C2005/1273, Transcript of Proceedings [2005] AIRCTrans 2370 (18 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13368-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

C2005/1273

CSBP LIMITED
AND
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/1273)

PERTH

5.38PM, FRIDAY, 04 NOVEMBER 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN ADELAIDE

Hearing continuing

PN1

MR CASPERSZ: I appear together with my learned friend, MR Y FINGER, on behalf of the applicant, CSBP.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Caspersz. I must say I am a little handicapped at the moment because I am not yet able to see you, but perhaps you could wave your hand around so I know who it is, thank you. Can I presume you are seeking leave?

PN3

MR CASPERSZ: I am seeking leave, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN5

MR CASPERSZ: And my learned friend, Mr Finger, is sitting across the table from me.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN7

MR J NICHOLAS: I appear on behalf of the LHMU.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nicholas, do you need to seek leave too?

PN9

MR NICHOLAS: I am actually an employee of the union.

PN10

THE SENIOR DEPUTY PRESIDENT: Very well. Now, Mr Nicholas, what is your position in relation to Mr Caspersz application for leave to appear?

PN11

MR NICHOLAS: We don't consent at this point to leave being given.

PN12

THE SENIOR DEPUTY PRESIDENT: All right, thank you. And for the AMWU, I have?

PN13

MR D McLANE: If the Commission please I appear on behalf of the AMWU and I likewise, sir, object to the appearance of Mr Caspersz/

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McLane. And for the CEPU?

PN15

MR L EDMONDS: I appear on behalf of the CEPU. The CEPU also, sir, does not consent to the appearance of counsel in these proceedings, sir, given the unavailability, sir, of 42(3)(a) for the applicant to appear by way of counsel, sir. We simply reserve our position with respect to 42(3)(b) and (c), sir.

PN16

THE SENIOR DEPUTY PRESIDENT: Very good, thank you. Mr Caspersz, are you in a position to address me as to why it is I should grant leave to you to appear in accordance with section 42?

PN17

MR CASPERSZ: Yes, thank you, your Honour. My submissions are as follows. First, it is clear from the application that it has been brought on at some speed. The nature of the application itself being an application for orders under section 127. Section  127 itself contemplates that the Commission must discharge its obligations under those provisions as quickly as possible. In all of the circumstances, your Honour, it is simply from the applicant's point of view most desirable that it be represented by counsel.

PN18

The nature of the circumstances and the importance of the matter to the applicant are such that it cannot at its best interest advance, in my submission, without counsel being available. To the extent that the other parties have not been able to organise counsel themselves that is something which happens quite often in circumstances such as this, your Honour.

PN19

If, however, the Commission is persuaded that the matter is sufficiently of such a nature that its discretion should be exercised in favour of the applicant, then that should not stop the Commission from proceeding. But certainly insofar as leave to appear is concerned my submissions would be based on sections 42(3)(b) and (c) of the Act given the nature of the subject matter and the circumstances that counsel should be granted leave to appear.

PN20

THE SENIOR DEPUTY PRESIDENT: Can I just clarify that? Are you saying that the circumstances of this matter meet the dictates of 42(3)(b) and (c) or are you saying either of those would apply? You haven't given me a great deal of information as yet, Mr Caspersz.

PN21

MR CASPERSZ: Yes. In my submission, your Honour, either of those would apply. It really needs an examination of the equal circumstances which I would seek to do obviously in terms of leading evidence and submissions as to why in particular the matter is of such importance to the applicant and it is simply the circumstances and speed with which the matter has come on.

PN22

The fact of the matter, your Honour, is that and part of the evidence will be that the applicant is seeking orders from the Commission which will have effect before 6 o'clock this afternoon in order to avoid shutdowns of certain plant which if shut down will have severe ramifications not only for the applicant but the evidence in the submissions will be in relation to other persons - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, can I interrupt you there. I am a little handicapped as indeed you are too because this hearing is being conducted by way of a video link. When you turn too far toward the camera I am tending to lose audio reception. Now, I am a little loath to move that triangular microphone too far your way because I may not be able to hear the other parties, so I am happy for it to remain there for the moment but it will need to be put back shortly and the other observation I would make given where that microphone is you will need to be careful in that if you turn a page adjacent to it we will bet a clap of thunder. Yes, if you can continue, thank you.

PN24

MR CASPERSZ: Thank you, your Honour. I will do my best under the circumstances, your Honour, if you will bear with me. Your Honour, I should also say that it is apparent in my submission from the face of the application evidence and submissions will be made in relation to this as well that the industrial action or the alleged industrial action is taking place in breach of a certified agreement of the Commission and is also potentially in breach of other provisions of the Workplace Relations Act such as section 170MN and section 170NC. That clearly raises legal issues as well which in all the circumstances the applicant cannot be adequately represented without the assistance of counsel.

PN25

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, I am going to grant you leave pursuant to section 42(3)(b). I do so with a significant caveat. The three unions are advised that I am prepared to entertain a request for an adjournment in the matter should either or any of those unions consider they are disadvantaged by virtue of not being able to access legal advice. There is a secondary caveat in relation to that possibility of an adjournment. In seeking an adjournment the unions would need to be well aware of the extent to which whilst I may grant an adjournment any such delay in the proceedings may of itself precipitate an interim order pursuant to section 127(3)(a). We will cross that bridge when we need to cross it, but the parties are at least aware of the direction I am likely to follow in the matter. You may proceed, Mr Caspersz.

PN26

MR CASPERSZ: Thank you, your Honour.

PN27

MR EDMONDS: Sir, I wonder if I could say something at that point in time, sir. I only received this application some 25 minutes ago.

PN28

THE SENIOR DEPUTY PRESIDENT: You are Mr Edmonds, is that right?

PN29

MR EDMONDS: That is correct, sir.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN31

MR EDMONDS: I only received this application 25 minutes ago, sir, it is probably getting on to 40 minutes ago now, but I have been in this hearing for the last 20 minutes and haven't had an opportunity to take full instructions on the issues. Now, I am concerned I suppose by the comments from my friend and indeed I am concerned as to the applications potential breach of section 170NC of the Act because of the serious implications I suppose which flow out of a breach of that section of the Act and perhaps it maybe possible to have a brief adjournment to seek some further instructions in relation to that issue and perhaps consult with my friends on that matter.

PN32

THE SENIOR DEPUTY PRESIDENT: Mr Edmonds, I am very likely to grant you an adjournment but at this stage you probably know more about the matter then I do and there might be some benefit in giving Mr Caspersz the opportunity to outline the various concerns which the employer says underpin the need for an order of the nature sought and I propose to allow that to happen so that at least we all have a common understanding of the employer position.

PN33

MR EDMONDS: Certainly, sir.

PN34

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz?

PN35

MR CASPERSZ: Thank you, your Honour. Your Honour, the application has been made by CSBP and been filed in the Commission I think around midday and I trust that your Honour has got a copy of it?

PN36

THE SENIOR DEPUTY PRESIDENT: I have.

PN37

MR CASPERSZ: Thank you, your Honour. The application does set out terms of the order which has been sought as well as the essential grounds which the application is made upon. Your Honour, my submissions really come down to two propositions. First, that there is industrial action taking place and there is industrial action which is threatened and is likely to happen sufficient to establish the jurisdictional facts under section 127 of the Act.

PN38

Second, and the evidence in my submission which the applicant will lead will support this, the action in all the circumstances is illegitimate for a variety of reasons. First, it is not protected industrial action, second, it is action which has taken place in respect of persons who are bound by the certified agreement which is referred to in the application that being the CSBP Limited Enterprise Agreement 2003.

PN39

THE SENIOR DEPUTY PRESIDENT: I have a copy of that, Mr Caspersz.

PN40

MR CASPERSZ: Thank you, your Honour. That is an agreement which I am instructed has a nominal expiry date September 2006. In my submission, and the evidence will support this, the industrial action which has taken place is potentially in breach of section 170MN, subsection (1) of the Workplace Relations Act insofar as the industrial action is in breach of clause 4(v) of the agreement which I invite your Honour to have regard to. Essentially, it is a no extra claims clause. So the bottom line is that the first reason which the company will contend that the industrial action is illegitimate is because it is in breach of section 170MN of the Act.

