the nature of protected action it says:

PN31

A stoppage of the performance of work between -

PN32

And it sets out those times:

PN33

- and/or another stoppage.

PN34

The fact is that a 170MI(5) notice must give the employer certainty as to the nature of the industrial action. The Federal Court has made that very clear in David's that the purpose of these notices is to give the employer the ability to defend itself by knowing what action it is facing and then making the appropriate arrangements. If you took this to its logical conclusion you could list out hundreds of permutations of possible industrial action and pluck one out of the ether when you decided to actually take the industrial action and say, well, that is our protected action. And what we're going to be saying is, well, that just can't be right, it has got to be unprotected. There are other arguments, but I don't need to ventilate them before your Honour.

PN35

THE COMMISSIONER: No.

PN36

MR MANUEL: I should note, although we weren't a party to it, I understand there was a decision of the Federal Court of Heerey J. As I understand it, BlueScope has issued proceedings that notices previous to this were invalid for different reasons to the ones I have just put before you. They were unsuccessful, and I think it is fair to say that his Honour - well, I won't use the word scathing, but was less than excited by the concept of the case to start with. However, the point we would make is (1) it is difficult for us to be estopped by the conduct of others, but also that his Honour's judgment was interlocutory, and so insofar as he expressed doubt as to whether or not the action was unprotected, doubt is not a final binding judgment that would be necessarily considered by the Commission in its current position. In terms of the timing of the notice, I think it is recorded on the Commission files as 3 pm on a Friday as having been filed.

PN37

MR MANUEL: Sorry, your Honour?

PN38

THE COMMISSIONER: 3.40.

PN39

MR MANUEL: 3.40, my apologies.

PN40

THE COMMISSIONER: Mr Manuel, I am very flattered to be called your Honour, but I don't get the salary and I don't get the status, so just call me Commissioner, that will be fine thanks.

PN41

MR MANUEL: Yes. It is a habit. The timing then would be for 72 hours, 3.40 on Monday. It is open to you to issue a certificate before that time. Although we think there are some factors in that we don't pursue the earlier issue of a certificate. We are comfortable with the 72 hour period being the period of consideration for the Commission. Also, Commissioner, there is one other issue under 166A that I think needs to be ventilated, but it can be done reasonably promptly. Under 166A(5) you will see it says:

PN42

If such a notice is given the Commission must take immediate steps to try or continue to try by the exercise of this Act to stop the conduct.

PN43

Now, I would suggest - and this is certainly no reflection upon my learned friends, but a conference between Electrolux and the CEPU just doesn't take us anywhere. As I understand it, Senior Deputy President Acton yesterday conducted a conference at the request of the CEPU for an hour or so in the morning, and as the matter hearing that was before her then proceeded, one is to reasonably assume that if it did make progress the progress wasn't sufficient to bring the conduct to an end. We would suggest that it would be appropriate for the Commission to either make a finding that there was no value in it conciliating in all of the circumstances of the matter before her Honour or, alternatively, perhaps on Monday morning talking to her Honour, Senior Deputy President Acton, so we would say that is steps, and discussing the matter with her Honour with the intention of forming a view as to what the appropriate course will be.

PN44

Now, it might be that her Honour says that you should chair a conference of the parties, perhaps get a different perspective on it, and maybe her Honour wishes to do it as well, but we say that that step needs to be recognised even though negotiations between Electrolux and the CEPU seem too distant from the dispute to make any difference. Commissioner, if there is anything further?

PN45

THE COMMISSIONER: No, thank you.

PN46

MR MANUEL: Thank you.

PN47

THE COMMISSIONER: Yes, Mr Borenstein?

PN48

MR BORENSTEIN: Thank you, your Honour. It must be a Saturday morning thing.

PN49

THE COMMISSIONER: I wasn't aware that SDPs were confined to only sitting Saturday mornings.

PN50

MR BORENSTEIN: We are very concerned by this application. It has been brought under very strange circumstances in that, firstly, the ground in the notice to bring the tort action, so their intended notice of action of tort says we are bringing this action in tort because it's unprotected industrial action because there is actually an agreement between the AWU and CEPU, and that is stated in the notice of intention to bring an action in tort. Yet now we find that their submissions have completely changed, and that is something we submit that the Commission should seriously take into account in assessing the bona fides of Electrolux in its intention to bring an action in tort, because it seems like it doesn't care what its legal basis is, it is just scrambling for anything. And really what is the real concern here is it is suffering damage, and we don't dispute that, but that is not enough to bring an action in tort.

