C2005/6198, Transcript of Proceedings [2005] AIRCTrans 2615 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13762-1

COMMISSIONER HARRISON

C2005/6198

JOHN FAIRFAX PUBLICATIONS PTY LIMITED
AND
MEDIA, ENTERTAINMENT AND ARTS ALLIANCE
s.127(2) - Appln to stop or prevent industrial action
(C2005/6198)

SYDNEY

1.11AM, THURSDAY, 15 DECEMBER 2005

PN1

MR R GOOT: I seek leave to appear on behalf of the companies.

PN2

MR M RYAN: I appear for the Media Entertainment and Arts Alliance, with me MR C WARREN and MR G NOONAN. I'd like to hear the grounds on which
Mr Goot thinks leave should be granted before I make my view known, Commissioner.

PN3

THE COMMISSIONER: Thank you. Mr Goot?

PN4

MR GOOT: Mr Ryan has heard the reasons expressed many times before. Indeed, the Commission has on many occasions granted leave to the companies to be represented by solicitor or counsel, especially in relation to applications being made under section 127 of the Act. Firstly, the seriousness of the issues. Secondly, the issues themselves, and it's designed also to assist the Commission in its deliberations given that there is, as we understand it, not a lot of time available before - - -

PN5

THE COMMISSIONER: I can inform you that I've arranged for another member of the Commission to deal with my 2 o'clock matter.

PN6

MR GOOT: Very well. Well, then that last reason evaporates. So Mr Ryan needn't address it.

PN7

THE COMMISSIONER: Thank you, Mr Goot.

PN8

MR RYAN: Yes, we do object, Commissioner. Unfortunately section 127 orders are a dime a dozen these days. There's nothing special about these proceedings and that Mr Handley is present in the Commission. She's the Company Secretary for Fairfax. He's legally qualified. So that does away with ground (c) of 42(3), so we do press our objection to Mr Goot being granted leave to appear.

PN9

THE COMMISSIONER: Mr Ryan, I think you might say that 127 applications are a dime a dozen. I can probably categorise the appearance of counsel also. It's fairly uncontroversial these days and I don't think the MEAA is going to be disadvantaged by me granting leave to Mr Goot and I intend to do so.

PN10

MR GOOT: If the Commission pleases. I am indebted to you, Commissioner, in not applying the dime a dozen reference to counsel. Commissioner, you have, hopefully, a form of application which was emailed earlier today and which has since been filed which differs to the form of application that was sent to you or to your chambers yesterday afternoon or early evening. The current form is recognisable because, although it's not called an amended application, in paragraph 2.1 of it, the definition of company is a definition of companies and the companies are John Fairfax Publications Pty Ltd, The Age Company Limited, Illawarra Newspaper Holdings Pty Ltd and Newcastle Newspapers Pty Ltd and in subparagraph (c) of paragraph 2.1 there are four sites mentioned.

PN11

The application principally relates to the first site. That is, John Fairfax Publications Pty Ltd at 201 Sussex Street, Sydney. As you will see, Commissioner, both from the form of the application of the order and the affidavit upon which we propose to rely, that of Mark Scott, sworn today, industrial action is taking place currently and has been since yesterday afternoon in respect of the Sussex Street site and in respect of the publications Sydney Morning Herald and Sun Herald published by John Fairfax Publications Pty Ltd.

PN12

The orders sought in paragraph 3 are that firstly in paragraph 3.1, members of the MEAA other than those referred to in paragraph 3.2 must not take any industrial action within the time span limited and that time span extends to 30 June 2006, Commissioner, and that is the nominal expiry date of the current certified agreement, that is the agreement referred to in the application as the John Fairfax Group Journalists Certified Agreement 2003 and in paragraph 3.2 members employed by John Fairfax Publications Pty Ltd, Sussex Street, and the Sydney Morning Herald and the Sun Herald must return to work at the commencement of the relevant members' ordinary shift on 16 December 2005, tomorrow, and thereafter must not take any industrial action until 30 June 2006.

