C2005/5904, Transcript of Proceedings [2005] AIRCTrans 2579 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13715-1

DEPUTY PRESIDENT MCCARTHY

C2005/5904 C2005/5905 C2005/5906

RAVENSTHORPE NICKEL OPERATIONS PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5904)

CBI CONSTRUCTORS PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5905)

MONADELPHOUS ENGINEERING ASSOCIATES PTY LTD AND OTHERS
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5906)

PERTH

2.05PM, MONDAY, 12 DECEMBER 2005

Hearing continuing

PN1

MR T LUCEV: I seek leave to appear with MS D McCONNELL on behalf of the applicants in C2005/5905 and 5906.

PN2

THE DEPUTY PRESIDENT: Sorry, 59?

PN3

MR LUCEV: 5905 and 5906

PN4

MR P QUINLAN: I seek leave to appear on behalf of the applicant, Ravensthorpe Nickel Operations Pty Ltd, the applicant in C2005/5904.

PN5

THE DEPUTY PRESIDENT: 5904?

PN6

MR QUINLAN: Yes.

PN7

MR C SAUNDERS: I appear on behalf of the AMWU and with me is
MR D McLANE.

PN8

THE DEPUTY PRESIDENT: Thank you. Leave is granted for both Mr Quinlan and Mr Lucev.

PN9

MR LUCEV: Thank you, sir. This section 127 application concerns the operations at the Ravensthorpe Nickel project. Before I go to a very brief outline of our opening, can I say that in addition to the grounds relied upon in the applications, we also rely on two other grounds and I undertake to formalise these in due course, but for present purposes, they can be summarised as the fact that the section 170MO notices were served by facsimile and we say were therefore not properly served and therefore no actual notice has been given to those employers who were served by facsimile and secondly that the action is unprotected because there's no evidence that the AMWU was authorised to take the industrial action. There's no evidence that we've seen at this stage that that's the case.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR LUCEV: Sir, we'll make more detailed submissions once the evidence is in, but for the purposes of an opening, can I say that it's our submission that the Commission has jurisdiction to make section 127 orders in this matter because we believe that the evidence will establish firstly that industrial action is happening and continues, secondly that the industrial action is in relation to negotiations or proposed negotiations for a certified agreement with a constitutional corporation and thirdly that the applications are brought by parties directly affected by the industrial action and the applicants in 5905 and 5906 have employees who are taking the industrial action.

PN12

We say that the industrial action is unprotected, in very short terms we say that it's unprotected because it's engaged in in concert with unprotected persons and in that regard I would refer you to section 41A and 42B of the Building and Construction Industry Improvement Act with respect to the action being unprotected. We say it's unprotected, again put shortly for this reason, that employees of the applicants in 5906, namely Monadelphous and AGC Industries, have not been served with notices under sections 170MI and 170MO.

PN13

THE DEPUTY PRESIDENT: Monadelphous and?

PN14

MR LUCEV: AGC.

PN15

THE DEPUTY PRESIDENT: It's MI notices, 170MI notices.

PN16

MR LUCEV: MI and MO.

PN17

THE DEPUTY PRESIDENT: And MO?

PN18

MR LUCEV: Yes. We say that the relevant notices must name the correct employer to draw the protection. Secondly, we say the action is unprotected because there'll be evidence of employees of a subcontractor to one of the applicants engaging in industrial action in concert with the other employees who have gone out and thirdly that employees of some of the applicants who have taken industrial action are not AMWU members.

PN19

We also say as I've indicated in seeking to amend the application or the grounds for the application that there's not been proper service in any event and there's no evidence that the AMWU is authorised to take the action. In all of those circumstances, we say in opening that the Commission ought to make orders as sought by the applicants because the industrial action is unprotected and also because of the effects of the industrial action.

PN20

And the evidence in that regard will go to a cessation of significant diminution in work on the site for the remaining employees of the applicants as well as reductions in hours and wages as a consequence, a cessation of the contracted work on the project for practical purposes, the possible future loss of employees both staff and wages and present loss of employees as a consequence of the industrial action and the non-utilisation of machinery and equipment and the cost to the applicants. In relation to the evidence, Mr Deputy President, we'll be calling three witnesses for whom statements have been filed and I'll tender the statements when they go into the box, but they're Macleod from CBI, Mr Connell from Monadelphous and Mr Tomich from the Ausclad group of companies who'll give evidence in relation to the matters that I've outlined.

