C2004/7013, Transcript of Proceedings [2005] AIRCTrans 237 (3 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10155

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/7013

s.127(2) - appln to stop or prevent industrial action

Thiess Pty Ltd
and
Construction, Forestry, Mining and Energy Union Construction, Forestry, Mining and Energy Union-Construction and General Division, Victorian Building Unions Divisional Branch
(C2004/7013)
National Building and Construction Industry Award 2000

MELBOURNE

10.15AM, FRIDAY, 21 JANUARY 2005

Continued from 21/12/2004

PN479

THE SENIOR DEPUTY PRESIDENT: There are no changes to the appearances are there? On the last occasion on 21 December I made an interim order that expires at 4 pm today unless there is a further order. What are you pursuing, Mr Molnar?

PN480

MR C MOLNAR: We are pursuing a further order, a permanent order through to the end of March of this year which is the project completion date. You recall, sir, last time we were here you issued the interim order and you also made directions relating to the filing of further material. We provided a witness statement for a Peter Thompson, who is the project superintendent in accordance with those directions, and I will just note that we have received no other material at all from the CFMEU in relation to this.

PN481

THE SENIOR DEPUTY PRESIDENT: Nor have I.

PN482

MR MOLNAR: Since we filed this file, Mr Thompson's witness statement, that was on 6 January, there have been a number of, sort of, events since then and it has been necessary simply to update it. I took instructions from Mr Thompson this morning and have provided Mr Maddison a copy of that updated witness statement and perhaps I can just hand that up to you sir.

PN483

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. So I can ignore the statement that was sent to me by fax?

PN484

MR MOLNAR: Correct, sir. And if I could really just take you to page 5 of that witness statement. I have marked the revisions so it is quite clear. How we have updated it. You will see that we have updated the affect on the Basslink project and you will also see that under part 7 of the witness statement, that we have provided some further material in relation to events that have occurred since we complied with Commission's directions. So we will press for a permanent junction on the basis that action is, well, there is for at least industrial action that is threatened or probable, and we do so on the basis of the breach of the interim order.

PN485

We do so also on the basis of the history of industrial action on this site which has been outlined in the evidence of Mr Gosling, and we do so on the basis that if the project is expiring at the end of March of this year, of course we would be, as we have in the past, be making direct Thiess employees redundant, or their positions to be redundant if their employment to be terminated and certainly the union is still pressing its claim for a weeks pay in addition to the week that they are given for notice.

PN486

THE SENIOR DEPUTY PRESIDENT: Where do I find the evidence of that? Is that in the new statement, is it, or?

PN487

MR MOLNAR: It is in the new statement. As far as we are concerned that claim is still there. It has never been withdrawn and I think we can assume that the union, based on that, will press it. We have obviously got redundancies coming up and we ought to assume that it is continuing. So the evidence in relation to the breach of interim order is contained in the witness statement of Peter Thompson and obviously he will be providing evidence and I would be suggesting in those terms that Mr Thompson will be our first witness. Mr Gosling is still in the witness box until available for cross examination by Mr Maddison.

PN488

THE SENIOR DEPUTY PRESIDENT: So, Mr Maddison, do you want to say anything?

PN489

MR MADDISON: Your Honour, just two things and we did receive the first statement of Mr Thompson which was signed I think on 6 January and this morning, Mr Molnar has given me the amended statement which has two new matters which are said to have occurred on Monday 17 January and Tuesday 18 January and are now, I did not have notice of these two matters. I did once receiving this, I just called Mr Rust to seek some instructions in relation to those - - -

PN490

THE SENIOR DEPUTY PRESIDENT: It is odd that he is not here isn't it, to instruct you?

PN491

MR MADDISON: Sorry, your Honour?

PN492

THE SENIOR DEPUTY PRESIDENT: Isn't it odd that he is not here to instruct you today?

PN493

MR MADDISON: On the basis of the material I received, I didn't believe there was any need to. I had those instructions sufficient to be able to cross examine.

PN494

THE SENIOR DEPUTY PRESIDENT: Yes.

PN495

MR MADDISON: If I had been put on notice that there was two further matters, then it may well have been that I would have required Mr Rust here. Now, I was not put on notice, your Honour, and I do seek to get instructions. They are matters of some weight. It is said that these two matters are a breach of your interim order and before coming here this morning, I had no notice of these matters.

PN496

THE SENIOR DEPUTY PRESIDENT: Mr Maddison, I am amazed that you didn't seek instructions from Mr Rust as to the current state of affairs as at today. You must have anticipated that the company would seek to update the evidence of Mr Thompson to bring it up to date.

PN497

MR MADDISON: No, I did not anticipate as such. Your Honour, if you recall when we were here last time - - -

PN498

THE SENIOR DEPUTY PRESIDENT: Mr Maddison, I know your advocacy skills, I am surprised, I must say, that an advocate of your talent did not anticipate that.

PN499

MR MADDISON: Your Honour, if you recall when we were here last time, we did make a number of adjournment applications based on this kind of matter. I would have thought that an advocate of Mr Molnar's experience, would have expected, if he did the same thing, that I would have made similar applications. Now, the fact that I wasn't put on notice, left me to believe that there would be nothing further.

PN500

THE SENIOR DEPUTY PRESIDENT: What is your application, Mr Maddison?

PN501

MR MADDISON: Well, I would at least like to get some instructions from Mr Rust.

PN502

THE SENIOR DEPUTY PRESIDENT: How long will it take?

PN503

MR MADDISON: Well, I spoke to him earlier this morning. I was able to get through to him straight away. I left a message for him about 10 minutes ago. I would like to be able to stand the matter down for 10 minutes, say, while I seek to get some instructions from Mr Rust.

PN504

THE SENIOR DEPUTY PRESIDENT: That is so that you can examine Mr Thompson? What about Mr Gosling? On the last occasion you said you were not prepared to cross examine Mr Gosling again. Now are you prepared to do that?

PN505

MR MADDISON: Yes, I indicated to Mr Molnar, your Honour, that I have some questions for Mr Gosling.

PN506

THE SENIOR DEPUTY PRESIDENT: Yes, well why don't we deal with Mr Gosling in the first place?

PN507

MR MADDISON: Certainly, your Honour.

PN508

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Gosling, go back into the witness box, please. I will have you resworn, I think.

<GRAHAM LESLEY GOSLING, RECALLED AND RESWORN [10.23 AM]

PN509

MR MADDISON: If you have just been resworn I will just ask him his - - -

PN510

THE SENIOR DEPUTY PRESIDENT: I'm sorry?

PN511

MR MADDISON: If he has just been resworn I will just ask him his name again, but I don't think that is necessary, sir.

PN512

THE SENIOR DEPUTY PRESIDENT: I don't think that is necessary.

<CROSS-EXAMINATION BY MR MADDISON [10.24 AM]

PN513

MR MADDISON: Mr Gosling, you are the Human Resources Manager for Thiess, is that correct?---I am.

PN514

And it is your responsibility, is it not, to oversee and part of your responsibility to resolve disputes as they arise between employees on your projects and the unions?--- ..... yes it is.

PN515

And it is not strange in your experience that there has been some disputes on the Basslink project?---I believe at this stage given the nature of the agreements that were entered into by the unions physical client which gave very generous provisions well in excess of industry standards in that project.