PN41

The evidence will be also that despite service of section 170MI notices by two of the unions before your Honour today, mainly the CEPU and the AMWU, no section 170MO notices of intention to take protected industrial action has been given. The 170MI notices, your Honour, I understand have been faxed through to your Honour's chambers. The other parties at the bar table are aware of that.

PN42

THE SENIOR DEPUTY PRESIDENT: I have MI notices with respect to the CEPU dated 20 September 2005 and signed by Mr WE Game and I have an MI notice with respect to the AMWU. I am not able to decipher the signature but it is dated 20 September 2005. Are they the documents you are referring to?

PN43

MR CASPERSZ: Yes, indeed, thank you, your Honour.

EXHIBIT #C1 CEPU NOTICE
EXHIBIT #C2 AMWU NOTICE

PN44

MR CASPERSZ: Your Honour will note or see from those notices that common to both notices is the ..... which the two unions propose you deal with in the certified agreement which they are seeking. I will just move this microphone.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN46

MR CASPERSZ: It concerns something called retention money. If I might just explain that your Honour and the evidence will further clarify this. One issue which is in the background to this industrial action is the fact that the company has in order to retain certain highly qualified technical staff at two of its plants which produce ammonia and ammonia nitrate at its Kwinana industrial complex in West Australia has been to recently offer these employees retention money as it has been stated. Effectively paying them in order to encourage them to stay in employment with the applicant.

PN47

THE SENIOR DEPUTY PRESIDENT: The ammonia plant is a separate plant to this one, is that the case?

PN48

MR CASPERSZ: Yes. There are three plants, your Honour, which will be the subject of the evidence. There is a chlor-alkali plant effectively producing chlorine. That is operated by persons who are members of the LMHWU. On each shift I understand there are four of those persons. The shift is running from 6 o'clock in the morning until 6 o'clock at night. In addition to those four operators, there is one AWU maintenance person and one CEPU person who are rostered on the day shift. For the night shift there are call out mechanisms in order to bring maintenance persons in if necessary.

PN49

The second plant and before I go on, your Honour, the evidence will be that the chlor-alkali plant produces chlorite and chlorine. Both products are used by the Water Corporation in West Australia for amongst other things to be added to the drinking water for the Perth water supply. The second plant is an ammonia plant which produces ammonia which once again is operated by a combination of LHMWU persons. On each shift there is approximately four of those persons I am instructed. And then you have the same maintenance arrangements, one AMWU person and one CEPU person on the day shift with call out arrangements for the night shift.

PN50

That plant amongst other things produces feed stock for a third plant which is the ammonium nitrate plant. My instructions being, your Honour, that that plant once again is operated similarly by operators, members of the LHMWU with the similar sort sought of maintenance arrangements. The ammonia plant, your Honour, and this cuts to the chase as to why there is urgency in these proceedings is a plant which needs if it is shut down something like three to four days to start up again. My instructions being that the industrial action which is taking place and threatened to take place will manifest itself in a failure by persons who are rostered to attend work at that plant and the other two plants that I have mentioned commencing at 6 o'clock this afternoon.

PN51

As far as the ammonia plant is concerned if those persons do not attend for work that plant will commence and go through a process of shut down, once it is shut down it will take three to four days to start up again. I am instructed that current levels of ammonia stockpiles or feed stock which has gone into the ammonia nitrate plant is such that current levels of ammonia nitrate stockpiles are low.

PN52

If there is a shutdown of the ammonia plant and reduction of feed stock into the ammonia nitrate plant that in turn will lead to a situation and the evidence will clarify this where I am instructed that it will become necessary for the company to bring a ship to Kwinana with ammonium nitrate at a cost I am told of around about $4.5 million. That is one of the immediate consequences if the ammonia plant is shut down as a result of the industrial action because the feed stock will not continue into the ammonia nitrate plant.

PN53

THE SENIOR DEPUTY PRESIDENT: How does this ammonia nitrate plant impact on the provision of chloride and chlorine for the water supply? Or is it the case that that is simply a product or a second product of that chloride alkali plant?

PN54

MR CASPERSZ: They are separate plants as far as I am instructed, your Honour, and the evidence hopefully will clarify this.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN56

MR CASPERSZ: Your Honour, so far I have spoken of, as I am instructed, three different plants. The chlor-alkali plant, second, the ammonia and third the ammonia nitrate plant. The retention money, coming back to that issue, your Honour, the evidence will be it has been paid to the operators of the two ammonia plants because the equipment in those two plants is particularly specialised. People require, I am instructed, a substantial period of training of around about two years perhaps as long as that in order to come up to speed with that sort of training.

PN57

Because of the current economic climate in West Australia particularly the demand for specialised skills in North West of Australia, the applicant has experienced considerable difficulty in retaining employees with these skills. To use the common term, they have been poached by other employers particularly in the North West of Western Australia with great consequence and substantial impact on the applicant's operations in Kwinana. Hence the applicant's decision to pay this particular group of employees, of operators, who I understand are members of the LHMWU, the retention money. That is one issue which forms the background to the industrial action.

PN58

There are a variety of other issues, your Honour, as well which are set out in a letter which I am also instructed has been faxed to your chambers. It is I think a five to six page letter from the company to the unions. I would enquire whether your Honour has received that.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, I have received a letter. I have yet to have a look at it. The first page of the document that I have received is an open letter to all CSBP employees dated 3 November 2005. The second page is a letter to a Mr Shane O'Reilly of the ALHMWU and that is indeed some eight pages long.

PN60

MR CASPERSZ: Yes, thank you, your Honour. I will invite your Honour to - - -

PN61

THE SENIOR DEPUTY PRESIDENT: Just bear with me for one moment. There is a further document which is a table attached to that letter that consists of some one, two pages and finally there is a letter from your firm of today's date to the CEPU.

PN62

MR CASPERSZ: Yes, thank you, your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: And lastly I have a document headed Union negotiation committee memorandum. It is dated 3 November.

PN64

MR CASPERSZ: Thank you, your Honour. Can I perhaps work backwards just very quickly to clarify what those documents are and the evidence will clarify this further. The last document being the internal memorandum was the most recent document which preceded the industrial action this morning. Clarification will be given of that document by the company's witness who will be Mr David Allen the operations manager.

PN65

The document from Blake Dawson Waldron which is the one I think preceding that document was one which was sent to the unions I think at around about 1 o'clock this afternoon, 1.30 this afternoon Perth time together with a copy of the application. Your Honour will note in particular the last paragraph of that document which seeks an undertaking - - -

PN66

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Caspersz, you need to be very conscious of moving that microphone. We lose the ability to understand anything that anyone is saying if people are talking whilst the microphone is being moved and particularly placed down awkwardly. You will need to repeat what you have just told me, I am sorry, I completely lost the ability to understand what you are saying.

PN67

MR CASPERSZ: Thank you, your Honour. I had finished addressing your Honour briefly in relation to that last document which is the internal memorandum and I was directing your Honour's attention if I might to the letter from Blake Dawson Waldron to CEPU.

PN68

THE SENIOR DEPUTY PRESIDENT: Can I just take you back to the memorandum for a moment? I take it you say to me that that memorandum is from a Mr or Ms Searle. Who do you say to me Mr or Ms Searle is?

PN69

MR CASPERSZ: I understand that Mr Searle is one of the union organisers or delegates, your Honour.

PN70

MR NICHOLAS: Your Honour, Mr Nicholas for the LHMU.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Nicholas.

PN72

MR NICHOLAS: Mr Searle is a delegate of the LHMU.

PN73

THE SENIOR DEPUTY PRESIDENT: I see. Perhaps while you are talking Mr Nicholas, is there any dispute over the authenticity of that document, because if there is, I will simply mark it for information purposes now pending clarification later?

PN74

MR NICHOLAS: Your Honour, I don't have instructions on this document as yet. It is the first time I have seen it.