PN13

So that there's a differentiation between those who are actually on strike or taking industrial action in 3.2 and those in respect of which the industrial action has threatened probable in accordance with section 127 and we'll come to the differentiation of the grounds for our apprehension in that regard when we deal with Mr Scott's affidavit. Paragraph 3.3 is the union and its officers must advise the members by posting a notice at the sites no later than 4 pm today and using their best endeavours to contact each of the members by telephone no later than 4 pm today. That is the definition of industrial action, it's not controversial, and the term and date of the effect of the order is again fairly straightforward. The form of order is consistent with that which is contained within the application.

PN14

Commissioner, we move on to the affidavit of Mark Scott, who is the Editorial Director employed by John Fairfax Holdings Ltd, but obviously having responsibilities in relation to the various companies the subject of the application. I don't know whether you have had an opportunity to read the affidavit, Commissioner, the body of which was emailed earlier, or whether you wish time to read it. I had intended to highlight parts of it before calling, I understand Mr Scott is required for cross-examination, I was going to say short cross-examination but I didn't want to limit Mr Ryan's cross-examination, so I just say cross-examination.

PN15

The affidavit deals with the industrial instruments, being the agreement and the award, and (7), the nominal expiry date of the certified agreement is 30 June 2006 and then the background to the current dispute is set out. In paragraph 10 the redundancy program that was announced by the company in October 2005, in accordance with the terms of the agreement, and the response by the MEAA. In paragraph (11), this is critical, Commissioner, one of the demands made on the company by the MEAA was for a guarantee by 2 November 2005 that current entitlements including redundancy payments would be maintained in future enterprise agreements, and that's confirmed in a communication which is annexed and I don't really need to take you to it, Commissioner, but it's a communication from the union dated 28 October which reports on points of action from the stop work resolutions and one of them, the last one, was that to which is extracted in the affidavit.

PN16

Then there was, in late October, an approach by the house committee to commence negotiations for a new certified agreement to replace the existing certified agreement and it's worth noting, in paragraph 13, Commissioner, that clause 6.2 of the certified agreement currently provides that the parties shall meet as required in the final three months of the period of operation of this agreement to commence negotiations for the agreement to replace this agreement, that is, commence in the period from 30 March 2006 to 30 June 2006. The request was - - -

PN17

MR RYAN: Commissioner, really, they've got an affidavit here. We haven't even heard from the witness. The witness hasn't been cross-examined and we've got Mr Goot making comment on things that may be subject of cross-examination.

PN18

MR GOOT: That's an astonishing submission and if it is the subject of cross-examination, no doubt my learned friend will cross-examine the witness and in my closing submissions I deal with any evidence that falls from the witness, but I'm simply highlighting, Commissioner, by way of opening what this application is all about and how it comes about and why we're aggrieved by the action taken by the union and the basis upon which we're seeking the intervention of the Commission to make the order.

PN19

THE COMMISSIONER: All right. You can take it I've read the affidavit.

PN20

MR GOOT: Very well, thank you.

PN21

THE COMMISSIONER: You can go ahead and highlight whatever you wish.

PN22

MR GOOT: So the deponent refers to the term of the agreement in terms of its renegotiation and says in (15) that there was an understanding that because of the work choices legislation being anticipated to commence in operation in January, there was some concern that the negotiations should take place earlier. In 17 there was a reference to a conversation about not taking unprotected action if the company agrees in good faith to commence negotiations and such references are replete in the affidavit by conversations and in correspondence which is annexed to the affidavit and to which I take you, Mr Commissioner, as we have indeed the affidavit.

PN23

It's a characteristic of the discussions between the parties and referred to in paragraphs 23 and 25 and 27 that the company was always reminding the union that any unlawful industrial action while renegotiating the agreement early will have consequences. The deponent indicates what some of the issues were, but standing between the parties and the negotiations, including a requirement by the company relating to its claim in relation to use of fixed term contacts, which, as set out in paragraph 38 was yesterday dropped and Mr Noonan is reported as saying I think this is a healthy step.