PN516

When I say disputes, Mr Gosling, they don't necessarily have to manifest themselves in industrial action, but disputes as in difference of itself
views?---I have gone a certain way to ..... domestic issues arising ..... doesn't necessarily end in dispute and in the definition of dispute.

PN517

Notwithstanding that, Mr Gosling, there has been a few issues on the site that you refer to in your affidavit?---Some of those issues in my affidavit related to matters external to the site which resulted in action on the site.

PN518

I will just take you very quickly to some of those matters, and you mention in paragraph 5, where you refer to as the Geraldton issue in May last year?---Yes.

PN519

As far as you are aware the Geraldton issue has been resolved?---It sits there unresolved, would have been my conclusion, that the CFMEU was still pursuing coverage of workers on that site. However, that has not been undertaken in the form of any industrial action but the basis of the dispute still exists.

PN520

In relation to the, referred to in paragraph 6, Mr Gosling, the contractor
issue?---That was resolved.

**** GRAHAM GOSLING XXN MR MADDISON
PN521

Sorry?---That dispute was resolved.

PN522

And further on in paragraph 6, you refer to the Errol Coll dispute.

PN523

THE SENIOR DEPUTY PRESIDENT: Where is that, Mr Maddison?

PN524

MR MADDISON: Sorry, your Honour. I think it is mentioned on 6.13. It is on page 8 of Mr Gosling's statement.

PN525

THE SENIOR DEPUTY PRESIDENT: Thank you?---As far as I am aware the union is no longer pursuing that, but certainly Mr Coll, from my last visit to site, is still very aggrieved and pressing it on his own behalf, if we should err in his favour, based on the materials provided in that section 127 application.

PN526

Apart from Mr Coll assuming what he believes his personal entitlements are, and you don't envisage further dispute with the union in relation to that matter?---No I don't.

PN527

Would it be fair to say, Mr Gosling, that the only matter that you foresee that there may be further industrial action about is the week's pay issue?---At this stage that is very much a live issue ,as I am advised, on the site, given that there are some 20 employees whose employment will be terminated on the job between now and March and the actions in relation to that claim are still live based on what has happened this week.

PN528

And that is the only issue in your view that at this present time may lead to further industrial action?---From the Basslink project, yes.

PN529

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

PN530

THE SENIOR DEPUTY PRESIDENT: Thank you. Any re-examination, Mr Molnar?

PN531

MR MOLNAR: No, sir.

PN532

THE SENIOR DEPUTY PRESIDENT: Mr Maddison, you seek 10 minutes to get instructions so that you can cross-examine Mr Thompson?

PN533

MR MADDISON: Yes, I would seek that so I can attempt to contact Mr Rust again, your Honour.

**** GRAHAM GOSLING XXN MR MADDISON
PN534

THE SENIOR DEPUTY PRESIDENT: Well, we will adjourn until a quarter to 11.

<THE WITNESS WITHDREW [10.28 AM]
<SHORT ADJOURNMENT [10.28 AM]
<RESUMED [10.43 AM]

PN535

THE SENIOR DEPUTY PRESIDENT: Mr Gosling?

PN536

MR MADDISON: I was just going to thank your Honour for that short adjournment. I was able to get instructions from Mr Rust and I am in a position now, your Honour, to be able to cross examine Mr Thompson.

PN537

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. It is not Mr Gosling we want, it is Mr Thompson we want.

PN538

MR MOLNAR: I will call Mr Thompson, but before I do, sir, there is reference in Mr Thompson's amended statement to a certain agreement and - - -

PN539

THE SENIOR DEPUTY PRESIDENT: Just a moment, Mr Molnar. Yes, go ahead.

PN540

MR MOLNAR: There is reference at paragraph 7.2 in Mr Thompson's amended agreement to a particular agreement, a certified agreement, and it might be convenient at this stage, if I handed that up to the building construction industry.

PN541

THE SENIOR DEPUTY PRESIDENT: Perhaps your assistant could pass that to him.

PN542

MR MOLNAR: The relevant provisions in this agreement, sir, are the inclement weather provisions.

PN543

THE SENIOR DEPUTY PRESIDENT: Where do I find that?

PN544

MR MOLNAR: Which are at clause 24 and this agreement is an agreement between Thiess and the union and it applies to building and construction - just getting to the scope, scope 5.1. This agreement shall apply in respect of all its employees engaged in building and construction work as defined by the award. Now also there is the Basslink project agreement which applies to this particular site. But this agreement arguably may apply in conjunction as well. There are no inclement weather provisions in relation to the site - in terms of the Basslink agreement, but are inclement weather provisions which are stated in clause 24 of this agreement which do apply generally in, what we say, within the industry between this union and this company and we would say would be the appropriate provisions that apply in the case of any inclement weather affecting the Basslink project. And the key thing about this clause, sir, is that there is no basis for the workers to leave the site.

PN545

MR MADDISON: Sorry, your Honour, I don't mean to break Mr Molnar's flow.

PN546

THE SENIOR DEPUTY PRESIDENT: But you are going to anyway. Go on, Mr Maddison.

PN547

MR MADDISON: I have done already. I would just want to say what Mr Molnar is saying to the Commission as would be best for submissions after the witness evidence. I appreciate he referred your attention to the appropriate clause.

PN548

THE SENIOR DEPUTY PRESIDENT: Yes, I know.

PN549

MR MOLNAR: Look, totally agree, sir, but it wasn't in my outline of submissions obviously on 21 December, and I just simply want to highlight what the issue was before I put the witness in the witness box, sir.

PN550

THE SENIOR DEPUTY PRESIDENT: Yes.

PN551

MR MOLNAR: I will call Peter Thompson.

PN552

THE SENIOR DEPUTY PRESIDENT: Thank you.

<PETER THOMPSON, SWORN [10.47 AM]
<EXAMINATION-IN-CHIEF BY MR MOLNAR

PN553

For the record, Mr Thompson, could you state your full name?---Peter Edward Thompson.

PN554

And your address?---(address supplied).

PN555

Thank you. Have you prepared a statement for today?---Yes.

PN556

If I could hand this up to you. Is this the statement you prepared before
today?---Yes.

PN557

If I could just take you to paragraph 7.2.?---7.2?

PN558

Yes. You have stated there that a certain event took place on 18 January 2005, is that correct?---Date wise, I work on days, I am fairly certain it was Wednesday.

PN559

Wednesday was 19 January. You wouldn't disagree with that, it is
Wednesday?---Yes.

PN560

THE SENIOR DEPUTY PRESIDENT: So that should be 19 January, should it?

PN561

MR MOLNAR: Correct, sir.

PN562

Save for that one amendment, is this statement true and correct?---7.2?

PN563

Save for one amendment to 7.2,where 18 January will be read as 19 January, is this statement true and correct?---Fairly certain it is.

PN564

I will tender this statement, sir.

EXHIBIT #A8 STATEMENT PREPARED BY WITNESS

PN565

MR MOLNAR: No further questions, sir.

<CROSS-EXAMINATION BY MR MADDISON [10.50 AM]

PN566

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Maddison?

PN567

MR MADDISON: Thank you, your Honour.

PN568

Mr Thompson, in 7.1 of your statement you referred to an event that took place on Monday this week. Can you see where you have that?---Yes.

PN569

Your understanding, one of the obligations under your agreement that operate at the Basslink project that the 15th of each month, the company must demonstrate that they have made payments into super and Incolink and Co-invest
schemes?---Yes.