EXHIBIT #MFI1 UNION NEGOTIATING COMMITTEE MEMORANDUM

PN75

MR CASPERSZ: Your Honour, can I direct your attention to the Blake Dawson Waldron letter which is to the CEPU?

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR CASPERSZ: My instructions are that exactly the same letter was sent to the LHMWU and the AMWU. For current purposes, your Honour, simply to note the last paragraph where the solicitors for CSBP sought an undertaking from each of the unions in those terms. My instructions are, and clearly the reason why we are here before the Commission is that that undertaking was not given and has not been. Can I then take your Honour to the next document.

EXHIBIT #C3 BLAKE DAWSON WALDRON LETTER DATED 4/11/2005

PN78

MR CASPERSZ: If I can then take your Honour to the other two documents which I understand your Honour has. That is the open letter to employees as well as the big letter from CSBP of 3 November.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. You do need to bear in mind I have not read those documents, they have just been handed to me.

PN80

MR CASPERSZ: Yes, thank you, your Honour. I don't intend to take your Honour through all of the detail at the moment. Once again some of that will come out in the evidence, your Honour, but just to note that that document, on my instructions, addresses a number of the issues which form part of the background to the industrial action which is taking place at the moment and which is threatened to continue to take place.

PN81

Amongst other things issues relating to alleged safety risks which the company says have no substance at all. Issues relating to manning. Once again which the company says has no substance. Issues relating to the drug and alcohol policy and I believe the background table or the table which is attached to that letter actually addresses the various steps taken by the company in relation to consultation and discussion about that policy in respect of which there has been no agreement.

PN82

Other issues as well, and particularly if I can take your Honour to what I believe is page 3 of the eight page letter under the heading Performance review process. Your Honour will see that there has been whited out a section there, three quarters of the way down. That has been on the basis that the company doesn’t rely on what was said in the letter in that particular place my instructions being that that part of the letter actually recounted what had happened in a conference in the Commission in relation to that particular issue so consistent with the principles that conference proceedings remain confidential that has been whited out in the letter.

PN83

THE SENIOR DEPUTY PRESIDENT: Can I just interrupt you there. You referred to a conference in the Commission, who was that conference before?

PN84

MR CASPERSZ: My instructions are that that was a conference before Commissioner Thatcher, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN86

MR CASPERSZ: That was a conference which was actually initiated by the company under section 170LW of the Act pursuant to the grievance procedure in the certified agreement which discussed most if not all of these issues including the retention bonus issue. That conference was unsuccessful in resolving any of these issues.

EXHIBIT #C4 LETTER TO MR O'REILLY

PN87

MR CASPERSZ: The final point in relation to the letter particularly, I will just ask your Honour to have regard to when our Honour is able to. It commences at page 6 of the letter under the heading Unlawful industrial action. Following on from there that recounts the action which the company contends has been unlawful action once again forming part of the background to what has occurred up until today and then finally, your Honour, on page 7, the last paragraph in particular going on to page 8 of the letter which clearly states the company's view that it remains prepared to discuss any legitimate workplace issue, the company's problem fundamentally being that there is no need for and there should not be any industrial action which is undertaken in the meantime in particular industrial action which is taking place at the time .....

PN88

The open letter to employees, your Honour, I understand is a letter which has been sent to employees together with a copy of this letter which has been sent to the individual unions as well.

EXHIBIT #C5 OPEN LETTER TO EMPLOYEES DATED 3/11/2005

PN89

MR CASPERSZ: Your Honour, very quickly if I can then just try and conclude the outline of the company's position. I have already mentioned section 170MN of the Act. The company's contention is that in addition to that the section 170MI notices which your Honour has before him as will further be clarified in the evidence and this issue of the retention bonus also brings into play a potential breach of section 170NC(1) of the Act which your Honour would be well familiar with.

PN90

That in short being in the company's contention that part of what is going on here at least part of what is going on here is an attempt by the unions and the employees in question to coerce the company to making an agreement in relation to that retention bonus issue and for that reason to the industrial action taking place is illegitimate.

PN91

Further, the company would contend that the appropriate way for the union to progress any grievances which it has is through the grievance procedure in the certified agreement. The company has already attempted to do that itself through section 170LW proceedings, that avenue is still open and it is illegitimate for the union - - -

PN92

THE SENIOR DEPUTY PRESIDENT: Where do you say the matter before Commissioner Thatcher is at the present time, Mr Caspersz?

PN93

MR CASPERSZ: On my instructions, your Honour, it has been adjourned sine die as far as I can tell and there being no satisfactory resolution the next event relevant at least since then has been this industrial action today.

PN94

THE SENIOR DEPUTY PRESIDENT: When you say it has been adjourned sine die, presumably there has been a conference or a conciliation proceeding before Commissioner Thatcher, but should I understand that consistent with clause 19 of the agreement there has been no proposal for the matter to be the subject of an arbitrated outcome?

PN95

MR CASPERSZ: That is my understanding, your Honour. My instructions are that even though there was conciliation it was undertaken with a qualification by one more of the unions that they did not concede the jurisdiction of the Commission to take the matter any further and it has been left on that basis in that particular state.

PN96

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN97

MR CASPERSZ: I am sorry I can't assist your Honour with any particulars as to why the jurisdictional question has been raised.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Is there anything further by way of background, Mr Caspersz?

PN99

MR CASPERSZ: Only to say this, your Honour, and finally, in the company's contention, the prejudice is quite apparent not only to the company and third parties and the public interest in fact given the drinking water issue of this industrial action, there is actually no prejudice to the unions or their members if they are to progress this matter in what the company says is a proper way, and that is through discussions. In the meantime there should be no industrial action. It is a circumstance where, and I am aware that I have been speaking for some time your Honour but I am trying to assist your Honour in terms of the documents, it is circumstances where in the company's contention it is of extreme urgency that the orders which the company seeks are made particularly given the logistical issues of service upon the various persons involved. Unless I can be of assistance, your Honour, that is all I need to say at this time.

PN100

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, there is one other issue by way of background. Is there any document which establishes that the employees intend to actually cease work this evening or is it simply verbal advice.

PN101

MR CASPERSZ: Your Honour, my instructions are that it is verbal advice and Mr Allen in particular can give direct evidence of that and he is the witness for the company. I don't know whether it is an issue by the way, your Honour, I haven't had a chance to canvass with my client.

PN102

THE SENIOR DEPUTY PRESIDENT: I don't either, I am just in the business of finding out some information at this stage.

PN103

MR CASPERSZ: The company has as I have already advised your Honour, sought those undertakings in the letters from the solicitors and those undertakings have not been given so the company is inferring from all of the circumstances that the industrial action is continuing.

PN104

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, Mr Edmonds, that background information may or may not assist you, but if you want to renew your request for a brief adjournment now is perhaps the best time to do it.

PN105

MR EDMONDS: Yes, sir, thank you, sir. Sir, if we could have that opportunity so myself and my friends can have a brief discussion and perhaps seek some further advice from the stewards that are able to be present.

PN106

THE SENIOR DEPUTY PRESIDENT: All right. Can I ask that in doing so you take on board a number of factors. Clearly it maybe the case that you need to obtain information about the background information provided by Mr Caspersz about which you may well be in dispute but depending on the information that you come back with in that regard can I suggest that you might also obtain instructions as to the specific jurisdictional prerequisites that exist in order for me to consider an order pursuant to section 127.

PN107

Furthermore, that you might give some specific consideration to the issue of the discretion that would then be enabled in the event of a finding that I have the jurisdiction to consider a section 127 order and thirdly if there is any substantive debate over those issues such that you argue about either the jurisdictional basis or indeed the exercise of any discretion that you give some consideration to the extent to which I should or should not make an interim order pursuant to section 127(3)(a) of the Act.

PN108

I need to make it absolutely clear to you I have not reached any conclusion in that regard I am simply in the business of trying to use our time as efficiently as possible and minimising the number of adjournments that we might need to seek.

PN109

MR EDMONDS: Yes, sir.