PN21

Just at the outset in terms of the question of the correct naming of the employers, can I tender for you just by way of example, two Wagenet searches which my instructing solicitors have conducted and I tender these because if you look at - there are two of them, sir, one for AGC and one for Monadelphous Engineering Associates. If you look first at the AGC one and in particular at numbers 3 through to 6, you'll see there there are a number of agreements which have been certified by this Commission in respect of the State of Western Australia in a period from April 2004 to 30 November 2005 in the case of number 3 between the AMWU and AGC Industries Pty Ltd.

PN22

The importance of that, of course, is that we say that it's clear that the AMWU were capable of and have indeed entered into up to and including
30 November 2005 agreements with an employer on this site, namely AGC Industries Pty Ltd. Secondly in relation to the Monadelphous Engineering Associates in that extract, number 20 shows that on 16 September 2005 in respect of Western Australia, the AMWU entered into a certified agreement with Monadelphous Engineering Associates Pty Ltd, again showing that they have entered into agreements with what we say are the true employers or the correct employers on this site with respect to Monadelphous Engineering Associates and AGC Industries, so I tender both of those documents.

EXHIBIT #A1 WAGENET SEARCH DOCUMENT FOR AGC INDUSTRIES
EXHIBIT #A2 WAGENET SEARCH DOCUMENT FOR MONADELPHOUS ENGINEERING

PN23

MR LUCEV: Unless there are any questions from you, sir, what I'd now propose to do is call Mr Macleod.

PN24

THE DEPUTY PRESIDENT: Unless Mr Saunders or Mr McLane wishes to make any comment at this stage.

PN25

MR SAUNDERS: Not particularly, other than there was some discussions with Mr Zorzi prior to this matter being heard this afternoon, saying that he may be willing to go into further discussions. Obviously, that's not - well, that's not the instructions given to the lawyers representing the contractors, so I take it that the proceedings will go ahead.

PN26

THE DEPUTY PRESIDENT: Yes, proceed, Mr Lucev.

PN27

MR LUCEV: Yes, I call Mr Macleod in that case.

<IAN MACLEOD, SWORN [2.17PM]
<EXAMINATION-IN-CHIEF BY MR LUCEV

PN28

MR LUCEV: Mr Macleod, if you could give the Commission your full name?
---My full name is Ian Macleod.

PN29

And your current address?---My current work address is (address supplied).

PN30

And have you prepared a statement in relation to these proceedings?---Yes, I have.

PN31

Can I show you this document? If you can just have a look at each page of that, Mr Macleod. There's no need to read it, just ensure that that is your statement?
---Yes, that's my statement.

PN32

All right, and to the best of your knowledge and belief, is it true and correct?
---Yes, it is.

PN33

I tender that, sir.

EXHIBIT #A3 STATEMENT OF IAN MACLEOD

PN34

MR LUCEV: That's the evidence in chief of this witness, sir.

PN35

THE DEPUTY PRESIDENT: Mr Saunders, have you had - perhaps first,
Mr Quinlan.

PN36

MR QUINLAN: I don't have any cross-examination, sir.

PN37

THE DEPUTY PRESIDENT: Thank you. Mr Saunders, have you had the opportunity to read this statement?

PN38

MR SAUNDERS: No, sir. I saw this about 20 minutes before I came here. I wasn't aware - I understand that they arrived at our office some time on
12 December, today, and they were delivered down here by Mr McLane, 20 or 30 minutes prior to coming in here. I haven't had a chance to read it.

PN39

THE DEPUTY PRESIDENT: So you're saying you're not in a position to cross-examine at this time?

PN40

MR SAUNDERS: No, I'm not.

**** IAN MACLEOD XN MR LUCEV
PN41

THE DEPUTY PRESIDENT: Do you have any suggestions or requests?

PN42

MR SAUNDERS: I request that this witness be brought back at a later date so we can cross-examine his evidence.

PN43

THE DEPUTY PRESIDENT: Mr Lucev, do you have any view on that?

PN44

MR LUCEV: My view of that, Commissioner is this, that this application has been on foot since 8 December, some four full days. Furthermore, this particular statement was served this morning at 9.30 am on the AMWU. The AMWU have had adequate time to properly prepare to face the substance of the application which is set out in the grounds.