PN51

And there is - I think it is The Age decision, a Full Bench decision on section 166A, which says that there is a requirement that the person might reasonably have an intention to bring an action in tort. So there is a bit of an objective test there, and the Commission isn't just to say, well, someone shouldn't be able to get a 166A certificate where someone has followed all the requirements of the Act, is taking protected industrial action, and anyone who is suffering a loss can come along and say I want a 166A certificate, and I am going off and, you know, I am going to go off to the courts, which almost acts like a coercement for the CEPU to make an agreement. That seems to be what we see the intention of Electrolux is, is to get this 166A certificate and wave it over the CEPU, saying we're going to drag you through the courts, make you pay legal costs and incur unnecessary legal expenses in order to put extra pressure on you at a time when you are being - when the actual employer, the direct body is doing all it can to sue the union, and has failed, and they are just trying to add another brick to the wall to try and crush the CEPU, irrespective of the merits of their cases, which are non existent.

PN52

And I will hand up a decision of his Honour, Heerey J, because it is quite appropriate, and I think that could easily reflect what Electrolux are doing here. Now, Electrolux have come along here trying to make an argument that our action is unprotected. Now, if our action was unprotected I think the Commission would be satisfied that the actual employer, the direct party to the dispute, BlueScope Steel, would be making whatever arguments they can to say this action is unprotected. And as recently as 7 January they attempted to do so, and again they were represented by a huge legal team, including Dr Jessup QC, who I think the Commission is aware has extensive knowledge of the industrial areas and technicalities as well, as well as Mr Mueller, as well as three lawyers from Blake, Dawson and Waldron, including Mr Amendola, who is also an experienced industrial practitioner.

PN53

They put all their arguments they could in front of Heerey J in the Federal Court on, I think it was 5 or 6 January, and they were unable to prove, despite proving that there was significant loss, which we can't dispute, but despite proving that Heerey J said that there was no serious issue. They could not even prove an arguable case that the action was unprotected action. And they have not made any application to the court since that, and we say that really what Electrolux has done here is saying, well, we're suffering loss, we want to add the pressure to the CEPU and we will do that by getting a 166A certificate and make them have to pay unnecessary legal expenses through the Supreme Court, all at a time when there is a section 170MW proceedings, one brought at short notice, which I am involved in, and they know that if they start, you know, putting different legal actions throughout the courts, that the resources of the union will be drained. And we say that is something that the Commission should really take into account in this matter.

PN54

THE COMMISSIONER: What do you say about the submission, Mr Manuel, that they don't press the issuing of a 166A certificate today, that it may be appropriate that in between now and 3.40 pm on Monday that the Commission as currently constituted, at least possibly confer with SDP Acton, to see whether or not it is possible that either we both agree that I should try and conduct a conciliation conference with BlueScope Steel direct and the CEPU, or whether she may wish to conduct another conference, or I think there was a suggestion that both conduct a conference, which is unusual but it has been done. What do you say about that?

PN55

MR BORENSTEIN: We would not be averse to another conference where we have, I think I can safely put on the record that we have negotiated and reduced our claims compared with BlueScope Steel, which has basically given us a brick wall. But this is a complicated dispute and mainly in the third party, ie. Silcar, to actually also be involved in negotiations as they are indirectly involved in an over arching dispute which may be able to solve all issues. And we would possibly think that a compulsory conference with all three parties may be of value as one avenue. We are happy to negotiate the terms of BSL agreement with BSL direct, and that is fine, that is what we are taking industrial action over. But Silcar is a relevant - BlueScope is trying to outsource our employees to Silcar, so they also I suppose are the future employer and BSL, they are related to another industrial dispute which may also be able to be solved at the same time.

PN56

So if there was a conference we would probably prefer to have Silcar there as well just so, you know, all matters that are in the environment will be discussed. But in respect to the industrial action that is occurring we are seeking an agreement from BSL, we are seeking better terms and conditions and, you know, we're happy to keep negotiating with BSL over those terms and conditions. We are happy to have this matter adjourned to Monday if that is the position, and we can have it re-listed for Monday to be finished off. Should we explore that?

PN57

THE COMMISSIONER: All right.

PN58

MR MANUEL: We are going to be here. On Monday we are back in for the section 170LW, and Electrolux is intervening in the proceedings as well, so we are going to physically be here. I would like to complete the submissions and the evidence today. Obviously if there is anything else that the party would like to call on before 3.40 on Monday, then we certainly wouldn't stand in the way of that, or if there is some role that we can possibly have to play in the resolution of the matter we wouldn't stand in the way of that either. It is just a little difficult to see right at the moment.

PN59

THE COMMISSIONER: Right. What other material do you have to rely upon?

PN60

MR MANUEL: The only other issue I need to put is - I have already addressed you on the issue of the tort. What I would just note very briefly is, interfering with contractual relations requires a contract. There is a contract here between BlueScope and Electrolux to supply steel. It requires knowledge of the person interfering with the contract. We say there is evidence of that knowledge. There is knowledge of the harm being caused as a consequence, and there interference is the industrial action by the CEPU against - or not against, in respect of BlueScope, and so you have all the features plus you have the extra feature we say, if it is being done by unprotected action, there is another double whammy, and that double whammy is that it becomes being done by unlawful means, in which case the CEPU loses a number of defences of justification and the like.