PN570

And is your understanding, Mr Thompson, that prior to Wendy being terminated, that she would provide that proof to Mr Rust before the 15th of each month?---Or on the 15th, yes.

PN571

But for whatever reason it had not happened in January this year. That is that the proof of payment into those schemes, Mr Rust had not been provided that documents on or before 15 January this year?---Correct.

PN572

THE SENIOR DEPUTY PRESIDENT: Why not?---I think the 15th was a Saturday. I assumed it would have been in on the 17th.

PN573

Yes. And when did the work resume?---Pardon?

PN574

When did work resume?---17th.

PN575

Work resumed on the 17th?---No. Norm returned on the 17th, sorry.

PN576

MR MADDISON: But work on the project commenced Monday the10th?---Yes.

PN577

And the deputy steward, Mr Newbury, was at work last week, wasn't he?---Yes.

PN578

And so there was nothing stopping the company from providing that document to Mr Newbury, was there?---Correct.

PN579

And it is your understanding of the agreements in place at the project that, if evidence of payment has not been provided, then the employees are entitled to sit in the shed until such evidence is provided?---No.

**** PETER THOMPSON XXN MR MADDISON
PN580

What is your understanding?---My understanding is that if we are deemed to be providing that evidence then there should be no industrial action to that being resolved.

PN581

If you are, sorry?---If we are providing that evidence, and are showing clear proof that we are trying to provide that evidence, then we do not go to the sheds, no.

PN582

Do you know when Thiess made the payments into those schemes?---No, I don't get involved in the commercial framework.

PN583

How long do you say that it took for Thiess to provide that evidence to Mr Rust?

PN584

THE SENIOR DEPUTY PRESIDENT: He said two to three hours in his statement at the top of page 6, Mr Maddison.

PN585

MR MADDISON: Thank you, your Honour.

PN586

Are you aware, Mr Thompson, of the Victorian Building Industry
Agreement?---Yes.

PN587

And are you aware that the obligation to provide the evidence of payment into these schemes arises from that?---Yes.

PN588

But it is not your understanding of that agreement that, if evidence has not been provided, employees are entitled to sit in the shed until such evidence is provided?---No.

PN589

On Wednesday this week, you refer to what happened in paragraph 7.2 of your statement, Mr Thompson, you see that?---Yes.

PN590

Now are you aware, Mr Thompson, the practice at the site has been that at 32 degrees the employees go home?---No.

PN591

What is your understanding of what has happened on the site when the temperature reaches 32 degrees?---The custom and practice that I am used to is that 32 - - -

PN592

I am asking you what has been the practice on the site, not in the industry generally?---This is my first of the heat, being told that there was agreement in place. I accepted it. But it is not the normal practice that I am aware of.

PN593

What was the practice that you accepted?---32 degrees and into the sheds, 35 go home.

**** PETER THOMPSON XXN MR MADDISON
PN594

On Basslink?---I have always been under that understanding that is the way it is, yes.

PN595

What is your understanding of the pre existing agreement on the Basslink project?---That is it.

PN596

Sorry?---That is what I believe it is.

PN597

That at 35 they go home?---Yes. 32 degrees in the sheds.

PN598

Did you ask the employees to sit in the sheds on Wednesday?---Did I ask them?

PN599

Yes?---Yes.

PN600

You did?---Yes.

PN601

Who did you ask?---Mr Newbury.

PN602

So you did not say that it is all right to go home on Wednesday at 32?---Me? No.

PN603

Peter Hooverman used to be the project superintendent prior to you taking up the position?---Yes.

PN604

THE SENIOR DEPUTY PRESIDENT: Sorry, who was that?

PN605

MR MADDISON: Peter Hooverman, is that correct, Mr Thompson?---Yes, Peter Hoovernan.

PN606

How long have you held that position for, as site project superintendent?---Since April 20th approximately.

PN607

And did you have discussions with Mr Hoovernan about the heat agreement on the site prior to him leaving?---Personally, myself, no.

PN608

Subsequent to Wednesday have you had further discussions with Mr Rust about the heat policy or agreement at the site?---No we haven't. Not since Wednesday.

PN609

The temperature reached 35 on Wednesday?---No.

PN610

It didn't go below 32 again though?---No.

**** PETER THOMPSON XXN MR MADDISON
PN611

In your view, Mr Thompson, the incidents that occurred on Monday and Wednesday, are they related to the week's pay issue?---That's a hard one to answer.

PN612

THE SENIOR DEPUTY PRESIDENT: Sorry, just ask that question again.

PN613

MR MADDISON: Yes, certainly, your Honour.

PN614

Mr Thompson, in your view is the events that occurred on Monday and Wednesday this week related to the week's pay issue?---As I said, that is a hard one to answer.

PN615

I was only asking again because his Honour asked me to. I didn't think the answer would be different the second time around.

PN616

THE SENIOR DEPUTY PRESIDENT: Well, that is not an answer. What is your answer?---As of my view?

PN617

Yes?---If it is my view I could say yes.

PN618

MR MADDISON: So then would it be your view, Mr Thompson, that the only outstanding issue on the site which may lead to further industrial action is related to the week's pay issue?---Yes.

PN619

Just a final question. I know you weren't here with us prior to Christmas, but there was an issue raised about Complete Curbing, about whether they would be able to come in and do the work that they were required to do on the
project?---Yes.

PN620

And Complete Curbing have come on to the project since 10 January and done the work that they have been required to do without any interference or bans, is that correct, Mr Thompson?---Yes, to date.

**** PETER THOMPSON XXN MR MADDISON
PN621

Thank you, Mr Thompson. I have no further questions, your Honour.

PN622

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Maddison. Mr Molnar?

PN623

MR MOLNAR: No further questions.

PN624

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thompson. You are excused.

<THE WITNESS WITHDREW [10.59 AM]

PN625

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Maddison, do you intend to call any evidence?

PN626

MR MADDISON: No, the union doesn't, your Honour.

PN627

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Molnar?

PN628

MR MOLNAR: Thank you sir. That concludes the evidence.

PN629

THE SENIOR DEPUTY PRESIDENT: Yes. I had assumed that when I asked Mr Maddison if he was calling evidence.

PN630

MR MOLNAR: So that concludes the evidence for Thiess. I just wish now to make submissions for a permanent order under section 127. You will note that the evidence of Peter Thompson, that under paragraph 6.5, the evidence is that the Basslink project can now be completed to the end of March 2005. What we say is this, that having regard to the history of industrial action on this site, and the fact that this is the third occasion, sir, that we have been to this Commission in relation to industrial action on the site. We consider that it is very clear that the union and its delegates do not and have no intention of complying with the dispute resolution procedure, and it is most unlikely that will continue in the future.

PN631

We would certainly be saying on that basis that industrial action is probable in the circumstances where there has been no withdrawal of any claim in relation to the week's pay issue, that as part of the winding down of the project, there will be further redundancies through to the end of March of this year and having regard to this issue, and the previous issues, there is a likelihood of industrial action. If I could just take you to a few other things in Mr Thompson's statement, which evidences - and this goes to the discretion of the Commissioners in this matter -which evidences the approach of the CFMEU to the industrial relations with Thiess, to its approach towards the Act, its approach towards dispute resolution proceedings.