PN45

They've had adequate time in my submission to look at the statement of
Mr Macleod. It's not necessary for Mr Saunders to do that. The AMWU is one of the largest federally registered organisations. Given that this application was instituted on 8 December, they've had adequate time to either get other industrial officers or organisers to look at the matter or to brief solicitors or counsel to deal with the matter and in those circumstances, we say that we ought proceed.

PN46

If you're minded to grant an adjournment, our submission based on the provisions of section 127(3) of the Act is that it ought to be a short adjournment and certainly not longer than early tomorrow morning, given the necessity for this matter to be heard as soon as practicable.

PN47

THE DEPUTY PRESIDENT: I'm well aware of that obligation.

PN48

MR LUCEV: I'm cognisant of that, Deputy President, but I need to say it, too.

PN49

THE DEPUTY PRESIDENT: The witness can stand down. I will provide you with the right to have Mr Macleod recalled, Mr Saunders. I will consider at what point that will be appropriate at a later stage of these proceedings.

<THE WITNESS WITHDREW [2.21PM]

PN50

MR LUCEV: Sir, if I could call Mr Connell.

<PAUL RAYMOND CONNELL, SWORN [2.22PM]
<EXAMINATION-IN-CHIEF BY MR LUCEV

PN51

MR LUCEV: Mr Connell, can you give the Commission your full name?---Full name, Paul Raymond Connell.

PN52

Your current address?---My current address is (address supplied).

PN53

And have you prepared a statement in connection with these proceedings?---Yes, I have.

PN54

Can I show you this document? If you can just peruse that to satisfy yourself that it is your statement?---Yes, I believe that is my statement.

PN55

And to the best of your knowledge and belief, is it correct?---Yes, it is.

PN56

I tender that, sir.

EXHIBIT #A4 STATEMENT OF PAUL RAYMOND CONNELL

PN57

MR LUCEV: Sir, that's the evidence in chief of this witness.

PN58

MR QUINLAN: No cross-examination from me, sir.

PN59

MR SAUNDERS: Similar submissions to Mr Macleod's affidavit.

PN60

THE DEPUTY PRESIDENT: You can be temporarily excused, Mr Connell. You may be required at short notice for cross-examination, if there is a request for cross-examination. Thank you.

<THE WITNESS WITHDREW [2.24PM]

PN61

MR LUCEV: If it please the Commission, I call Mr Tomich.

<ANTHONY JOHN TOMICH, SWORN [2.24PM]
<EXAMINATION-IN-CHIEF BY MR LUCEV

PN62

MR LUCEV: Mr Tomich, if you could give the Commission your full name?
---Anthony John Tomich.

PN63

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

PN64

And have you prepared a statement in connection with these proceedings?---I have.

PN65

I will show you this document. Just have a look at that and satisfy yourself that that's your statement?---Yes, it is.

PN66

And to the best of your knowledge and belief, is it true and correct?---Yes.

PN67

I tender that statement.

EXHIBIT #A5 STATEMENT OF ANTHONY JOHN TOMICH

PN68

MR LUCEV: That's the evidence in chief of this witness, sir.

PN69

THE DEPUTY PRESIDENT: Thank you. Mr Quinlan.

PN70

MR QUINLAN: No cross-examination, sir.

PN71

MR SAUNDERS: Similar position as Macleod and Connell.

PN72

THE DEPUTY PRESIDENT: Mr Tomich, you stand down for the time being. You may be required to be available for cross-examination at short notice.

<THE WITNESS WITHDREW [2.25PM]

PN73

MR LUCEV: Sir, we have one other potential witness. We've not at this stage had proper opportunity to speak at any length with him and actually determine whether or not we need to call him. I would simply reserve our position with respect to that witness. If we do decide to call him, we'll undertake to provide a statement in good time to the Commission and to the respondents. Sir, that's the totality at this stage of evidence in chief that we propose to call, subject to that reservation about the additional witness.

PN74

THE DEPUTY PRESIDENT: Is that additional evidence reliant on issues raised in cross-examination, if there is cross-examination, or quite separate?

PN75

MR LUCEV: No, it's simply been a function, as you'd appreciate, sir, of time and space and not actually being able to speak at any length with the witness concerned in the time that's been available. We may or may not call the witness once we've actually spoken to him.