PN110

THE SENIOR DEPUTY PRESIDENT: Do you have any need to clarify the questions that I have raised with you in that regard?

PN111

MR EDMONDS: No, sir that is fine, thank you, sir.

PN112

THE SENIOR DEPUTY PRESIDENT: All right. Now, Mr Nicholas, do you want to say anything to me before this adjournment or are you happy to wait and hold your fire until after the adjournment?

PN113

MR NICHOLAS: Certainly, your Honour, we prefer just to adjourn now and come back after a break.

PN114

THE SENIOR DEPUTY PRESIDENT: You have got no questions of clarification for me because the same issues that I have raised with Mr Edmonds apply equally to your union.

PN115

MR NICHOLAS: Absolutely, your Honour.

PN116

THE SENIOR DEPUTY PRESIDENT: Mr McLane, are you in the similar position?

PN117

MR McLANE: I am, sir.

PN118

THE SENIOR DEPUTY PRESIDENT: All right. I will adjourn the matter. Will 10 minutes be a reasonable sort of timeframe?

PN119

MR EDMONDS: Yes, sir.

PN120

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter on that basis. I need to advise the parties that I don't intend at this stage to close the video link so could I suggest that Mr Caspersz we charge you with the responsibility of pushing the little red button in the middle of that vexed triangular microphone whereupon the microphones will be muted.

PN121

MR CASPERSZ: Thank you, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: All right. I will adjourn the matter on that basis.

<SHORT ADJOURNMENT [6.17PM]
<RESUMED [6.32PM]

PN123

THE SENIOR DEPUTY PRESIDENT: Perhaps before I ask the unions to respond I just wanted to ask a further question of clarification of you, Mr Caspersz. Should I understand that the industrial action that is being talked about here only applies to that chlorine alkali plant?

PN124

MR CASPERSZ: No, your Honour. The industrial action on my instructions applies to employees who are rostered to work on all three of those plants.

PN125

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, who wants to go first in terms of the unions?

PN126

MR CASPERSZ: I am sorry, your Honour, before my friends start I am instructed in fact that it is even in relation to other parts of the site but it is these three plants in particular which are of primary concern to be urgent in connection with the proceedings. The complex actually I am told has got other plants on it as well producing other sorts of chemicals but it is these three plants of major concern. I was also instructed during the break, your Honour, that there are pickets as well which are impeding ingress and egress of trucks in particular into the complex in relation to these plants and evidence will be given to clarify that as well.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, which of the unions wants to go first?

PN128

MR EDMONDS: Yes, sir, Edmonds on behalf of the CEPU.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Edmonds.

PN130

MR EDMONDS: Sir, in the first instance by way of a bit of a potted history as to what has occurred there in the past. The company and the unions are having discussions over a new certified agreement to replace the current certified agreement but we say that those discussions and those attempts to reach agreement on a new certified agreement are not related to any alleged industrial action at this point in time. We say that in parallel to those discussions there has been a number of other issues over which the unions and the workforce have been seeking resolution with the company and those I suppose could be characterised as domestic issues and include safety issues, include allegations of bullying and harassment.

PN131

THE SENIOR DEPUTY PRESIDENT: Are these issues, Mr Edmonds, that are referenced in the document that I marked C4?

PN132

MR EDMONDS: I believe they are, sir.

PN133

THE SENIOR DEPUTY PRESIDENT: I am not asking you to necessarily to agree to the company's position in C4, but should I understand that C4 represents a synopsis of the subject matter that is in debate?

PN134

MR EDMONDS: If I could perhaps say, sir, that some of the issues located in C4 are some of those domestic issues that are an issue between the parties.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes.

PN136

MR EDMONDS: We would say that those domestic issues have been subject to discussions between the parties and we say that there has been no resolution of those issues and there is frustration on the part of the workforce at the unwillingness on the part of the company to resolve those issues.

PN137

We would also say that there has been a stoppage today, but that the reason for that stoppage is related to the company's unwillingness to resolve those domestic issues and we say to that extent the company doesn't come here with clean hands, that they are not engaging with those issues in good faith and are not attempting to resolve those issues and are indeed exacerbating those issues and it is creating a difficult and indeed unsafe workplace for the workers.

PN138

THE SENIOR DEPUTY PRESIDENT: Can I just stop you there Mr Edmonds because if indeed C4 represents the suite of issues or some of the issues that are in debate between the parties then not all of the matters in C4 relate to safety issues.

PN139

MR EDMONDS: That is correct, sir. What I am saying - - -

PN140

THE SENIOR DEPUTY PRESIDENT: Are you saying to me that the sole reason for the industrial action, which I presume you are saying is not protected industrial action is - - -

PN141

MR EDMONDS: No one is saying that there has been any action once an MO notice has been put in, sir, and we say that it is not related to - - -

PN142

THE SENIOR DEPUTY PRESIDENT: Let me go back a step. Do you say to me there is protected industrial action that has occurred today or is occurring at the present time?

PN143

MR EDMONDS: No.

PN144

THE SENIOR DEPUTY PRESIDENT: All right. As I understand you, you are saying that there is some form of industrial action currently occurring.

PN145

MR EDMONDS: Correct.

PN146

THE SENIOR DEPUTY PRESIDENT: Should I understand that the entire reason for that action which is unprotected relates to safety issues?

PN147

MR EDMONDS: No, sir, I am not saying that, sir, I am saying that safety issues form part of the reasons for the industrial action.

PN148

THE SENIOR DEPUTY PRESIDENT: All right. Well, let's deal with the safety issues first of all. In terms of those safety issues, has the Western Australian safety authority, WorkSafe, been involved in the resolution of those matters?

PN149

MR EDMONDS: I understand, sir, on my instructions, WorkSafe have been advised of those issues, sir, and indeed WorkSafe were actually due to visit the site this morning to inspect the site about those safety issues but given the ..... that took place this morning I understand that that inspection did not take place.

PN150

THE SENIOR DEPUTY PRESIDENT: I see. Should I understand then that some form of prohibition notice has been issued in relation to certain functions being undertaken by employees?

PN151

MR EDMONDS: I don't have instructions on that issue, sir.

PN152

THE SENIOR DEPUTY PRESIDENT: Well, you see your West Australian legislation requires people to continue working unless there is some form of prohibition notice. I am trying to establish what action has been taken consistent with the Western Australian health and safety legislation in that respect.

PN153

MR EDMONDS: Sorry, sir, are you attempting to establish, sir, whether the jurisdiction exists in these circumstances to issue a 127 order, we would say
that - - -

PN154

THE SENIOR DEPUTY PRESIDENT: No, I am not at this stage, Mr Edmonds, I am just trying to establish the facts of the matter so far as they can be agreed and as I am understanding what you are telling me there are two types of issue which have given rise to the current industrial action. One type of issue relates to safety matters and one relates to other issues.

PN155

MR EDMONDS: Correct.

PN156

THE SENIOR DEPUTY PRESIDENT: Now, in terms of safety issues I am just trying to establish where those matters are at given that most section 127 orders preclude from the definition of prohibited action, actions that might be taken by employees who are concerned about risks to their own safety. In addition to that the legislation in West Australia requires that employees continue to work on the basis that there are very clear processes that are to be implemented in order to enable work to stop where an employee believes there is a clear risk to his or her safety.

PN157

MR EDMONDS: With respect, sir, the state legislation in West Australia does not require that an employee work in the circumstances where they believe there is an imminent risk to their health and safety, indeed, quite the contrary. The West Australian legislation - - -

PN158

THE SENIOR DEPUTY PRESIDENT: I understand that, and if I mislead you in that regard I clearly understand that to be the case. I am trying to establish what steps have been taken by employees who may have concerns about imminent risk to their own health and safety.

PN159

MR EDMONDS: Well, I don't have instructions on that specific issue.

PN160

THE SENIOR DEPUTY PRESIDENT: I see, all right. We will park that matter to one side and let's move to the issues of a non-safety nature which you say might underpin the action that is currently occurring.