PN24

Notwithstanding that major concession, later on the same day, dealt with in paragraph 44 there was a resolution to take industrial action indefinitely for the first report back meeting scheduled for 4 pm tomorrow, Friday, 16 December. That is the factual scenario as to why we are here, Commissioner. There follows in paragraph 45 through to 60 information which is necessary, it goes to the question of damage and why it's important that the industrial action cease and that the contemplated industrial action not take place, information which is really commercial incompetence and the evidence is tendered on that basis, Commissioner, and in accordance with the normal practice we would ask that an appropriate order be made in relation to the evidence in the affidavit within those paragraphs, 45 to 60, and any oral evidence that is given in relation to it.

PN25

Then, and I don't need to rehearse it, Commissioner, it's pretty straightforward. Then under the heading Other Publications in paragraph 61 we deal with the threatened pending or probable industrial action through to 64 and contrast that with the situation in Sydney, and finally, a reference to some previous unprotected industrial action which took place in October of this year, the background to it and fact of it in paragraphs 69 and 70 which of course heightens the apprehension of the company applicants in these proceedings. That's the affidavit upon which we rely. Mr Scott is here and I call him.

PN26

THE COMMISSIONER: Just before you do, Mr Goot, I might just hear from Mr Ryan in response.

PN27

MR RYAN: I prefer to wait until after Mr Scott gives his evidence, Commissioner, and also I will have to raise a number of issues about the terms of the proposed order as well, should you be so mindful to grant one.

PN28

THE COMMISSIONER: All right.

<MARK SCOTT, SWORN [1.27PM]
<EXAMINATION-IN-CHIEF BY MR GOOT

PN29

MR GOOT: Your name is Mark Scott?---That's right.

PN30

Your business address is 201 Sussex Street, Sydney?---That's correct.

PN31

You are the Editorial Director employed by John Fairfax Holdings Limited?
---That's correct.

PN32

For the purposes of these proceedings, Mr Scott, you've sworn an affidavit on 15 December, today, is that correct?---That's correct.

PN33

Do you have it with you in the witness box?---Yes, I do.

PN34

Thank you, nothing further.

PN35

THE COMMISSIONER: Do you wish to the affidavit to be marked?

PN36

MR GOOT: Yes, I do, Commissioner.

EXHIBIT #S1 AFFIDAVIT OF MARK SCOTT
<CROSS-EXAMINATION BY MR RYAN [1.28PM]

PN37

MR RYAN: Mr Scott, I wonder if I could draw your attention to the last sentence of paragraph 9 of your affidavit?---Yes.

PN38

Those conversations form part only of the totality of the conversations that I have had with representatives of the MEAA on the topic of negotiating a new certified agreement during the nominal period. What conversations have you left out of your affidavit?---Mr Ryan, as you would be aware, my work involved does see me present on the news room of the Sydney Morning Herald and at times when I'm on the news room with the Herald I do speak to union representatives about the nature of the negotiations. From time to time I've had phone conversations as well as bumping into people and having conversations.

PN39

So the question was, what conversations have you left out of your affidavit?---I think the affidavit summarises the highlights of the formal meetings that we had with the union, but there would be a number of informal conversations that have taken place over time and what would be omitted would be conversations in the nature of informal conversations, not formal talks.

**** MARK SCOTT XXN MR RYAN
PN40

You would have, for example, left out of your affidavit the disgust shown by the union towards the payout of four and a half million dollars to Mr Hilmer, or 1.5 million dollars to Mr Kerr?

PN41

MR GOOT: I object to that. No doubt the disgust of the union is a matter of lively interest within the union. It's got no relevance whatsoever to the matters that are before this Commission.

PN42

THE COMMISSIONER: I accept your point. Thanks, Mr Ryan.

PN43

MR RYAN: Well, one of the grounds, Commissioner, upon which the company relies for seeking these orders is that the industrial action is illegitimate, whatever that means. We say the context of getting 70 journalists in the light of massive payouts to an outgoing CEO, massive payment incoming CEO, it's more than legitimate to be questioned on this, particularly when the affidavit says he has deliberately left out of his affidavit conversations which are relevant to the reasons why people have taken industrial action.