PN61

So I am saying there is a clear basis just on the papers before you that there is, in fact, a tort being committed. The only other thing I would say, no matter how flash BlueScope's lawyers are, and we are just little old lawyers from Adelaide, we can't be bound by what they do. I am not saying they did the right thing or the wrong thing, I am just saying that it wasn't us. May it please the Commission.

PN62

THE COMMISSIONER: Thank you. Yes, Mr Borenstein?

PN63

MR BORENSTEIN: We say that there is no action in tort and there can be no reasonable subjective intention to bring an action in tort if the action is protected industrial action, and we say the Commission can determine that here in this hearing today. Now, the grounds put by my friend today are not in this application, and we say the Commission should not rely on it as a primary argument. No reason has been brought to explain why that it, and again we say that goes to why they are bringing this notice - certificate, so I suggest that they are just bringing it to put extra pressure on the union. We say in a sense that is quite an abusive process.

PN64

Now, as my friend said, he did intervene in the proceeding before Senior Deputy President Acton which involves the termination of a bargaining period. And to terminate a bargaining period it is obvious that a bargaining period must be in place.
Now, my friend has intervened supporting the termination of the bargaining period. Now, you will note in their application the only ground they say the industrial action is unprotected is because there is already an agreement in place. It says it on page 1 of the fourth sort of hyphen:

PN65

Industrial action is not protected as the agreement has been made with the CEPU and Australian Workers' Union.

PN66

Now, if that was the case there would be no bargaining period and if my friend has had that view they should have made a preliminary point in the application for BSL and said look, we are intervening here, but there is no bargaining period because the period has ended because there is an agreement between the parties, but yet they didn't do that. They are trying to argue one thing in accordance with the Act and a different thing before the Commission here, which is further evidence of the abuse of process that has been conducted by my friends.

PN67

So obviously now they have tried to change their argument at the last minute and because the notice says and/or there is not sufficient certainty. Well, no action has been brought, of course, in respect of that argument, and we say that it just cannot stand. You will note the Full Court in David said that you could do, which was referred to by my friend, said you could have a statement that just said rolling stoppages in a certain area, that was sufficient certainty. I think this notice gives more certainty than that. BlueScope know what is the potential action we can take from that day and they can prepare for it and that is all that is required by the Act.

PN68

Now, what my friends are doing is exactly what Heerey J, I suppose as my friend said, Justice Heerey was quite, I suppose, scathing. I would accept that statement and I suppose he didn't reprimand BSL for their pedantic formalism. In the last paragraph you will see he characterises BlueScope's conduct in trying to argue that our action was unprotected as an exercise in pedantic formalism. It is the last sentence and he says it should not be encouraged in this jurisdiction, and that is Federal Court authority and we submit that the Commission should not encourage the pedantic formalism which my friends are now trying to argue as a reason why they should be allowed to go to Supreme Court and cause the CEPU to incur all kinds of legal expenses at a time when the employer is not doing that but is rather trying to terminate the bargaining period and that is where the union's resources are at the moment, and we see this as a strategic move, as I have said previously, to divert the attention of the union.

PN69

Now, we were in court with Electrolux - we were in the Commission with Electrolux yesterday. No mention of this application was made to us. No mention of the application was made to SDP Acton who was conducting the matter and we say that it's further evidence of the strategic play that Electrolux are doing, we say, most likely in conjunction with BSL, although we have no evidence, but we say it should be inferred. As my friend has made no submissions about the fact that there is actually an agreement within CEPU and AWU, I assume that that is withdrawn.

PN70

MR MANUEL: No, it's not. What I said to the Commission was, the and/or argument was the most recent example I might find. We only saw those notices yesterday.

PN71

THE COMMISSIONER: Right.

PN72

MR MANUEL: But that the other argument is still the other arguments. There are more than one that are still pursued. They are just not necessary for this hearing.

PN73

THE COMMISSIONER: Right.

PN74

MR BORENSTEIN: Okay. So I suppose the position of Electrolux then is that they haven't actually decided how they are going to run their case then or the basis, but all they want to be able to do is be able to bring it and then decide, you know, try and think up some arguments after that, and we say that just goes against the bona fides of the - I will address that agreement argument because it is the only one that they have raised in their application. Firstly, they say that there is an agreement made between the CEPU and the Australian Worker's Union. They don't provide any details, not details have been provided as of yet in their opening submissions.