PN161

MR EDMONDS: Yes. There are a number of issues, sir, and indeed some of them are outlined in correspondence that has been marked C4, sir, but I don't have instructions whether that correspondence covers the full gamut of those issues but I suppose the point I am making, sir, is that we say that any industrial action that maybe occurring is not related to any attempts to negotiate or any discussions over a new certified agreement.

PN162

THE SENIOR DEPUTY PRESIDENT: I see, all right. Well, if the entirety of the matters that underpin the current industrial action fall into the category of safety issues or other issues which may or may not be covered within C4, then where do you say is the licence for that industrial action to occur given particularly that in terms of that suite of other issues which may or may not be covered in C4 there appears to me to be the capacity which is set out very clearly in clause 19 of the agreement to have those matters resolved through a graduated dispute resolution process which culminates in arbitration before the Commission.

PN163

MR EDMONDS: Well, sir, no one I think is standing in front of you today and claiming that that action is protected by any sense or by any argument. What we are saying, sir, is that the applicant is not entitled to orders in these circumstances because we say they don't come here with clean hands.

PN164

THE SENIOR DEPUTY PRESIDENT: I see.

PN165

MR EDMONDS: That is something that we have to establish that there is conduct on their part which disentitles them to an order. Now, I suppose the next extension of that is that we are not in a position to lead that evidence today, we simply haven't had enough time to take instructions on those issues and to prepare a cross-examination nor to prepare examination-in-chief of any of our witnesses but we say that we do have a defence to the application in these circumstances and we say that that is a valid defence.

PN166

THE SENIOR DEPUTY PRESIDENT: So can I put that in my words to make sure that I have understood you correctly. In terms of the jurisdictional pre-requisites that must be met so as to enliven the discretion in section 127 you say there is no argument that industrial action is happening, threatened, impending or probable and that that action is in relation to work which is regulated by, in this instance, a certified agreement.

PN167

MR EDMONDS: That is correct, sir.

PN168

THE SENIOR DEPUTY PRESIDENT: Having established those jurisdictional pre-requisites I ought not to exercise that jurisdiction in favour of the order that is sought because of your concerns that the company is not reasonably participating in a dispute resolution process consistent with clause 19 of the certified agreement. Is that the case?

PN169

MR EDMONDS: That is correct, sir.

PN170

THE SENIOR DEPUTY PRESIDENT: All right. Then if what you are saying is I ought to provide an opportunity or time for the unions to prepare a case which is predicated on the argument that I should not exercise the discretion in section 127 then a couple of issues arise. First of all if you wish to pursue that argument as I foreshadowed to you, you will need to tell me why I should not countenance an interim order pursuant to section 127(3)(a), but before you even get to that there appears to me to be a fundamental question here and it is one that I am struggling with.

PN171

If we continue down the path that you appear to be proposing you will go away and put a great deal of effort into mounting an argument as to why it is that I should not issue orders. It is difficult for me to see how all of that effort actually contributes to the resolution of that suite of issues about which you are in dispute. It is effort devoted to the question of whether or not an order should be issued. The issuance of an order by itself is not going to resolve the matters in dispute.

PN172

MR EDMONDS: That is correct, sir.

PN173

THE SENIOR DEPUTY PRESIDENT: And it seems to me that given all that I have heard so far this afternoon, that the opportunity exists for the unions and indeed the employer, to consider some form of very clear understanding about how these issues will be resolved and were such an understanding to be reached the unions could give a commitment which would ensure that any industrial action currently occurring cease immediately and not be resumed. Now, it seems to me that that option which I am simply putting to you for consideration has the potential to advance the resolution of the various matters you are in dispute over whereas the alternative prospect of spending the better part of your collective weekends giving some thought to why it is that I should or should not exercise the discretion in section 127 doesn't really seem to be doing much of a favour in terms of the resolution of the matters that you are in dispute over.

PN174

Now, to take that a step further, the sort of approach that you could logically consider would have as a starting point clause 19 of the agreement and might involve some identification of exactly where you are up to with each of the matters in dispute within a nominated timeframe, so that for instance you might be in a position to agree that by a given date for instance Tuesday of next week, the parties would have documented each of the various concerns that they have. And as you have said those concerns aren't related to the notice of initiation of a bargaining period by for instance and I stress the for instance because I am simply trying to exemplify the concept that I am talking about by Thursday of next week you could have then had the discussions of the nature referenced in clause 19(1)(iii) and clause 19(1)(iv).

PN175

If those matters were not resolve within that timeframe, the parties could then agree to take the matter back to the Commission. You might simply seek to expand upon the section 170LW application before Commissioner Thatcher or it might be there is a need for a new application. I could certainly indicate to you that I would be happy to talk with Commissioner Thatcher in order to inform him to the background to the matter so that whatever conciliation request might be put to him would be actioned as quickly as he could manage it and the parties might then agree that any issues that were not resolved before Commissioner Thatcher in a conciliation proceeding maybe the subject of arbitration.

PN176

Now, that concept is directed at the, if you like, the non-safety issues. The parties would need to under this model agree to a similar approach in terms of the resolution of the safety issues. WorkSafe WA may well assume a pivotal role in that regard and again if needs be I am happy to assist in that respect but it does seem to me that this option that I am putting to you in devoting the effort at the resolution of the dispute on the basis that there is a clear and unequivocal undertaking that the industrial action cease and not recommence represents a positive step forward rather then a deal of effort directed down a side alley. Now, obviously that prospect hasn't been raised with the employer but I wonder whether you might be in a position to respond to that suggestion, Mr Edmonds.

PN177

MR EDMONDS: Sir, I think that that would be a good way to proceed. Unfortunately, I don't have an organiser here, sir, so I can't say with certainty the period of time it would take the CEPU to try and get a return to work. My understanding is that there is a meeting scheduled for Monday morning.

PN178

THE SENIOR DEPUTY PRESIDENT: That would presume that if something may or may not happen over the weekend, is that the case?

PN179

MR EDMONDS: Well, if there was a willingness I suppose on the part of the employer to engage productively in the resolution of the outstanding grievances, then I think that we could certainly recommend to the workers on Monday morning that there be an immediate return to work.

PN180

THE SENIOR DEPUTY PRESIDENT: Maybe you do not understand me. I want to know what you could do immediately and that is within the next half an hour to effect the cessation of any industrial action because you see if you can't do anything immediately then that moves us inevitably back to the debate about the extent to which an order should be issued on the interim basis pursuant to section 127(3)(a). I am not presuming any outcome in that regard, but I am simply saying that is where the debate goes.

PN181

MR EDMONDS: Sure. Sir, I can try and take some instructions on that issue, sir, but I think the likelihood of being able to affect a return to work in the next half an hour or indeed before Monday would probably be quite difficult from our perspective.

PN182

THE SENIOR DEPUTY PRESIDENT: Is it worth me giving you a couple of minutes to try that path?

PN183

MR McLANE: Sir, if I may - - -

PN184

THE SENIOR DEPUTY PRESIDENT: Is this Mr McLane is it?

PN185

MR McLANE: It is sir, McLane from the AMWU.

PN186

THE SENIOR DEPUTY PRESIDENT: The picture is not altogether clear Mr McLane, so I sometimes have difficulty working out who is speaking.

PN187

MR McLANE: I apologise for that, sir.

PN188

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN189

MR McLANE: Sir, I am not really able to shed much more light then my learned friend Mr Edmonds. I have had the opportunity though during the brief adjournment to get some instructions from an organiser on the job, Mr Tracey. Mr Tracey informed me that he had arranged a meeting with the company and with the officials of the other unions as well on the job, the organisers, at 3.30 this afternoon to attempt to resolve some of these issues. Mr Tracey attended the site as agreed to have those discussions and was told to leave and that the discussions wouldn't take place. Mr Tracey has also informed me just prior to coming here, sir, that he is relatively confident that if some progress can be made in relation to the issues, not the lot resolved, but some progress be made in relation to the issues that there may well be able to be a return to work brought about on that basis.