PN44

MR GOOT: Commissioner, can I just - I don't want to spend a lot of time on this. Firstly, it's a matter for submissions. The fact that a payment - if Mr Ryan is to rely upon the commercial decision making of the applicants, then he can do that in submissions. If Mr Ryan wants to make submissions about that, he can make submissions about it. But what the witness is being cross-examined on is a sentence in his affidavit in which he says candidly that the conversations form part only of the totality of conversations they had with representatives of the MEAA on the topic of negotiating a new certified agreement, not on the wider topic to which Mr Ryan refers, but the topic of negotiating a new certified agreement.

PN45

Now, he can be cross-examined on that. He can be cross-examined on relevant conversations if that's the way Mr Ryan wants to conduct the cross-examination but it's got to be relevant to the matter before the Commission and a payment to Joe or Blow or Fred Wilma or anyone else or commercial decisions of which there must be thousands made by Fairfax have got nothing to do with it and if Mr Ryan wants to know what illegitimate means, it means not legitimate. That is, not lawful. That is, not protected.

PN46

THE COMMISSIONER: These proceedings are about an application for an order under section 127, but it may well be relevant as to what is motivating the members of the MEAA to be in dispute, but when it comes to the crunch in terms of whether or not I issue an order, that's really not part of my consideration. So in that context I agree with Mr Goot in terms of relevance.

**** MARK SCOTT XXN MR RYAN
PN47

MR RYAN: Mr Scott, can I take you to paragraph 46 of your affidavit where you say a first edition of the Herald is distributed late, the company may suffer. Why would a strike by editorial staff have an impact on distribution times?---As you'd be aware, Mr Ryan, when the journalists ..... leave the news room it then falls to a management team and a team of staff exempt under our agreement to put the newspaper out. We have - there is an expectation from our readers that our paper will appear every morning. We have advertisers who have taken out advertising expecting to reach our readership. So our number one priority is to get the newspaper out. In the normal course of a day, of course, there are several hundred journalists who are involved in putting the newspaper out, by comparison when we have a management team putting the paper out, there are, by comparison only, a handful of staff who are putting the newspaper out. So therefore in terms of the complexity and the demand it is not inconceivable that the paper runs late. Last night we put the deadlines - we were forced to put the deadlines of the paper back some hours in order to get the work done to get the paper out on time. As the paper runs late we miss early distribution trucks. A lot of our complex distribution arrangement gets put at risk and as a consequence of that, the paper does run late and the paper running late does have an impact on our circulation and the number of papers we have available to sell.

PN48

In relation to paragraph 46, that's just conjecture, isn't it?---Well, Mr Ryan, we have our experts in our business - - -

PN49

What happened - - -

PN50

THE COMMISSIONER: Well, let him answer the question. He's giving an answer to the question. You might not like the answer, but he's got to listen to him.

PN51

MR RYAN: It's a long time-a-comin'.

PN52

THE COMMISSIONER: Well, he just said we have experts and you cut him off?---Mr Ryan, we have experts in the business who are involved in the distribution of our newspapers. The advice in my affidavit has been forwarded by people who are experts in the distribution of the paper. We do this every day and we are well aware of the pattern that late newspapers can have on circulation. So it's not conjecture at all. It's well established by our pattern of distribution of the newspaper every day.

**** MARK SCOTT XXN MR RYAN
PN53

MR RYAN: What happened with today's edition?---Well, with today's edition the deadlines of the paper was moved back by several hours, so early country routes, those papers were late. I haven't seen the final report but I know that our deadlines were moved back several hours and as a consequence the paper, particularly in key regional routes, would have run significantly late.

PN54

Hold on. You've sworn this affidavit today after the event. Is it too much to expect that you actually have some facts and figures in front of you?

PN55

MR GOOT: I object to that. That's not a legitimate question. That's bad humour on the part of Mr Ryan. The witness has said, 46:

PN56

If a first edition of the Herald is distributed later the company may suffer,

PN57

Not will, may suffer the following losses. Now, he can be asked about what losses he's aware of have been suffered today as a result of late delivery if he knows. I mean, I don't know. Does Mr Ryan know? You have to ask the witness to get the figures. They might not have been available at the time that this affidavit was sworn, but at least he should ask those questions instead of some disparaging comment.