PN76

THE DEPUTY PRESIDENT: It hasn't been practicable for you to speak to him before this time, Mr Lucev? Thank you.

PN77

MR QUINLAN: Yes, if it please, sir, perhaps in light of the matter of cross-examination of the applicant in the other two matters being stood down, I might briefly open the case from the point of view of the applicant who I represent, Ravensthorpe Operations and likewise call the one witness that we have. Can I perhaps - my learned friend has opened in relation to the broad context in which the application arises. Can I identify if you like in opening essentially the difference of the position as it applies to the applicant in 5904 of 2005?

PN78

Ravensthorpe Nickel Operations Pty Ltd, as you will have seen, sir, from the application itself is not the relevant employer, but is, rather, a person who under section 127(2)(b) of the Act is directly affected by the industrial action because we are the company responsible and owning the project in question under which this industrial action is causing financial loss to the applicant in 5904 in the order of many hundreds of thousands of dollars each day.

PN79

The jurisdictional facts are relevantly the same as the jurisdictional facts which would apply in relation to the other applicant, save the only difference being that we're a party directly affected by it rather than being one of the organisations negotiating in relation to the matter. In any event, the jurisdictional facts as they've been identified in the various authorities are likely to be in my submission relatively uncontroversial, given that they are simply that industrial action is occurring, that they are in relation to negotiations or proposed negotiations in relation to an agreement under the part and that the applicants have proper standing.

PN80

My learned friend raises the question of the nature of the industrial action and whether it is protected action and, of course, in accordance with the authorities, that is a matter which goes to the exercise of discretion in relation to the matter, but is not a matter going to the question of jurisdiction. I raise that at this stage because the material which will be before the tribunal by the end of today in terms of the evidence in chief and which is already before the Commission in the evidence in chief of the three witnesses who have been called, raises substantial issues already in relation to whether or not the action itself is protected and if it is to be the case that the matter is to be adjourned to enable Mr Saunders to have an opportunity to deal with cross-examination of those witnesses.

PN81

Our submission would be that in the interim, any witnesses that are proposed to be called in relation to that issue and those issues as to the protected action statements ought to be provided by the respondents in the same way to address the prima facie issues which have been raised in the application. The witness that the applicant in 5904 proposes to call who is in attendance, a statement has been filed and served earlier today and I likewise would seek to call Andrew Chapman McDougall to give evidence in relation to that matter and I call him.

<ANDREW CHAPMAN MCDOUGALL, SWORN [2.31PM]
<EXAMINATION-IN-CHIEF BY MR QUINLAN

PN82

MR QUINLAN: If it please, sir.

PN83

Your full name is Andrew Chapman McDougall, is that correct?---Correct.

PN84

And you reside at (address supplied)?---Correct.

PN85

And you are currently employed as the project controls manager with Ravensthorpe Nickel Operations Pty Ltd?---That's correct.

PN86

And you have had prepared and signed a statement in relation to this application by Ravensthorpe Nickel Operations today, is that correct?---Correct.

PN87

Can I ask you to look at a copy of that document, to look through it and confirm that that's a copy of the statement that you've signed, dated today's date?---That's the statement, yes.

PN88

And are the statements in your statement that you've signed true and correct?
---I beg your pardon, sorry?

PN89

Are the statements set out in that statement true and correct?---In the time frame that I've scanned it, yes.

PN90

So it is the statement that you signed this morning?---Yes.

PN91

If it please you, sir, I tender as the evidence in chief the witness statement of
Mr McDougall.

PN92

THE DEPUTY PRESIDENT: I think I will keep the same sequence of numbering.

EXHIBIT #A6 STATEMENT OF ANDREW CHAPMAN MCDOUGALL

PN93

MR QUINLAN: If it please you, sir, that's the evidence in chief of this witness.

PN94

THE DEPUTY PRESIDENT: Mr Lucev.

PN95

MR LUCEV: I've no cross-examination at this stage, sir, but I reserve the right to cross-examine, depending what happens in the cross-examination of the applicant's witnesses.

**** ANDREW CHAPMAN MCDOUGALL XN MR QUINLAN
PN96

THE DEPUTY PRESIDENT: Mr Saunders, is your position the same as with the earlier witnesses?

PN97

MR SAUNDERS: At this stage I haven't even seen the statement, so, yes.