PN190

Now, we are willing to attempt to resolve those issues. Mr Tracey is available to meet with the company this afternoon, tonight, and tomorrow morning if necessary to attempt to bring that about.

PN191

THE SENIOR DEPUTY PRESIDENT: You see, Mr McLane, that is positive but time is marching on. Unless we can find a way of bringing the industrial action about which there appears to be no dispute in that it is occurring to an imminent halt then we will need to devote the limited time we have available to the question of whether or not I should issue an interim order.

PN192

MR McLANE: Yes, sir.

PN193

THE SENIOR DEPUTY PRESIDENT: And that is why I am very happy to give you a very brief time to explore that option, namely of the union's bringing the action to a halt of their own volition, but I am not in a position to give you a great deal of time without going into that debate over the operation of section 127(3)(a).

PN194

MR McLANE: Yes, sir, I understand and I am totally in accordance with the submissions of Mr Edmonds. We readily fess up sir and say the jurisdictional basis for it does exist but I would also attempt to persuade your Honour not to exercise that jurisdiction but if I just jump back, sir, to the question you put towards me. Sir, I don't have a deep understanding of this employer or the dispute but my understanding of it through discussions with the organiser, Mr Tracey, is that unless there is some progress in relation to the issues that we won't be able to bring about a return to work in the short term, sir, and I don't mislead the Commission about that. I think it would be an impossibility for us to bring about a return to work along the basis of what your Honour puts and I appreciate where you are heading us, sir, and why you are doing that but I am certainly not prepared to give any commitments, sir, that might assist your Honour in that basis. It would just be wrong of me, I would be misleading the Commission.

PN195

THE SENIOR DEPUTY PRESIDENT: Is it considerable that you might be able to provide me with some advice in that regard if I gave you a very brief adjournment in a few moments time.

PN196

MR EDMONDS: Yes, sir.

PN197

MR McLANE: Yes, sir, I think that would be useful.

PN198

THE SENIOR DEPUTY PRESIDENT: All right. Now, Mr Nicholas, can I hear from you now.

PN199

MR NICHOLAS: Yes, your Honour. Well, I think an adjournment to ascertain what the options are I suppose at this point if there were any agreement in that respect and I make no comment on whether or not we would be in a position to make that agreement at this stage but certainly we should find out if that would be possible otherwise I would certainly agree with the submissions made by Mr Edmonds in relation to the jurisdictional issue and also the exercise of your discretion given that jurisdiction exists and I would also underline, your Honour, the LHMU and I believe the other unions have certainly spent whatever time today attempting to get some kind of movement on the substantive issues and we are prepared to meet this afternoon and we certainly want to address those issues rather than spend the time talking about section 127 orders.

PN200

THE SENIOR DEPUTY PRESIDENT: Yes, but once again I need to draw your attention. We do have that very limited window of time available to us. The concept that I was putting to you was predicated in its entirety on the unions being able to give an unequivocal commitment that the industrial action cease immediately. Now, that means you would need to establish a framework agreement very, very quickly and the whole concept is I should say entirely predicated on the capacity of the employer to agree to this idea. I have yet to hear from Mr Caspersz in that regard but I will do so shortly.

PN201

So are you saying to me Mr Nicholas that it is also worthwhile having a discussion amongst yourselves and with those people who might be instructing you to explore the feasibility of that unequivocal commitment being given as a matter of urgency?

PN202

MR NICHOLAS: Yes, sir.

PN203

THE SENIOR DEPUTY PRESIDENT: I don't want to waste time if there is no opportunity to give that commitment then I would rather know now then in quarter of an hour's time.

PN204

MR NICHOLAS: I don't believe the people sitting around the table are in a position without having a short adjournment to proceed with that.

PN205

THE SENIOR DEPUTY PRESIDENT: I see. All right, thank you. Now, Mr Caspersz, the concept that I have floated to the three unions is one that would only work if first of all the unions were able to give that unequivocal commitment in a very short period of time. Secondly, it would only work if the employer was similarly in a position to commit to a process directed at the resolution of the outstanding matters in dispute consistent with the provisions of clause 19 of the agreement and the West Australian occupational health and safety legislation and, thirdly, it would only work if the employer was prepared to discontinue this application were such an understanding to be reached within the next few minutes. Are you in a position to advise me of the employer's position on those matters with perhaps some reference to the sort of framework approach that I outlined briefly to you.

PN206

MR CASPERSZ: Yes, thank you, your Honour and I will be as brief as I can. In relation to the process which your Honour has suggested with respect my instructions are that the employer is prepared to commit to that process. The employer is prepared to commit to the time lines in fact which your Honour has suggested and that is completely consistent in my submission with what the employer has already stated in writing in exhibit C4 which I took you Honour to in my opening at the end of that letter where the employer has said it is willing and remains open to discuss any legitimate issue.

PN207

So as far as the proposal which your Honour has put forward in terms of process is concerned, yes, my instructions are that the employer is prepared to commit to that. As far as the actual commitment of the unions is concerned, your Honour, very briefly it is absolutely imperative that that commitment be given and my instructions in fact we are now at the point in time where even a 15 minute adjournment would greatly prejudice the position of the employer because of the time of day as it is in Perth at the moment.

PN208

Your Honour would be aware from Blake Dawson Waldron's letter which I took your Honour to in my opening that a similar commitment was sought from the unions hours ago about - - -

PN209

THE SENIOR DEPUTY PRESIDENT: I have taken the opportunity to read that material. Given the pressure of time I will simply ask is there anything further you want to say to me on the matter.

PN210

MR CASPERSZ: The only other thing I would say here, your Honour, with respect is in relation to discontinuing the application. Your Honour, if that commitment is given unequivocally before your Honour by the three unions today, now, in fact and I should add my instructions are that the employer is capable of getting in touch itself with all of the employees who need to report for work by 6 o'clock this afternoon so that the fact that the unions say that they can't do it should not prevent them from giving that commitment, but if that commitment is given then the employer will discontinue this application subject to that commitment being honoured and the process which your Honour has outlined being honoured by the unions.

PN211

THE SENIOR DEPUTY PRESIDENT: Very good.

PN212

MR CASPERSZ: Is there anything else I can assist with, your Honour?

PN213

THE SENIOR DEPUTY PRESIDENT: No, thank you, Mr Caspersz. Five minutes for the three unions, is that going to be possible?

PN214

MR NICHOLAS: We will do our best, sir.

PN215

THE SENIOR DEPUTY PRESIDENT: All right. Once again I won't close the video link. I will adjourn the matter on that basis.

<SHORT ADJOURNMENT [7.05PM]
<RESUMED [7.14PM]

PN216

THE SENIOR DEPUTY PRESIDENT: Mr Edmonds?

PN217

MR McLANE: Sir, it's Mr McLane if that is all right.

PN218

THE SENIOR DEPUTY PRESIDENT: Mr McLane, certainly.

PN219

MR McLANE: Thank you, your Honour. Sir, I apologise and certainly no disrespect to the Commission but the situation on the ground I am informed is such that we are not able to deliver the clear unequivocal undertakings that are required, sir, to bring about the situation you proposed.

PN220

THE SENIOR DEPUTY PRESIDENT: I see. All right. Now, Mr McLane do you have anything you want to say to me then about the extent to which I should or should not utilise section 127(3)(a) so as to issue an interim order?

PN221

MR McLANE: Yes, sir, I will try and be brief in relation to those submissions, sir. Sir, I am simply relying on the submission of my learned friend, Mr Edmonds, in relation to the not coming with clean hands and not being eligible for the equitable relief sought by the company. The issues, sir, are many and varied. Some do relate to safety some don't. I am instructed, sir, there has been quite a bit of intimidation on the job by the employer but I want to use the time, sir, to attempt to convince the Commission as constituted not to exercise its discretion in the manner being sought.

PN222

THE SENIOR DEPUTY PRESIDENT: Let me make it clear to you before you start. I have no intention of issuing an order pursuant to section 127(1) at this stage. I intend to give the parties the opportunity and particularly the unions the opportunity to tell me why I should or should not exercise the discretion that is available to me so as to determine a final position on this matter. The only question in my mind goes to section 127(3)(a) which establishes that the Commission may make an interim order under this section and the issue there is whether or not an interim order should be issued which would then require final determination of the section 127 application.