PN58

THE COMMISSIONER: Mr Ryan?

PN59

MR RYAN: What do you know happened about today's edition?---I am aware, Mr Ryan, that the last pages, the first edition of the newspaper, left the news room floor two hours later than would be the normal scheduled time. As a consequence of that the first editions of the papers leaving the printing plant would have run significantly late. I don’t have details of the print run all the way through the night, but the best indicator of print run performance is often how first edition and first trucks leave the plant. We would have run significantly late last night.

PN60

But you don't know, do you?---I am aware, Mr Ryan, that we did run late because I'm aware that the first editions of the paper ran late because our deadlines were two hours later than they normally would be. The reasons our deadlines were late was because we had to move those deadlines back because of pressure in the news room generated by the industrial action taken by staff.

PN61

Can I direct you to paragraph 48 where you say, "If the Herald is not printed and/or distributed at all on a particular day"?---Yes.

**** MARK SCOTT XXN MR RYAN
PN62

When was the last time the Herald wasn't printed?---As you would be aware, Mr Ryan, the Sydney Morning Herald has always come out. At times - and it's come out late and there are consequences for the paper if it comes out late.

PN63

No, just stick to the question which was, when was the last time the Herald wasn't printed and your answer was, it's always been printed?---The Sydney Morning Herald has always been printed. As you would be aware there has been industrial action at other mastheads that are covered by this agreement that has resulted in the paper not appearing and the company incurring very significant financial cost.

PN64

Yes, but your affidavit refers only to the Herald, doesn't it?

PN65

MR GOOT: Well, I object to that.

PN66

MR RYAN: That's what it says.

PN67

MR GOOT: It does not because as I recall the affidavit and I accept that Mr Ryan may not have been in a position to read it fully in the short time, in paragraph 64 the witness says that in respect of the other publications, they are of the same nature and general impact as I've deposed to in relation to the company's publications. So that indeed, in paragraph 64 he links back to, for example, 48.

PN68

MR RYAN: Rubbish.

PN69

MR GOOT: Well, Mr Ryan can say 48 and all the others. I mean, he hasn't given detailed evidence but it's of the same nature and general impact so it's quite wrong to say he's only talking about the Herald there.

PN70

MR RYAN: Do those figures you set out in the diagram refer only to the Herald?---On - in section 48?

PN71

Yes?---Yes. Those figures are linked back to the Sydney Morning Herald for Monday through Saturday and the Sun Herald on Sunday, so they are linked back to the performance of Herald publications and then you will see underneath that reference to the Good Weekend magazine, which is published on Saturday in the Sydney Morning Herald and Sunday Life magazine.

PN72

In relation to the Good Weekend, the last edition has already been printed, hasn't it, in this year?---The last edition has been printed, but the critical way of realising the value of that magazine is to distribute that magazine. As you will understand there is no cover price revenue that comes from that. We receive our revenue from the Good Weekend Magazine by distributing it in our newspaper and getting it out to our readers. So whilst the magazine has been printed, failure to deliver the magazine on time to the readership puts the company at significant financial risk.

**** MARK SCOTT XXN MR RYAN
PN73

You've already given evidence that the Herald has always come out, haven't
you?---The Sydney Morning Herald to this point has always appeared.

PN74

Can I refer you to paragraphs 61 to 64?---Yes.

PN75

In relation to paragraph 61 you refer to both the Illawarra Mercury and the Newcastle Herald being covered by the certified agreement?---Yes.

PN76

Are you aware that - have there been stop work meetings held yesterday at those two publications?---I understand that there were stop work meetings at the regional publications.

PN77

Regional publications?---Mm.

PN78

Are you aware, was there any industrial action taken as a result of those stop work meetings?---I understand that the staff returned to work and the newspapers came out on schedule.

PN79

I have no further questions, thank you, Commissioner.

PN80

MR GOOT: No re-examination.

<THE WITNESS WITHDREW [1.42PM]

PN81

MR GOOT: We have no further evidence, Commissioner, and I am happy now to address briefly on the merits of the application.