PN632

You will recall, sir, that on 21 December you have issued an interim order, that order was issued round about at the conclusion of the proceedings. The proceedings concluded about 11.32, and you issued an order. Indeed, you requested Mr Maddison to contact Mr Rust to - - -

PN633

THE SENIOR DEPUTY PRESIDENT: Yes. I was keen to ensure that the making of the order was made known to the relevant people as quickly as possible, that is why I did that. The order came into effect at 2 pm that day.

PN634

MR MOLNAR: And you will recall, sir, that the reason why we were pressing for an interim order in part was Complete Curving, but it was also, so that we could work overtime on 21 December. The response of the CFMEU to that order was, and this is evidenced by Mr Thompson's statement, was in fact for Mr Rust to call a meeting and the evidence is that he addressed that meeting and work did not recommence after that meeting. So of course, no overtime was worked, and we would certainly be saying on that basis that that is industrial action and we would certainly be saying that that is industrial action in breach of your interim order, sir. The witness statement of Peter Thompson also sort of governs the steps which the company took in relation to directly informing each employee, each worker, of their obligations and that is evidenced in paragraph 5.1.

PN635

You will see, sir, that since 10 January, when the workers came back, that there has been further industrial action, even though, obviously, some work is taking place, and obviously Complete Curbing has been able to commence work, albeit there now has obviously been delays in the work that they have been able to do.

PN636

Paragraph 7.1 evidences a meeting at the place this week, this Monday, in relation to the proof, the evidence of redundancy payments which Mr Thompson outlines is evidence which, really, principally comes from the superannuation funds which must then be supplied to the CFMEU. That's an obligation and we accept that's an obligation. If I can just perhaps take you to the Thiess, CFMEU Building Construction Industry Collective Bargaining Agreement 2002-2005, which I have just handed up, and if I could take you to paragraph 26, at the conclusion of that there is a sentence which says:

PN637

Where a CFMEU official requests to examine the superannuation records to confirm compliance, they are entitled to do so.

PN638

There is nothing there about the workers sitting in the sheds, there is nothing there about the workers stopping work. There is absolutely no basis for that whatsoever. It's unlawful industrial action and we say that it breaches an interim order. Secondly, in relation to paragraph 7.2 we say this. That again what occurs here is that Mr Rust simply informs the company that it's 32 degrees Celsius and they're going home. And you would have observed that in paragraph - the inclement weather provision under paragraph 24 of the Building and Construction Industry Collective Bargaining Agreement, there is no lawful basis for the union to take that action. Indeed, what is - and I can take you to the particular provision but you will see that there are provisions in this agreement under this section for the union to consult with the company, and there has been no consultation here.

PN639

THE SENIOR DEPUTY PRESIDENT: This is in relation to the hot weather issue.

PN640

MR MOLNAR: Yes. There has been no consultation here. And the only basis for leaving the site is where the temperature reaches 35 degrees Celsius, and you will find that in clause 24.10.4 under working arrangements. Where the temperature approaches 35 degrees Celsius, the consultative process outlined in subclause 24.1.4 shall occur with an intention, and employees may leave site if the temperature actually reaches 35 degrees Celsius. So again we say that the departure on that day is unlawful and breaches the interim order issued by you, sir. So there is at least three instances we say that are in breach of the interim order and is clear evidence of the approach of the CFMEU towards the use of, for example, dispute resolution processes, the use, the prohibition against any further claims, which was provided in the Basslink project agreement.

PN641

It might just be useful, sir, to just illustrate the approach of this Commission in a couple of cases which are very recent. If I could hand up to you, sir, case file Barclay Molem Construction, which is a case PR954545. This is a decision by Deputy President McCarthy on 20 December 2004. And whilst I understand that ultimately these issues turn on the merits of each particular case, if I could just take you to paragraph 54 of that decision and read out what his Honour says:

PN642

Essentially, the employer is asserting that there has been a history of industrial action and that the procedures in the agreement have not been followed. I find that the evidence supports by assertions. Whilst there may be differences in some of the issues that are said to have been the reason for the stoppages, two essential facts emerge. Firstly, industrial action has occurred on a number of occasions. Secondly, the dispute and the safety procedures have not been followed on any occasion.

PN643

Paragraph 55:

PN644

Furthermore, on most of the occasions that industrial action has occurred, there have been commitments by the CFMEU that the procedures will be followed in the future. These commitments have not been fulfilled, even partially. On most occasions discussion within the parties has resulted in resolution of the issue said to be causing angst amongst employees.

PN645

And you would have observed in the witness statement of Mr Gosling that in respect of the two previous applications to this Commission for section 127 orders, there have been certain statements made by the CFMEU, on transcript, in relation to that industrial action in relation to their future behaviour. And we say, at the very least, the industrial relations we've seen quite recently have breached the interim order and, over December, is definitely against the spirit of the sort of approaches which the union have been taking. And again paragraph 6 of the same decision:

PN646

Given that experience, the only conclusion I can arrive at is that there is no strong likelihood that the procedure in the agreement will be complied with in the future.

PN647

And at paragraph 59:

PN648

It appears to me that there is a probability of further industrial action occurring against the employer. The employer, having reached an agreement with the CFMEU is entitled to the protection provided by that agreement just as employees are entitled to expect the benefits arising from it.

PN649

At paragraph 6:

PN650

And therefore I have decided to accede to the employer's request and issue an order substantially in terms sought.

PN651

Similarly, we say that we have entered into an agreement, certified by this Commission.

PN652

THE SENIOR DEPUTY PRESIDENT: What was the term of Deputy President McCarthy's order?

PN653

MR MOLNAR: It's not actually.

PN654

THE SENIOR DEPUTY PRESIDENT: The employer sought an order for the expected duration of the project, yes?

PN655

MR MOLNAR: Yes. My clients have entered into an agreement with the CFMEU. Mr Gosling has given evidence in relation to the memorandum of understanding that was entered into between the CFMEU and it, which talks about commitment to proper processes. In short, if I could just paraphrase it. If I could just take you to one more decision, sir, and that decision is Electrolux Home Products Proprietary Limited against the Automotive, Food, Metals, Engineering, Printing and Kindred Industry Union, PR951797. And if I could just take you to paragraph 15 of that decision, sir, and, again, it's - before I take you to that, if I could just point out that what Senior Deputy President O'Callaghan does do. He does go into the background of the matter and the history of the matter and then, you come to paragraph (d) and under the first stop point:

PN656

There is little real commitment on the part of the AMWU delegates for dispute resolution of provisions of the agreement or, for that matter, the improvement of workplace relations consistent with the agreement.

PN657

Second dot point:

PN658

There is a continuing predisposition to the taking of industrial action as an expression of frustration about Electrolux or, specifically, Electrolux management.

PN659

The fourth dot point:

PN660

There is nothing for me to indicate that Electrolux employees, members of the AMWU recognise that a pattern of continuing industrial disputation is inconsistent with both the requirements of the Act and modern commercial dictates of a competitive environment.

PN661

An order, similarly, was made and you will see at paragraph 79:

PN662

I have decided this order should operate for the duration of the agreement for the following reasons.

PN663

And he outlined what those reasons are. And, again, it's possible to see these things turn on the merits of the particular case for the Commission. We say that those cases are indicative of the approach taken by the Commission in circumstances where there has been a history of industrial action, there's been breaches, essentially, of the sort of commitments given to this Commission in relation to that, where there's been an agreement where the dispute resolution provisions have not been complied with, where, in recent times, there's been industrial action.