PN223

MR McLANE: Thank you, sir, I understand clearly now. Sir, I still rely on the argument in relation to clean hands. The interim relief is still equitable relief. The fact that it is interim as opposed to definite really makes no difference there. Sir, we are willing to continue to meet with the company. Mr Tracey is on the job and I know that other organisers for other unions are available. I am available myself if necessary and those negotiations should continue, in my respectful submission, along the lines as was planned prior to them being called off by the company without any notice this afternoon.

PN224

Mr Tracey is confident, sir, that if there is some progress made there and that doesn't mean all the issues or the majority of the issues are resolved it simply means that if the company demonstrates its bona fides and progress is being made, Mr Tracey is confident that he can bring about a return to work.

PN225

The dispute has grown some legs, sir, as they do. There is a protest line on the job and there is a fair amount of emotion I am instructed by Mr Tracey that exists. There was a head of steam up if you like and Mr Tracey is no stranger to that type of situation, sir, and is well and truly able to deal with that situation but we need the company to show some bona fides in relation to the issues and if that was to happen, sir, we are confident that there may well be a return to work and that with the greatest of respect to the Commission the issuing of any orders, sir, may well exacerbate the problem and work against the outcome that the company seeks to achieve.

PN226

I say that certainly, sir, without any disrespect. It is the practical situation on the job and I know how people think in these situations and there needs to be some bona fides shown by the company to let some of the steam off. So, sir, I am really submitting that there should not be interim orders, that we are probably before the Commission somewhat prematurely, but I understand the Commission is required by the Act to move quickly, sir, in these cases as the Commission has done and we are relatively confident, sir, that we might be able to bring about a return to work if some bona fides are shown by the company.

PN227

That is probably all I can say, sir. I apologise that I don't have even half reasonable instructions and that I don't have an understanding of this particular employer and its operations, but I understand industrial action and I understand it takes two to tango and I understand that sometimes these things take a bit of working through, if the Commission pleases.

PN228

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Edmonds, do you want to say anything in this respect?

PN229

MR EDMONDS: Thank you, sir. I would adopt those comments from my friend, sir, and say that unfortunately there is nothing further I can add at this point in time, sir.

PN230

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN231

MR EDMONDS: Thank you, sir.

PN232

THE SENIOR DEPUTY PRESIDENT: Mr Nicholas.

PN233

MR NICHOLAS: Your Honour, we concur with the submissions just put also. I suppose we would also say that we oppose any form of injunction being made and the reasons that we oppose an interim injunction would be the same as those we use to impose an injunction under section 127(1). Having said that I suppose we also need to say we are also not in a position to give any kind of commitment given the practicalities and the timeframe that would be required, but we are certainly willing to sit down with the company and try to work through the substantive issues.

PN234

THE SENIOR DEPUTY PRESIDENT: Yes. It is clear to me in this matter that the discretion inherent in section 127 is enlivened. As I have indicated to the parties I do not intend to make a decision at this stage on whether or not that exercise or that discretion should be exercised so as to make an order or not make an order. The critical factor in my thinking in that regard is the limited time and advice available to the three unions and in that regard I acknowledge that the three union officials here today have clearly endeavoured to use their best efforts to effect an expeditious resolution of the matter.

PN235

On that basis I would propose to give the unions the opportunity to advise the Commission of whether or not an order should be made on an ongoing basis. Nevertheless, on the information provided to me I consider that an interim order should be issued in accordance with section 127(3)(a). It appears to me that there is no dispute that industrial action is happening at the present time, that there is no dispute that that industrial action is likely to escalate in the future, that is the immediate future, that there is no dispute that the work in question is covered by a certified agreement and that on the information before me I am satisfied that there is at least a reasonable probability that that industrial action unless it ceases immediately will have serious consequences for the employer and indeed I should say potentially for employees.

PN236

Accordingly, I propose to issue an order with effect from now which will be known as the CSBP Limited Enterprise Agreement Industrial Action Interim Order 2005. That order will binding on the LHMWU its officers and its employees. It will be binding on the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, that is the CEPU, and its officers and employees. It will also be binding on the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the AMWU, and its officers and employees.

PN237

It will be binding on CSBP Limited and employees of CSBP Limited who are members of the LHMWU, the CEPU or the AMWU and who are employed by CSBP Limited at its premises in Kwinana, Western Australia. I have referred to those premises hereafter as the premises and those employees who are engaged in work which is regulated by the agreement, the employees. For the purposes of this order industrial action means the performance of work in a manner different from that in which it is customarily performed or the adoption of a practice in relation to work the result of which is a restriction or limitation on or a delay in the performance of the work.

PN238

Additionally, it means a ban, limitation or restriction on the performance of work or on acceptance of or offering for work and a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work. The order excludes protected action within the meaning of the Workplace Relations Act. Action by the employee that is authorised or agreed to by the company and action by an employee is such action was based upon the employees reasonable concern about an imminent risk to the employees health or safety and the employee did not unreasonably fail to comply with the directions of the company to perform other available work whether at the same or another work place that was safe and appropriate for the employee to perform.

PN239

The order will direct that industrial action stop or not occur in that each employee must immediately stop and not engage in or threaten to engage in industrial action. Subject to the exclusions in clause 3(d) and (f) which I will refer to in a moment, each employee must immediately be available for work and perform work as required by the employer in accordance with the certified agreement.

PN240

The LHMU, the CEPU and AMWU and their officers, employees, agents and delegates must:

PN241

1. Stop and not recommence any ban, limitation or restriction on employees attending for and performing work in accordance with the agreement.

PN242

2. Not aide, abet, direct, procure, induce, advise or authorise the employees to engage in industrial action or stop performing work in accordance with the agreement.

PN243

3. Immediately advise the relevant LHMU, CEPU, AMWU delegates and its members at the premises that any direction, advice or authorisation to its members to engage in industrial action or stop performing or ban or work in accordance with the agreement is withdrawn and that such action must cease.

PN244

Finally, the LHMU, CEPU, AMWU, their officers, employees, agents and delegates must take all steps available to them under those unions' rules to ensure that the employees comply with this order.

PN245

The order is to be served upon the LHMU, the CEPU, the AMWU its officers and employees by virtue of this hearing. The order is also to be provided by CSBP Limited to each of the employees as soon as may be practically established. The order will come into effect from 5 pm Western standard time, 4 November 2005 and it will remain in force until 5 pm Western standard time, Monday, 7 November or unless it is determined or terminated by the Commission prior to that time.

PN246

That order will be reduced to writing shortly and will be sent to the parties at their nominated facsimile numbers and I would estimate that the parties should expect to receive it within the next half hour. The cessation of that interim order has been arrived at on the basis that I intend to convene a further hearing in this matter at 1 pm, Western standard time, Monday, 7 November. That hearing will be for the purpose of determining whether or not I should exercise the discretion inherent in section 127(1) of the Act.

PN247

It appears to me that the unions present today may wish to obtain further and more detailed instructions as a precursor to that hearing that they may wish to obtain legal representation relative to the concerns expressed particularly by Mr Edmonds at the outset of today's hearings. It also appears to me that the unions may want to give consideration to the option that I outlined earlier. To that effect, I will spell out that option in terms of what I would see as six possible critical points. The first would be that at some point between now and the hearing of the matter on Monday, 7 November, the CEPU, the AMWU and LHMU may be able to give an unequivocal commitment to advise their members that all and any industrial action not be considered in the future in relation to this matter on the basis that the following steps occur.

PN248

Firstly, that outstanding safety and workplace issues separate from the matters addressed in the AMWU and CEPU bargaining period notices of September 2005 are to be agreed and documented by Tuesday, 8 November 2005. Secondly, that the processes in clause 19(1)(iii) and (iv) be completed by close of business, Thursday, 10 November 2005. Thirdly, that if workplace related matters are not agreed by the close of business, Thursday, 10 November 2005, those matters will be referred to the Commission either as a new section 170LW application or under the auspices of the existing section 170LW application.