PN82

MR RYAN: I wonder before Mr Goot does that, if I could have a short 10 minute adjournment, Commissioner, just to check some of the things that he was acknowledging, housekeeping matters. I haven't had a chance to have a look at this yet.

PN83

THE COMMISSIONER: Okay.

PN84

MR GOOT: We have no objection to that.

PN85

THE COMMISSIONER: I'll adjourn until ten to 2.

<SHORT ADJOURNMENT [1.43PM]
<RESUMED [1.59PM]

PN86

MR GOOT: Commissioner, just before you hear from Mr Ryan, can I just add an address to the form of order, in paragraph 2.1(c)(i) there's a reference to John Fairfax Publications at Darling Park, 201 Sussex Street, Sydney. Can I have added to that these words, "and at 379 Collins Street, Melbourne, 3000". That is the address, Commissioner, at which John Fairfax Publications Pty Ltd publishes the Australian Financial Review in Melbourne and it links to the evidence contained in paragraphs 61 and following about the other publications.

PN87

THE COMMISSIONER: Thank you. Mr Ryan?

PN88

MR RYAN: Commissioner, the power to grant orders is discretionary, as you're well aware. We would say in this particular case that orders should not be made. The action taken by our members if is borne out of absolute frustration that the company they work for is throwing money around left, right and centre that a handful of executives, while cutting the journalistic staff, is supposed to produce the quality of paper this company is well known for, the reputation that it richly deserves, the quality of their publications, and when they see almost $6m going in one hit in the form of the outgoing CEO, to say goodbye to him and his brief reign, and to take on board the new CEO, you can understand the frustration when at the same time so many jobs go and they seek and talks about a new EBA that frees the pay of a large number of their own employees by saying they will not be entitled to a pay increase and you may have seen this morning in the Australian in the media section a bloodied Mr Myers, who was a photographer for Mr Fairfax, in this case it probably does demand blood of its employees.

PN89

He would be one of the people who would not get a pay increase if the company's proposal is accepted by the union and its members. I state by way of passing that apparently Mr Myers has not had one phone call from any executive of the company inquiring as to his wellbeing which I think, as far as we all know, sums up the attitude of this company's executives to its staff, one of disregard in total. Morally we say this company should not be able to profit from its bad corporate activities by the granting of these orders.

PN90

In the unlikely order that you do grant the orders, Commissioner, can I just take you to some concerns we have with the way they're drafted at the moment. I assume our members at Parliament House in Canberra can do what they like, because they're not sought to be covered by the order. In relation to 3.3(a)(i), and I say this quite deliberately, Commissioner, there is no way an alliance official will go on site by 4 o'clock today in Sydney, Wollongong or Newcastle while our members are on site. We will not post these orders on the noticeboards at those sites where our members are on strike.

PN91

In relation to 3.3(a)(ii), use their best endeavours to contact each of the members by telephone by no later than 4 o'clock today, well, unfortunately the vast majority of numbers we have are work numbers for our members. We have a few private numbers and some mobile numbers, but I'm almost sure by our membership manager that the vast bulk of members, where they actually give us numbers, are work contact numbers. The same with email addresses. They're in the main email addresses. I can certainly say that we would not incite, advise, encourage members to breach an order made with the exception of - well, I firmly put on the record that we will not, as full time officials, visit a work place where our members are on site to post any notice.

PN92

Then in relation to the duration of the order sought until 30 June 2006 we say that is wildly excessive in relation to the period of the order which has affect for - we say also of course we are aware that the new legislation will come into effect by all accounts March of next year. We certainly think, to the best of my reading, and god knows, it's confusing as it is, to try and make sense of all of that, it would appear that there are sort of no transitional arrangements for the matters that have commenced here, so we would not be suggesting that an order should go past the proclamation date of the new legislation. But as I said, our primary submission is that, Commissioner, that a company which hasn't got clean hands, should not enjoy the benefits of the provisions of this Act by forcing our members back to work in circumstances where the company are showing the complete disregard to the work that staff put into this company.