PN664

And also, in the circumstances where the week's pay issue is certainly still alive and there's been no evidence in relation to that or from you - in fact, there's been no evidence from the CFMEU and we'd certainly be saying that all of the evidence from Thiess should be accepted, in the absence of any contrary evidence being put before this Commission and should be accepted as such and the Commission should make findings in relation to, certainly the jurisdictional basis of this application and certainly, in the exercise of discretion, that there is threatened, going back to the jurisdictional point, threatened or probable action. Thank you, sir.

PN665

THE SENIOR DEPUTY PRESIDENT: Mr Maddison?

PN666

MR MADDISON: Thank you, your Honour. The primary submission of the union is there is not sufficient evidence before you to make an order, or a further order until the end of March. What we would say is that the evidence before you today is there's no industrial action happening.

PN667

THE SENIOR DEPUTY PRESIDENT: It is not put that it is.

PN668

MR MADDISON: Sorry, your Honour?

PN669

THE SENIOR DEPUTY PRESIDENT: It is not put that it is happening at the moment.

PN670

MR MADDISON: Yes. And the applicant has asked you to find that it's threatening or impending, to use the language of section 127.

PN671

THE SENIOR DEPUTY PRESIDENT: Yes.

PN672

MR MADDISON: Or probable. Now, we would say that the evidence before you should not lead you to that conclusion. Since the order was made, the evidence, say, from Monday the 17th and Wednesday the 19th we would say is not sufficient basis upon which a further order should be granted. If you are against us on that, your Honour, we would say that any order that would be made needs to be directed at the industrial action that the Commission finds is threatened impending or probable. And I hand up a Full Bench decision, Boulton J presiding, a decision of the Full Bench of 6 August 1999, your Honour. Can I take you to that decision on page 2 of 6 of the internet version that I have handed up. It has at about point 3 of the page extract from the original order that was issued by Commissioner O'Connor, and the order is expressed in broad terms which, in effect, was to seeking to stop any industrial action.

PN673

Can I take you over the page, your Honour, to paragraph 3, which refers to the main ground relied upon by the unions in appeals and relates to the width of the orders made by the Commissioner. It was submitted that the Commission's jurisdiction making an order under section 127 is limited to giving directions about the industrial action that appears to the Commission to be happening, impending, threatened or probable. In this case, it was said that the threat of industrial action relied upon by the Commission in making orders relates to wet weather training. And paragraphs 4 and 5, it goes to the evidence that was before the Commission at first instance as to what the dispute was about, namely the wet weather training.

PN674

THE SENIOR DEPUTY PRESIDENT: And what was the nature of the industrial action that was taken, Mr Maddison?

PN675

MR MADDISON: I think the Commissioner found that based upon some correspondence between the company and the union, that because of the correspondence from the union saying that if a certain thing - I think it's found in paragraph 7, over the page, your Honour. Sorry, he refers to the letter in paragraph seven and the decision. It's a letter from the union to the company which put the company on notice if a certain thing didn't happen in relation to the wet weather training, the union was going to take industrial action.

PN676

THE SENIOR DEPUTY PRESIDENT: Yes. What I am interested to know is what form of industrial action?

PN677

MR MADDISON: I don't think any industrial action had actually happened. And I will take you to that, your Honour, but I think based upon the pattern, and similarly to what Mr Molnar relies upon today, that because of things that happened, industrial action had manifested itself about other issues and to be satisfied that industrial action will manifest itself in relation to, in the exhibits before your Honour, in relation to the week's pay issue. My understanding of the case before Commissioner O'Connor, that in relation to the wet weather training there hadn't been any industrial action as such, but he found that there was a probable basis on the history of the site and the correspondence from the union to the company, putting the company on notice if they didn't do a certain thing the union was going to take industrial action.

PN678

THE SENIOR DEPUTY PRESIDENT: Sorry? Are you waiting for me or am I waiting for you?

PN679

MR MADDISON: Sorry, your Honour, I thought I was waiting for you, but I could be wrong, your Honour. I was watching you reading so I didn't want to talk over the top of you reading.

PN680

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Maddison. Go ahead now.

PN681

MR MADDISON: That's my understanding of the case anyway. There hadn't been actual industrial action in relation to wet weather training but there had been an indication that there was going to be, and on that basis, the Commissioner at first instance found that further industrial action was threatened or probable in relation to that wet weather training. And in paragraph 9 of the decision - I have still got to take you to the decision further, but paragraph 9 refers to the Full Bench in Coal and Allied, and refers to the power under127 as to stop the industrial action that is bound to be, in this instance, threatening, impending or probable. And paragraph 10 refers to a decision of Marshall J, which again makes the point that any orders should be directed to the industrial action and Marshall Jl makes the point, the word "the" has been chosen instead of the word "any".

PN682

And paragraph 12, the Full Bench finds that the reason it finds that the Commissioner has set out in his decision limited to this specific instance of threat industrial action, mainly threatened action by the employees in relation to the issue of wet weather training. And they, the Full Bench, conclude:

PN683
PN684In our view, the orders made by the Commission are too wide and it would seem the range of industrial action which was found to be threatened and probable and, for that reason, in paragraph 14, the orders cannot stand and were quashed.
PN685

Now, we would say that the matter before you, your Honour, that the evidence today is that Mr Gosling and Mr Thompson, that the live issue which, in their view, may lead to further industrial action is the week's pay issue. It will be the union's submission that if you go against us in our primary submission and find the jurisdictional prerequisites exist, that is that industrial action is threatened impending and probable and should be confined to the week's pay issue as opposed to - - -

PN686

THE SENIOR DEPUTY PRESIDENT: Well, aren't you confusing the nature of industrial action with the reason for it in that assumption? Aren't you confusing the industrial action with the reason for the industrial action, Mr Maddison. As I understand, your submission, if I make an order it should be an order preventing industrial action taking place in relation to the issue of a week's pay.

PN687

MR MADDISON: Yes.

PN688

THE SENIOR DEPUTY PRESIDENT: But what is the industrial action?

PN689

MR MADDISON: The industrial action is however you define it to be, your Honour.

PN690

THE SENIOR DEPUTY PRESIDENT: How should I define it, Mr Maddison?

PN691

MR MADDISON: Well, in our submission - - -

PN692

THE SENIOR DEPUTY PRESIDENT: I'm looking to you for help.

PN693

MR MADDISON: In our submission, it should be confined to the threats that have currently - or how it has manifested itself so far or the threats, that is, there was evidence before Christmas about concrete vans.

PN694

THE SENIOR DEPUTY PRESIDENT: But there's a myriad ways in which industrial action can take place. If I make an order, say, that concrete bans not occur. There will be a different .....

PN695

MR MADDISON: I don't suggest you do that, your Honour, and you define industrial action broadly in the interim order. While we would say that the industrial action defined broadly but should be, if you were to make an order, stopped in relation to the week's pay issue. Similarly to the comments the Full Bench made in the case that I provided to you, that that is, however - - -

PN696

THE SENIOR DEPUTY PRESIDENT: Well, that's why I took you to that. That's not really what the Full Bench was saying, the Full Bench was saying that the way in which industrial action was defined was too broad. It didn't seem to be saying that it had to be confined to the issue, or if it did, is that what the Act says, is the Full Bench right?

PN697

MR MADDISON: Well, we would say that the Act talks about the industrial action and we would say that any orders should be directed to the industrial action. In this instance, it's related to the week's pay issue. I mean, it may be that the manifestation of the industrial action would be described broadly, that is it may be not confined to just concrete bans or what have you but the actual underlying issue, it has to be tied to that because that is, what we would say, the evidence suggests in this instance, that that's what it is about.