PN98

THE DEPUTY PRESIDENT: Mr McDougall, you can stand down for the moment. You may be required at short notice to be available for cross-examination.

<THE WITNESS WITHDREW [2.34PM]

PN99

THE DEPUTY PRESIDENT: That's your case, I take it?

PN100

MR QUINLAN: That is the evidence to be called, sir.

PN101

THE DEPUTY PRESIDENT: Mr Saunders, do you have anything to say at this point?

PN102

MR SAUNDERS: We'd just seek an adjournment now to be in a position to cross-examine the witnesses who have lodged statements or affidavits.

PN103

THE DEPUTY PRESIDENT: Are there any submissions at all you would wish to make at this point?

PN104

MR SAUNDERS: Not particularly, no, not at this stage.

PN105

THE DEPUTY PRESIDENT: Mr Quinlan or Mr Lucev, are there any submissions at all you wish to make at this point which might facilitate the expeditious dealing with this matter?

PN106

MR LUCEV: Certainly in my submissions, sir, that I've already made in terms of section 127(3), the matter ought be expedited and in our view, the matter ought not in terms of this phase of the proceedings go beyond tomorrow in terms of an adjournment. If it is, then given that I think the losses identified in
Mr McDougall's statement on an overall basis are in the vicinity of $690,000 per day, this industrial action has been going on now for three weeks and on my quick maths, that's something in excess of 12 or $13 million in costs already and racking up at $690,000 a day. On a different scale, if you look at the CBI evidence, just in relation to CBI as a contractor, it's costing them around $35,000 a day, so in respect of a contractor of that size, they've already in terms of this matter lost something in the order of $700,000, $35,000 a day ongoing.

PN107

We think that there's a substantive basis for the issuance of an interim order either today or if the matter is to be adjourned for anything beyond tomorrow, then certainly looking at an interim order some time in that time frame. In terms of procedural issues, we would say that if the AMWU intend to lead any evidence in respect of this matter, then that evidence and any supporting documentation ought to be filed and served as soon as possible so that we can deal with that evidence when it's called, rather than having to have the proceedings further adjourned if the AMWU do call any witnesses. So we would say there's also a necessity for you to make directions and make orders that the AMWU file witness statements probably by tomorrow morning.

PN108

THE DEPUTY PRESIDENT: Yes.

PN109

MR QUINLAN: Perhaps I should say we support the submissions made by my learned friend in relation to the question of the expeditious - a need for an expeditious determination of this matter. In relation to the last matter that my learned friend dealt with, as was indicated at the outset, these applications were filed on 8 December so that particularly in relation to the issues raised in the applications themselves as to the fact that not all employees of the contractors are members of the AMWU and matters of that kind, they are matters about which the AMWU will easily be in a position to put on evidence about and inform the Commission about and we would submit that those matters be the subject of statements to be filed and served before we resume tomorrow.

PN110

THE DEPUTY PRESIDENT: Mr Quinlan and Mr Lucev, do you have anything to say about the representation or the capacity for employees who could be affected by these proceedings and who have an interest in them who are not members of the AMWU? Do you have any comment to make about that with respect to service, or anything else?

PN111

MR QUINLAN: In relation to persons who are not members of the AMWU or the applications in the first instance, the first references that are made in relation to them is that the protection which is sought, the protection which is sought for the industrial action is made and sought at the behest of the AMWU and in relation to persons who are not members, they would not be protected in any event, so it would be no different position being served with the - - -

PN112

THE DEPUTY PRESIDENT: You are saying if I were minded to issue orders, then it should not be directed to those persons who are not members of the AMWU?

PN113

MR QUINLAN: No, no, it would be directed to those persons, because it would be directed to the employees on the site and the mechanism for dealing with their response to it or their answer to it would then be dealt with as part of the service provisions that are provided for in the application itself.

PN114

THE DEPUTY PRESIDENT: But how are their interests represented in these proceedings? How would they be aware of these proceedings? It would be affected by an outcome of these proceedings. How do they know that they have that potential?

PN115

MR QUINLAN: Well, it may be that that would be an issue that I'll need to take instructions on and give consideration to, but that wouldn't affect, for example, if the conclusion were drawn that those persons who do not have the protection were acting in concert with the AMWU or its members, that an order could be made directed to the AMWU or its members, so the unprotected nature of those persons is still relevant to the application directed to the union and its members. It wouldn't prevent this matter going ahead, but to the extent that those persons were to be bound, there may be an issue we need to address in the interim in terms of bringing them before the Commission.