PN75

We firstly say where is the agreement. We deny there is an agreement between the CEPU and BSL. We say where is the actual agreement and we - there is a decision of G & K O'Connor. It's a full bench with Meat Industry Union, dated
8 September 1999, print R8918. Now, I have only got one copy which I will hand up. But at paragraphs 7, 8 and 9 it makes clear that the requirements of the Act as it currently stands, there must be an agreement in writing capable of certification before it can be an agreement. Now, I don't know what evidence or whatever my friends are going to rely upon, but there is no evidence of any agreement in writing been agreed to by the CEPU.

PN76

That is the consistent with the position of BlueScope Steel who took us to the Federal Court on 5 January and raised no issue, which I am sure they would have had they thought it was in any way arguable, they raised no issue that there was actually an agreement already existing between the CEPU and the AWU - sorry the CEPU and BSL. If my friends are saying that Dr Jessup and Mr Amendola would not have thought of such an argument I think that the union were highly ignorant, I think, with respect, and that is because there is no such agreement and we have not seen such an agreement and no such agreement has been put to our members at BSL to vote upon.

PN77

No agreements have sought to be certified and in effect of the CEPU or its members and on that basis we just say that there cannot be a reasonable intention to bring an action in tort in this matter and we say the Commission should bar such an action because it will put the CEPU to a huge expense at a time where the direct party is not bringing such an action but is bringing a different action to the Commission and in a situation, we say, it is apparent that this is a clear abuse of process. We say that Heerey J has held the industrial action is protected and therefore there can be no action in tort, which if the industrial action is protected, which we say it has been held, then I don't think my friend could contravene the fact that there is no action in tort. And he has brought no authority at all that is even arguable that our notice that we have filed recently causes it to be unprotected. All they seem to do is to be able to threaten us with going to the Supreme Court, or the Federal Court. That's all they come here to do. They don't come here to - we say there is no legal basis on which they can do so and they just want to have that threat and put us to the unnecessary costs. Unless the Commission has any questions?

PN78

THE COMMISSIONER: No, thank you. Yes, Mr Manuel.

PN79

MR MANUEL: I am sorry, Commissioner, I realise this is going to and fro. The first point to make is the decision of Heerey J is an interlocutory decision. It isn't binding. He can't and didn't make a finding that it was protected action because he is not in a position to. That's the first point to deal with. The second thing my learned friend seeks is to effectively, some sort of exercise of discretion by the Commission in respect of 166A and there isn't such a discretion. The third thing my friend keeps saying, the words abuse of process, but if you want to look at, apart from bandying the phrase around, if you look at this matter the evidence is that Electrolux is losing money hand over fist.

PN80

My learned friend acknowledges that significant damage is being caused. To then say that my client is not serious about pursuing its losses if it can, just didn't sit with the merits of the matter and it really just goes no further than a hyperbole. In terms of the claim by my learned friend that the matter was not in the matter of the tort and its reasons was not in the notice, the fact is the last two paragraphs, and they were understandably brief, say:

PN81

The CEPU is aware of the contract between BlueScope and Electrolux and that BlueScope customarily provides steel to Electrolux.

PN82

That is the basis of the tort of interfering contractual relations. And:

PN83

The CEPU has interfered in the contractual relations between BlueScope and Electrolux by unlawful means.

PN84

Now, that actually is a phrase which is used within virtually all of the decisions in respect of the tort of interfering with contractual relations, or some variation of that form, and so clearly, at least in legal terms, is well set out that that's what we are after. You will note that there is no pleading of conspiracy, for instance, which would typically be the other tort that would be tacked on if you like in this matter. It is only the interference of the contractual relations. I have nothing further, Commissioner.

PN85

THE COMMISSIONER: All right, thank you. What the Commission will do is adjourn for about 10 or 15 minutes. It takes the view that it is possibly wise to make contact with SDP Acton, if I can, to see what may be the appropriate course Monday to try and deal with this particular matter, not only the application of Electrolux under 166A but the total issue. As they say, let us look at a holistic approach, which I am not quite sure what that means, but anyway. We will adjourn for 10 or 15 minutes.

<SHORT ADJOURNMENT [10.22AM]
<RESUMED [10.37AM]

PN86

THE COMMISSIONER: All right. Thanks for that opportunity. I have had a brief discussion with her Honour, SDP Acton. As I understand it, her Honour the proceedings are to recommence on Monday, the 17th at 11 am in regards to the 170MW application. In discussing the matter with her Honour it has been the position formed by myself is that I will adjourn this matter to allow those proceedings to commence again at 11 am on the 17th in a manner determined by her Honour to be the most appropriate manner. If at 3.40 pm I am advised that the matter has not resolved and the application under 166A is still on foot, then the Commission believes then it is obliged to issue such a certificate and it will do so accordingly. But hopefully when the matter commences at 11 am a course might be decided that may assist in resolving the matter. That is the Commission's position at this stage. The Commission will stand adjourned.

<ADJOURNED INDEFINITLEY [10.38AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ELECTROLUX1 FOUR NOTICES PN16