PN698

THE SENIOR DEPUTY PRESIDENT: So you would suggest that any order be that no industrial action take place in relation to the issue of a week's pay.

PN699

MR MADDISON: Yes.

PN700

THE SENIOR DEPUTY PRESIDENT: And then Mr Rust says that we're taking this industrial action because it's too hot today or because you're two minutes late with your superannuation payments. There will be Mr Thompson going back into the witness box to say, look, despite the fact that Mr Rust said that, I think it was really in relation to the week's pay issue or it's going to cause an awful problem to identify - - -

PN701

MR MADDISON: Evidence is like that, your Honour and I don't think there's anyway that we can get around the fact that sometimes evidence differs and that's what we have - - -

PN702

THE SENIOR DEPUTY PRESIDENT: I'm trying to make the job for the Federal Court easier if I issue the order, Mr Maddison.

PN703

MR MADDISON: I know, your Honour, and I'm trying to insist in making sure that an order's not done and valid because it's beyond jurisdiction, your Honour.

PN704

THE SENIOR DEPUTY PRESIDENT: Well, we're both striving to the same - - -

PN705

MR MADDISON: Well, it may appear that way. The final point I just wanted to make, which is related to the debate we were just having, your Honour, if it is referred to in the decision, if it is said that, well, there's been disputes about all sorts of things and Mr Gosling gave evidence to that and therefore anything may happen in the future. Paragraph 15 of the decision that I handed up, refers to another Full Bench, another CBI contractors case which goes to the width of the order. In paragraph six:

PN706

It's unnecessary for us to deal with this issue if we decide for other reason the Commission's decision cannot stand. We therefore express and overview on the jurisdiction prerequisites, or the appropriateness of making wider orders in relation to industrial action at the Worsley Expansion Project site. In any event, such orders would need to be supported by appropriate findings regarding the likelihood of industrial action. In this regard, we know the view expressed by the Full Bench of the Commission on another matter related to this site and the Full Bench in the other related matter would have held that a ..... but continual industrial action would be sufficient to enable the view to be formed that industrial action is threatened and impending and probably, even though there was no action taking place at the particular time the order was to be operative.

PN707

But this is not the case here, although with some reference to the proceedings before Commissioner ..... to early industrial action at the site. The evidence overall is not sufficient to enable the requisite view to be formed. Paragraph 16, the Full Bench notes the history of industrial action at the site and this is a matter raised by the various companies in the applications which are before the Commissioner, however, the Commissioner made no findings in that respect. Further Commissioner refers to the history in his reasons for the decision, thus he has reinforced the conclusion that it is probable that threatened industrial action led at 24 May would manage ..... into action, industrial action. And while we would say, in respect of the case before you today, your Honour, that reliance upon earlier disputes, we would say, does not lead to the need for broader order, only that it may support a fine if that industrial action in relation to the week's pay issue is threatened, impending or probable.

PN708

I don't have the case before me but there is a Federal Court case, the BHP matter with Justice Beauford I do have it at the office, but it is a case where orders were made at the Commission which were expressed to be, in broad terms and not tied to an issue such as a week's pay issue, if you like, and BHP went to the Federal Court after the orders were made and there was a dispute about, and quite clearly on the evidence, about something very different and BHP argued that the orders of the Commission captured this new industrial action. And Justice Beauford read down the orders and said, no, that could only be directed at the issue at the time. I can provide a copy of that decision.

PN709

THE SENIOR DEPUTY PRESIDENT: Yes, I'd appreciate that. Or at least a reference.

PN710

MR MADDISON: A reference, I can do that, and to Mr Molnar as well, obviously. Your Honour, the only other point I'd make in the company, looking at the evidence that they did provide a copy of the order to all their employees. We would say that service of the order should also be on the individuals, rather than just on the notice board in respect of the employer.

PN711

THE SENIOR DEPUTY PRESIDENT: Well, that shouldn't be a problem given that there were only 20.

PN712

MR MADDISON: Yes.

PN713

THE SENIOR DEPUTY PRESIDENT: You can address me in reply on that, Mr Molnar.

PN714

MR MADDISON: I have nothing further.

PN715

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Molnar.

PN716

MR MOLNAR: Just on that last point first. We have said we would have no problems with an order directing directing that ..... be given on the individuals. Even though the interim order didn't specify that, we thought our improved caution, prudence, to do that, to ensure, obviously, that each employee was aware of their rights and obligations.

PN717

THE SENIOR DEPUTY PRESIDENT: Mr Molnar, let me just interrupt you for a moment. Mr Maddison, I forgot to ask you one question.

PN718

MR MADDISON: Yes.

PN719

THE SENIOR DEPUTY PRESIDENT: If I am minded to make an order, given the direct involvement of Mr Rust in so much of these matters, should he be named in the order? Why shouldn't he be named in the order?

PN720

MR MADDISON: I think he is.

PN721

THE SENIOR DEPUTY PRESIDENT: He's an official.

PN722

MR MADDISON: No, well, he's not an official of the union, no, he's a selected shop steward on the site.

PN723

THE SENIOR DEPUTY PRESIDENT: Yes, he's an employee.

PN724

MR MADDISON: He's an employee, not of the union, no, he's an employee of Thiess and we would say that he is - - -

PN725

THE SENIOR DEPUTY PRESIDENT: He's a delegate.

PN726

MR MADDISON: Sorry?

PN727

THE SENIOR DEPUTY PRESIDENT: He's a delegate, is he because to be honest there is - - -

PN728

MR MADDISON: Yes, I was going to say he is picked up by the order, obviously.

PN729

THE SENIOR DEPUTY PRESIDENT: Yes, and I suppose there's been no application to name him and he'd be denied natural justice if they were to do that without him having an opportunity to say something.

PN730

MR MADDISON: Yes, your Honour, that would be our submission and he would be obviously captured by it if an order was made in similar terms, he's obviously captured by it.

PN731

THE SENIOR DEPUTY PRESIDENT: Yes.

PN732

MR MADDISON: I don't think he's under any illusion that he's not captured by such an order.

PN733

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, sorry Mr Molnar.

PN734

MR MOLNAR: That's okay, sir. Just in light of some of the submissions made by Mr Maddison about the scope of the order. I hadn't read the decision that led to the appeal in the CBI instructors' case but I think it's pretty clear in paragraph 17 as to what that was about.

PN735

In the present matter -

PN736

I'm just reading out paragraph 17:

PN737

In the present matter, the reasoning and findings made by the Commission with respect to threatened and probable industrial action do not find an appropriate basis for the orders made. It follows that the orders may exceed what was appropriate within jurisdiction and also exceed what was appropriate, having regard to the finding as to the particular industrial action which was probable or threatened.

PN738

So there was a disconnect between the Commission's findings as to what industrial action was threatened and probable and what actually merged in the order and that was the basis of the appeal, sir. What we would, of course, be saying is that you ought to make findings in relation to industrial action that is threatening, impending or probable that covers exactly the same scope as the scope of the industrial action to be prohibited under the 127 order.

PN739

THE SENIOR DEPUTY PRESIDENT: Well, what should those findings be, in your submission? What should I find, Mr Molnar? Just as I sought help from Mr Maddison, I seek help from you.