PN116

THE DEPUTY PRESIDENT: Essentially, I can understand both yours and
Mr Lucev's - Mr Lucev, you may wish to comment, but I can understand the crux or the thrust of your argument is that any industrial action that's occurring, it's not protected action and therefore an order should issue. Is that the thrust of it?

PN117

MR QUINLAN: Yes, it is.

PN118

THE DEPUTY PRESIDENT: If your assertion is that it's not protected action, why is the matter here? I can't make determinations on whether industrial action is protected or not. You tell me why is the matter here?

PN119

MR QUINLAN: For the purposes of obtaining the order pursuant to section 127 of the Act which then enables the relevant matter to be brought before the Federal Court for injunctive purposes under the other subsections of section 127 if the order is not complied with.

PN120

THE DEPUTY PRESIDENT: but the thrust of your submissions here and presumably there would be that the industrial action is not protected and subject to being convinced otherwise, but I can't make determinations in that regard. It's taken into account if it's likely to be protected action, or if it's not likely to be protected action is a matter of discretion, but I can't make determinations in that regard and presumably at the end of the day, that's a determination that will need to be made either if 127 orders are issued or if they're not. My question is why are these matters here when that's the thrust of the question that needs to be determined?

PN121

MR QUINLAN: Yes. Well, the issue and the question may well be the subject of determination as a step in the decision making process as to whether the discretion is exercised because the cases of this Commission in relation to section 127 effectively refer to a sliding scale, if you like, from obviously protected to obviously not protected and matters in between, affecting whether or not the Commission exercises its discretion to make an order. Now, in that context, it's necessary to make findings in relation to the matter in order to be able to determine the way in which the - - -

PN122

THE DEPUTY PRESIDENT: That's my point. It's not necessary to make findings, is it, if I can't really make determinations?

PN123

MR QUINLAN: Well, in my submission it is necessary to make findings sufficient to determine whether or not the discretion ought to be exercised, that because it is a matter relevant to the exercise of discretion, it's an unavoidable issue that needs to be addressed in the context of whether an order should be made under section 127 and for that reason is an issue properly before the Commission in this application.

PN124

THE DEPUTY PRESIDENT: Mr Lucev, Mr Saunders, do you wish to make any comment on that interchange?

PN125

MR SAUNDERS: Not directly, sir.

PN126

THE DEPUTY PRESIDENT: Well, particularly you, Mr Saunders, on the representation issue for persons who may not be members of yours.

PN127

MR SAUNDERS: Yes, there's a couple of areas there. One, it was put by the applicants that we should have to show reason that they are members of the AMWU. At this stage we don't know. There's no list of who is in dispute, who is not in dispute. What our submission will be is that only those who attend the meeting, an AMWU meetings who are supposed to be members or are members of the AMWU are in dispute, so at this stage we don't know what people who are not at the site or are at the site.

PN128

THE DEPUTY PRESIDENT: But you're not purporting to represent anyone other than your members?

PN129

MR SAUNDERS: That's correct, sir. There's been no, as I understand it, no members or for that matter non-members list that's been made available to the union to that degree and on that basis, we aren't in the position - we're only here to represent the AMWU members.

PN130

THE DEPUTY PRESIDENT: But you accept that you are representing the members of the AMWU that are engaged for work at that site?

PN131

MR SAUNDERS: I accept that.

PN132

THE DEPUTY PRESIDENT: Mr Lucev, is there anything you wish to comment on from that interchange?

PN133

MR LUCEV: Yes, I just echo I think what was the thrust of my learned friend Mr Quinlan's submission on the question as to whether or not this is protected action. In my submission, it is necessary for you to make some finding with respect to that, because that is an issue which is a relevant fact or criterion in determining whether or not to issue the order and therefore it would be an error in my submission for you not to consider it.

PN134

THE DEPUTY PRESIDENT: I didn't say not consider it, Mr Lucev. I said at the end of the day there is a determination that needs to be made in the court, why are you here? Whether I issue an order or don't issue an order or whether you take other action, at the end of the day, the court will need to make a determination. I cannot make determinations as to whether the action is or is not protected. I can make observations on it.