PN249

Fourthly, that if the outstanding workplace relations matters are not resolved by conciliation the parties would ask the Commission to arbitrate on any outstanding matters. And lastly, that if safety matters are not resolved by the close of business on Thursday, 10 November 2005, the immediate assistance of WorkSafe WA will be requested on an agreement basis consistent with the provisions of the Western Australian Occupational Health Safety and Welfare Act.

PN250

As I have indicated to the parties earlier it seems to me that it would make commonsense to devote efforts toward the agreement of a process which will ensure the resolution of these outstanding issues rather than having to devote an enormous amount of effort to the outstanding issues relative to this section 127 application. If per chance the parties were able to reach an agreement in that respect such that the employer did not wish to pursue the application then I would look for advice from the employer to that effect before the hearing on Monday and the parties would then be able to be advised that it was not necessary for them to attend the Commission. Mr Caspersz, is there anything further?

PN251

MR CASPERSZ: Thank you, your Honour, there is one final matter. In my submission, your Honour, the definition of industrial action in the order which your Honour is to make based on what has been said by Mr McLane I would submit there should be a further aspect of that, perhaps a paragraph (d) along these lines, so that read with the preamble it reads:

PN252

Industrial action means:

PN253

(d) interference with ingress into, or egress from, the Premises by any person.

PN254

And that is on the basis of what we were told by Mr McLane about a protest line and emotions flaring up. In my submission it would be of assistance for the order of the Commission to reflect the fact that there should be no interference with that progress or ingress or egress from the premises.

PN255

THE SENIOR DEPUTY PRESIDENT: Just bear with me for a moment, please. Yes, I will amend the interim order so as to insert in the definition of industrial action the following words, "Interference with access to or from the CSBP premises".

PN256

MR CASPERSZ: Thank you, your Honour.

PN257

THE SENIOR DEPUTY PRESIDENT: Mr Edmonds, is there anything further?

PN258

MR EDMONDS: No, there is not at this point in time, sir. Unfortunately, sir, I have actually got another commitment at 10.30 on Monday, sir, with SDP Lacy to do with a 170MW application to do with Western Power the company in Western Australia that do the power generation and I have section 127 applications all day Tuesday and Wednesday and another section 127 on Thursday. So I am not sure about my availability on Monday, sir, and it maybe necessary for someone else from the CEPU to attend on Monday but I would hope between now and Monday the parties are able to get a return to work and perhaps get a resolution to some of those issues or at least a plan to get a resolution of some of those issues such that it wouldn't be necessary to proceed to a full hearing on Monday, but what I would also observe, sir, I would observe that in those circumstances there be no real prejudice to the company if they had an interim order in place to a delay of this matter for perhaps a week or so, sir.

PN259

THE SENIOR DEPUTY PRESIDENT: Are you suggesting to me, Mr Edmonds, that I should perhaps amend that interim order so that it continues on an indefinite basis? I am happy to do that if it assists the parties. I would do so though only on the basis that at this stage I would propose to put some form of limitation in terms of how long the interim order will operate for on the basis that I will need to list the matter for final determination. An interim order is by definition something that continues only until the matter is determined and I don't intend that it go on indefinitely.

PN260

MR EDMONDS: No, that is probably correct, sir. What I am alerting the Commission to, sir, is that I may not be available on Monday and there maybe another representative of the CEPU who may come along on Monday and seek a further adjournment on the basis that I am not available on that Monday, sir, but as I say hopefully between now and then cool heads prevail and the matters will all be resolved and there won't be any need for a hearing at all on Monday so I am not suggesting there be any need to amend those orders in any way, sir.

PN261

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr McLane?

PN262

MR McLANE: No, sir, nothing at all, thank you.

PN263

THE SENIOR DEPUTY PRESIDENT: Mr Nicholas?

PN264

MR NICHOLAS: No, your Honour, only to say that given the time now it maybe useful for a further period beyond Monday lunchtime maybe useful for the parties to be able to come to an agreement in order that the need for any hearing be avoided so perhaps I think this was one direction you may have been going that the hearing could be adjourned to a later date, not too much later but giving an opportunity to the parties to consult with each other and in that respect the interim orders would need to be amended to take into account the later date of hearing.

PN265

THE SENIOR DEPUTY PRESIDENT: If we were to look at doing that Mr Nicholas the next available time that I could give you would be 1.30, Western Australian time on Thursday, 10 November and if the parties would prefer I am happy to amend that interim order such that it would apply until 5 pm, Thursday, 10 November unless terminated beforehand.

PN266

MR EDMONDS: Sir, maybe if we could leave Monday available at this point in time to come back in front of the Commission and then if it is necessary perhaps to adjourn that to Thursday then maybe that is the way to proceed.

PN267

THE SENIOR DEPUTY PRESIDENT: Well, I am not quite clear on what you are saying to me Mr Edmonds. There appear to be two options. One is to in effect agree to the extension of the existing interim order now so that that interim order applies to 5 pm Western standard time on Thursday, 10 November on the basis that I would still list the matter for Monday in the hope that the parties might have resolve the matter, but if they had not had the opportunity to resolve it I would expect that I would be advised before the hearing on Monday that the matter should be deferred until the Thursday afternoon. Is that what you are saying to me?

PN268

MR EDMONDS: If we could perhaps leave it as it is at this point in time, sir, and we will address the issue with you again on Monday.

PN269

THE SENIOR DEPUTY PRESIDENT: All right.

PN270

MR EDMONDS: If it is necessary.

PN271

THE SENIOR DEPUTY PRESIDENT: I shall do that.

PN272

MR CASPERSZ: Sorry, your Honour, could I just clarify one further thing finally, please, in terms of the order for service. My note of it was that the order was to be served on the unions, their officers as well as CSBPs employees by virtue of this hearing with CSBP to as soon as practical make available a copy of the order to each of the employees in question.

PN273

THE SENIOR DEPUTY PRESIDENT: Yes, that is the effect of the order.

PN274

MR CASPERSZ: Thank you, your Honour.

PN275

THE SENIOR DEPUTY PRESIDENT: So there is no requirement to serve the order on the LHMU, CEPU, and AMWU on the part of the employer. The Commission will do that by way of facsimile advice to those union offices within the next half hour.

PN276

MR CASPERSZ: As far as service on the employees is concerned, your Honour, if I might clarify finally that is also by virtue of this hearing but my understanding is that the employer must actually give a copy of the order to each of the employees as soon as practicable.

PN277

THE SENIOR DEPUTY PRESIDENT: Yes.

PN278

MR CASPERSZ: Thank you, your Honour.

PN279

MR NICHOLAS: Your Honour, that presents a practical difficulty for employees that aren't at this hearing and have no idea that this hearing is actually taking place and given that the employer has said that there is no problem with them contacting employees, my understanding of the effect of your orders was that the employer was to actually serve a copy of the order upon the employees for the purposes of service on those employees.

PN280

THE SENIOR DEPUTY PRESIDENT: As soon as practicable were my words, Mr Nicholas, but I think you and Mr Caspersz are at one in that regard. The employer has indicated a capacity to contact those employees and I expect them to exercise that capacity.

PN281

MR NICHOLAS: Thank you, sir.

PN282

THE SENIOR DEPUTY PRESIDENT: I will adjourn the matter accordingly.

<ADJOURNED UNTIL MONDAY 7 NOVEMBER 2005 [7.48PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 CEPU NOTICE PN43
EXHIBIT #C2 AMWU NOTICE PN43
EXHIBIT #MFI1 UNION NEGOTIATING COMMITTEE MEMORANDUM PN74
EXHIBIT #C3 BLAKE DAWSON WALDRON LETTER DATED 4/11/2005 PN77
EXHIBIT #C4 LETTER TO MR O'REILLY PN86
EXHIBIT #C5 OPEN LETTER TO EMPLOYEES DATED 3/11/2005 PN88