PN740

MR MOLNAR: You should make findings that there is industrial action that is threatened, impending or probable, being - and, look, I just take a bit of ..... industrial action under the interim order. (a) Refusal by the employees to attend for work at the site, work as directed (b) a failure or a refusal by the employees to attend on the site to perform on the site (c) the failure or refusal by any of the employees to work as directed (d) the performance of work by any of the employees who attended the site work in a manner that is different from that in which was customarily performed, or the adoption by such employees who are practised in relation to the work, the result of which is a restriction or limitation of the layman forms of work, and (e) a finding that, in relation to the imposition by any of the employees of any ban, limitation or restriction on the performance of work on the acceptance of the offering for work in accordance with the terms as it was described by a new award or order of the Commission or by a certified agreement that regulates their terms and conditions of employment.

PN741

THE SENIOR DEPUTY PRESIDENT: You say that is the nature of the industrial action that is threatened, likely or probable.

PN742

MR MOLNAR: Correct. Each one of these is - it's not necessarily mutually exclusive, but does take into account different facets of the industrial action that takes place and had - - -

PN743

THE SENIOR DEPUTY PRESIDENT: And has taken place, you say, on the evidence here.

PN744

MR MOLNAR: Has taken place, absolutely, sir, in breach of this interim order. And we say that that's threatened, impending or probable. I mean, obviously, each interim order or any order is in relation to future conduct. We can't predict precisely the sort of conduct that might, in very precise terms, would be taken. And the nature of these orders is that they need to be broad.

PN745

THE SENIOR DEPUTY PRESIDENT: Yes, well, Mr Maddison seems to accept that part of the proposition. He then says that it should be confined to action taken in support of the claim for an additional week's pay on termination.

PN746

MR MOLNAR: We say that ought not be the case and we say that it ought not be so confined, given the nature of industrial action that has taken place on this site which has manifested itself in all types of claims and those claims are before Commission in evidence. And, at this point, here we are in January, the project's still will run delayed but still run to March 2005. My client has come to this Commission before, requested order, had commitments given to this Commission in relation to industrial action. There comes a point where you could say that, in regard to the current issues which have taken place as recently as this week, that the issues that may well be claimed - the claims that may be made in the future to the conclusion of the project, may be broader than just simply the week's pay issue.

PN747

And it goes back to the decisions, essentially, partly that I have handed up to the Commission, the decision of Deputy President McCarthy and Senior Deputy President O'Callaghan where you have evidence that a union has - there's a history of claims, court commission and a history of non-appliance of dispute resolution proceedings.

PN748

THE SENIOR DEPUTY PRESIDENT: Yes, thanks. Yes, thank you, gentlemen. I will make an order until the end of March, in line with the submissions of the company. On 21 December I gave my oral reasonings for the decision for the making of an interim order and I indicated that I was satisfied as to the jurisdictional facts. That satisfaction remains. The question now is the exercise of my discretion to make an order that effectively runs for the term of the project. The project is known as the Basslink Project, that's a project for the construction of a power line to run from Loy Yang in Gippsland, Victoria, across Bass Strait to Bell Bay in Tasmania. It's a very large and very important project. I'm satisfied that the construction phase of that project is nearing its end and should be completed by the end of March of this year.

PN749

On the previous occasion, I didn't take account of that part of Mr Gosling's witness statement that referred to past conduct of the union and the members of the union employed by Thiess or others at the project and because Mr Maddison stated that he hadn't had an opportunity to obtain instructions, he's now done that and obtained instructions and cross-examined Mr Gosling this morning in relation to those matters. I do take those matters into account in my decision to make a final order that will run until the end of March 2005. Mr Gosling's evidence, amongst other things, indicates that there have been applications for section 127 orders made on at least two other occasions in relation to this project because industrial action was taking place, that various undertakings were given in relation to future conduct in at least one and, I think, in a second of those proceedings and the power of section 127 orders were not made having regard to those undertakings.

PN750

That, to me, is sufficient to establish enough of a pattern of conduct for me to have formed the view that industrial action is, at the very least, probable in relation to the work that is regulated by the certified agreement, being the Thiess Proprietary Limited/CFMEU Basslink Victoria Enterprise Bargaining Agreement 2003-2006. I note that that agreement was made or certified on 4 February 2004 and is expressed to remain in force until February 2007. At paragraph one, there was a commitment by the parties, the second part of which reads:

PN751

Specifically, the parties to this agreement agree to use their best endeavours to facilitate achievement of the completion dates for the construction and installation testing and commissioning phases and, consistent with the dispute settling procedure, this agreement work actively to promote harmony and avoid the imposition of any bans, limitations or strike action. The dispute settling procedure is set out at clause 10 of the agreement and provides typical steps to enable industrial grievances or disputes to be settled by negotiation and, failing negotiation, by bringing the matter to the Commission which that clause empowers the Commission to exercise arbitration powers.

PN752

The action that has taken place in December and January seems to be largely related to the issue of a claim by the union for a week's pay on termination of employment when employees are made redundant because the project is reaching an end. Clause 15 of the agreement deals with redundancy pay and clearly envisages that notice of termination of employment on redundancy may be given or payment of a week in lieu made. Here the company has given notice and has indicated that it expects that notice to be worked out and that accordingly that no pay in lieu of notice will be made. The clause, which reads:

PN753

Employment may be terminated by either party giving notice or, in the case of the employer, by payment of a week in lieu of notice in accordance with the provisions of section 170CM of the Workplace Relations Act 1996.

PN754

That makes it clear that the company is entitled to give notice and expect work to be performed and that there is no entitlement to a week's pay in addition to that. The certified agreement also contains a no further claims clause at clause 24, and that makes it clear that the claim being made by the CFMEU for an additional week's pay in addition to the week's notice is in breach of clause 24 of the agreement. Mr Eric Richards gave evidence on the last occasion, and his witness statement is exhibit A6, and he supplemented that in oral evidence and was cross-examined, he gave evidence in relation to the bans that had been imposed by the CFMEU on 17 and 20 December in relation to the issue of seeking the extra week's pay.

PN755

There was a concrete ban imposed at the Loy Yang and Giffard sites, the two sites relevant to the project, and bans again on 20 December 2004 in relation to the erection of structural steel at the Giffard site and overtime at both sites to take effect on the 21 December 2004. It was on the basis of that evidence that I made an interim order on 21 December 2004 to operate from 2 pm on that date. I asked Mr Maddison to ensure that Mr Rust, the relevant delegate, was informed of the making of that order so that work would be able to take place without being restricted by industrial action from 2 pm on that day. I did that, I took that course of action because the site was about to close down for the Christmas break, I think on 22 December.

PN756

MR MOLNAR: The site was to close on 22 December.

PN757

THE SENIOR DEPUTY PRESIDENT : Yes, on 22 December, and the company was anxious to ensure that as much productive work as possible could continue until the actual Christmas close down. Mr Peter Thompson, the project superintendent for the Basslink project and employee of the company Thiess Pty Ltd, provided a witness statement this morning, exhibit A8, and was cross- examined on that statement. I am satisfied that in addition to the industrial action that took place prior to and up to 21 December, further industrial action has taken place. Mr Thompson's evidence, which I accept, is that a copy of my order was place on the noticeboard at each site at approximately 2 pm on 21 December, and that at 1.30 pm on that date Mr Rust had told Mr Thompson that he would have a meeting with CFMEU workers. That meeting took place at about 1.30 pm, a meeting that was observed by Mr Thompson.