PN135

MR LUCEV: Yes, and certainly we would say that in terms of consideration and making a decision as to whether or not a 127 order ought to issue, that you will need to make those observations about whether or not the action is protected which was the purpose of putting the submission to you.

PN136

THE DEPUTY PRESIDENT: Is likely to be or not likely to be?

PN137

MR LUCEV: As the case may be, yes.

PN138

THE DEPUTY PRESIDENT: Right.

PN139

MR LUCEV: With respect to the issue of service on non-union members, there are a number of ways which we think that might be addressed if the necessity arises. It occurs to us, for example, that the employers might notify the non-union members when we find out who they are. They might be phoned. They might be the subject of press or radio advertisements in the relevant areas and there are probably, given time, other permutations that might arise.

PN140

I'm aware, for example, in Federal Court proceedings that - I think there was an order or a direction issued that people be contacted on their mobile phones by SMS message, for example, so there's more than one way to skin a cat when we get to that point, Deputy President.

PN141

THE DEPUTY PRESIDENT: I'll adjourn for a few moments.

<SHORT ADJOURNMENT [2.49PM]
<RESUMED [3.09PM]

PN142

THE DEPUTY PRESIDENT: Just so it's clear for the record, these applications were lodged on 8 December, I might say at or around 5 pm on 8 December. I did not receive them, nor was I aware of them, they weren't allocated to me until I became aware of them on the morning of 9 December.

PN143

This hearing, there was a notice of listing for it to the parties pre-midday on the morning that I became aware that the applications had been lodged and allocated to me. I've received no requests. As all of the parties here are more than familiar with, if there's requests following notice of listing to be adjusted because of the urgency, the Commission is more than receptive to that on virtually every occasion.

PN144

Now, I'm not suggesting by that that there's any - and I don't take any inference from what's been said that there's been any delay by the Commission, but I thought it appropriate to put on the record just what the timing of these applications has been and my complying with the requirements of the Act to deal with them as soon as is practicable.

PN145

I've decided to adjourn these proceedings this afternoon. I'm not available to hear the matters or re-list them until 2.30 tomorrow afternoon. It would be my intention to proceed to hear and determine the applications tomorrow afternoon, unless circumstances arise that make that impracticable to do so. I'll expect,
Mr Saunders, for you to be - for your union to be prepared to put its case and present any evidence and to alert the applicants by midday tomorrow of any evidence that you wish to call and the purpose of calling that evidence.

PN146

I will not require you to provide them with witness statements or any details beyond who you intend calling and the purpose of calling, but I'd expect you to be ready to proceed with the matter at that time. In terms of service of anyone who may be affected by these proceedings, I don't intend to issue any directions or make any comment other than it's in the applicants' hands as to who and how they serve people.

PN147

That might have implications should I decide to issue an order for the nature of the order that's issued. Unless there's anything either of the parties wish to comment on, at this point I will adjourn. I'll adjourn on that basis.

<ADJOURNED UNTIL TUESDAY 13 DECEMBER 2005 [3.12PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WAGENET SEARCH DOCUMENT FOR AGC INDUSTRIES PN22
EXHIBIT #A2 WAGENET SEARCH DOCUMENT FOR MONADELPHOUS ENGINEERING PN22
IAN MACLEOD, SWORN PN27
EXAMINATION-IN-CHIEF BY MR LUCEV PN27
EXHIBIT #A3 STATEMENT OF IAN MACLEOD PN33
THE WITNESS WITHDREW PN49
PAUL RAYMOND CONNELL, SWORN PN50
EXAMINATION-IN-CHIEF BY MR LUCEV PN50
EXHIBIT #A4 STATEMENT OF PAUL RAYMOND CONNELL PN56
THE WITNESS WITHDREW PN60
ANTHONY JOHN TOMICH, SWORN PN61
EXAMINATION-IN-CHIEF BY MR LUCEV PN61
EXHIBIT #A5 STATEMENT OF ANTHONY JOHN TOMICH PN67
THE WITNESS WITHDREW PN72
ANDREW CHAPMAN MCDOUGALL, SWORN PN81
EXAMINATION-IN-CHIEF BY MR QUINLAN PN81
EXHIBIT #A6 STATEMENT OF ANDREW CHAPMAN MCDOUGALL PN92
THE WITNESS WITHDREW PN98