PN758

The meeting concluded about 2 pm, however, despite the order I issued, work did not commence after that meeting at the Loy Yang site. The meeting I had was held at the Loy Yang site. Despite expectations that work would continue until 5.30 pm that day that did not happen, and Mr Rust told Mr Thompson that the guys were going home because of "Theiss's attitude Now, work did continue at the Giffard site with the exception of the work covered by the bans. I am also satisfied, again from Mr Thompson's evidence, that early in the morning of Wednesday 22 December 2004 each employee was provided with a letter and a copy of my order and that that occurred at approximately 7 am at both sites. The work to be performed on 22 December at Loy Yang was tidying up work and making the site secure, and at the Giffard site, in addition to tidying up and making the site secure, some three cubic metres of concrete were poured.

PN759

At approximately midday on that day, Mr Thompson received a telephone call from Mr Rust who, having been made aware that concrete had been poured at the Giffard site, indicated to Mr Thompson that there would be repercussions for that on the return to work in early January 2005. The evidence is that the Basslink project is expected to be completed at the end of March 2005 and that between now and that time the remaining 21 Theiss employees will have their employment terminated for redundancy. Mr Thompson is of the belief that the claim for an additional week's pay is still existing. I have heard nothing from the union that suggests that that is not the case and I find that the claim isextant. The project resumed with a return to work on 7 January 2005, and I infer that there were no bans imposed until Mr Rust returned from leave on 17 January 2005. Again, Mr Thompson's evidence is that upon
Mr Rust's return to work he had organised a stop work meeting in the sheds at Loy Yang for all workers on the site, and he told Mr Thompson that the workers would not return to work until all employers, including the subcontractor Siemens, had provided evidence that they had paid last month's contributions into Incolink CBUS and CoInvest. The stop work meeting started at 7.30 am and it was not until two or three hours later when Theiss had been able to obtain the necessary paperwork to evidence payment that work resumed.

PN760

Theiss had to contact the relevant superannuation funds and obtain receipts which were required by Mr Rust. Accordingly, no work was done on the site for about two hours. A subcontractor, Access Ceiling, was not able to provide the evidence for a day and a half, and that company's employees were not able to work for a day and a half. I find that there was no proper basis for Mr Rust to direct the employees to remain in the sheds until proof of payment had been made, and I have been taken to the provisions of the Theiss Pty Ltd/CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 which I am told applies to this site. Clause 26 deals with superannuation, clause 25 with redundancy, the payment into Incolink and clause 27 with CoIinvest .

PN761

Although clause 26 provides that when a CFMEU official requests to examine superannuation records to confirm compliance that official is entitled to do so, I see nothing in the agreement and indeed I would be surprised to find anything in the agreement that authorises the taking of industrial action pending the provision of such evidence. I draw the inference, having regard to the history of this matter, that the sitting in the site was more related to the issue of pursuing a week's pay than to a bona fide desire to ensure that payment had been made. There was further industrial action on 19 January 2005 when Mr Rust informed Mr Thompson that because it was 32 degrees Celsius the workers were going home.

PN762

Again I was taken to provisions in the collective bargaining agreement that indicate that when the temperature approaches 35 degrees, consultation is to be held about what should occur with an intention that employees may leave site if the temperature actually reaches 35 degree. That is to be found in clause 24.10.4. It then goes on to say that if the temperature reaches 35 degrees the task or activity being performed will be completed before work is to cease, and the penalty provisions as for emergency work under the NBCIA shall apply.

PN763

Mr Maddison suggested to Mr Thompson in cross examination that the custom and practice at the Basslink site was that if the temperature reaches 32 degrees the employees go home. Mr Thompson did not agree to that. His belief is that at 32 degrees the employees sit in the sheds to see if other productive work can be provided and that if the temperature reaches 35 degrees they go home.
Mr Thompson has been employed in his role since April 2004 and this is his first experience of work ceasing because of heat. Having regard to the history referred to by Mr Gosling and the evidence of the more recent industrial activity by
Mr Richards and Mr Thompson, I am comfortably satisfied that industrial action is at the very least probable in relation to work that is regulated by the certified agreement at this site, and accordingly it is appropriate that an order under section 127 be made. I am also satisfied that given the winding down of work at the site that it is probable that industrial action is probable between now and the end of March when work will be completed on that site and accordingly appropriate that an order be made to the end of March 2005.

PN764

The form of the order has been debated before me. Mr Maddison relies on a decision of a Full Bench of the Commission comprising Boulton J, Deputy President Fielding and Commissioner Leary on 6 August 1999 involving CBI Constructors to be found in print R7918, and submits that any order that I make needs to be confined to the, and I emphasise the word the, industrial action that I have found to be probable. Mr Maddison goes further and says that the order ought also be confined to any industrial action in support of the claim for an additional week's notice.

PN765

The Act makes it clear that the Commission may by order give direction that the industrial action stop or not occur, and the Federal Court has held that any order must be directed to the industrial action that the Commission has found is the subject of the order. Mr Molnar submits that the industrial action is that in effect described by me in the interim order made on 21 December 2004. I accept that submission save that the references to the date in that part of the order no longer apply.

PN766

I find that the industrial action that is probable is (a) a failure or refusal by members of the CFMEU or persons eligible to be members of the CFMEU employed at the Loy Yang or Giffard sites by Theiss Pty Ltd and/or subcontractors working on those sites to attend for work at the sites; (b) a failure or refusal by any of those employees who attend these sites to perform any work; (c) a failure or refusal by any of the said employees who attend at the sites to work as directed; (d) performance of work by any of the said employees who attended the sites in a manner that is different to that which it is customarily performed or the adoption by such employees as a practice in relation to work, the result of which is a restriction or limitation or delay in the performance of work and; (e) the imposition by any of the said employees who attended the sites, or either of them, of any ban, limitation or restriction on the performance of work or on the acceptance of or the offering for work in accordance with the terms and conditions prescribed by any award or order of the Commission or by a certified agreement that relates their terms and conditions of employment.

PN767

Making an order in those terms seems to me to conform with the requirements of section 127(2). I am not inclined to further confine the order by limiting it in some way to industrial action taken in support of the claim for an additional week's leave. As I indicated in discussion with Mr Maddison, to ascertain the reason for any industrial action is fraught with difficulty and, further, having regard to the nature of the history of industrial action on this site, I do not think it appropriate in the exercise of my discretion to confine the taking of any industrial action for a particular purpose or advance particular claims.

PN768

Accordingly, I will issue a final order under section 127 along the lines that I have indicated to operate from the expiry of the interim order, which is 4 pm today, and to remain in force until 31 March 2005. Mr Molnar, I direct you to prepare a draft order for my signature and provide it to Mr Maddison in advance, and if there is any difficulty the matter can be brought on for settlement of orders. Is there anything else that needs to be said gentlemen?

<ADJOURNED ACCORDINGLY [12:07PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GRAHAM LESLEY GOSLING, RECALLED AND RESWORN PN507
CROSS-EXAMINATION BY MR MADDISON PN511
THE WITNESS WITHDREW PN533
PETER THOMPSON, SWORN PN551
EXAMINATION-IN-CHIEF BY MR MOLNAR PN551
EXHIBIT #A8 STATEMENT PREPARED BY WITNESS PN563
CROSS-EXAMINATION BY MR MADDISON PN564
THE WITNESS WITHDREW PN623