PN93

Finally, there is absolutely no evidence before you that an order should be made asserting members employed at the Illawarra Mercury or the Newcastle Herald - in fact, the evidence is to the contrary, stop work meetings have been held and they have returned to work. They have not taken unprotected industrial action and the foundation has not been laid for those two companies that incorporate any order that may make, action isn't pending or probable. In fact, I said the opposite. If the Commission pleases.

PN94

THE COMMISSIONER: What's the union's position in respect of The Age?

PN95

MR RYAN: We are in a position concerning members at Darling Park yesterday which is obviously what happened. My understanding is that they are meeting at 3.30 this afternoon and the decision .... ain't worth too much, Commissioner. I wouldn't like to say one way or the other what's likely to happen, as I understand you can imagine, although I'm advised by the Federal Secretary his view is that it's unlikely that anything will happen to The Age and we would certainly seek, if that was the case, that any order concerning The Age would not come into effect until the results of that meeting was known. Because, again, there's no evidence to show that industrial action is probable or impending. That's the onus on the company to show that.

PN96

They haven't met the burden which would trigger will discretion be granted in the order in relation to, certainly in the case of Newcastle and Wollongong, and again, in the case of The Age down in Melbourne. But again a similar situation with the Australian Financial Review, Commissioner. They have not met at this stage and they are still working as normal. There's nothing in the affidavit of Mr Scott that would allow you, I would submit, to make that necessary first step of saying action is likely or probable impending because the facts just aren't there for you to make such a finding.

PN97

THE COMMISSIONER: Can I ask you about the Sydney Morning Herald and the Sun Herald members, well, members employed on those two publications. Is there any likelihood of a meeting before Friday or tomorrow at 4 pm?

PN98

MR RYAN: I'll just check the book. Most of the house committee is here.

PN99

THE COMMISSIONER: Yes. Well, more specifically, Mr Ryan - - -

PN100

MR RYAN: Commissioner, I'm advised that a lot of goodwill from the people on the house committee, we can organise a meeting for 10 o'clock tomorrow morning.

PN101

THE COMMISSIONER: Well, more specifically can I put it to you. Being one of those people who are reluctant to issue orders because orders may be effective in the legal sense of any resumption, but they don't go to resolving the underlying issue. Whilst they might understand the feelings of your members about recent redundancies and comings and goings of senior people within the company, the provisions of the Act don't take those issues into account and I'm faced with the uncontested evidence that there is currently a strike which is illegitimate in the sense of your commitments under the current agreement and other factors which favour the company's application for an order. But if there is a way of addressing the core issues and giving a speedy resumption of work, where those issues can be addressed, I'm one of those that thinks that that's the better way to go, but without prejudice to the company's application.

PN102

MR RYAN: I'm advised, Commissioner, that if the company was willing to meet with us tomorrow we would be recommending a return to work at that 10 o'clock meeting.

PN103

MR GOOT: Mr Commissioner, might I respond briefly. It's simply not to the point that members of the union are frustrated. Each of us has frustrations in life to deal with them in the lawful way. And it ill behoves, and I'm surprised that Mr Ryan makes the submission, but it ill behoves them to make the submission that we come here other than with clean hands. Nothing could be more contrary to the facts. Notwithstanding we had no obligation to do so, we entered into negotiations five months prior to the due date in relation to a new certified agreement on condition that there be no unlawful industrial action.

PN104

Our voluntary redundancy program is being carried out strictly in accordance with the agreement made with the union in 2003. We agreed to the discussions that have been ongoing since October in good faith, but on the conditions that I've indicated, and yesterday we withdraw a negotiating position on a matter we had previously regarded as critical. We're told this will help or this is very helpful or something along those lines, and for our troubles, we have an indefinite stoppage. And we're told that we come here without clean hands.

PN105

Now, the short answer is that, Mr Commissioner, the orders ought to be made. We are certainly not prepared to countenance an proposition that the union will recommend to a stop work meeting of members at 10 o'clock tomorrow, a resumption of work, if we meet with them to negotiate tomorrow. We are not going to agree to anything conditionally. We are entitled to approach the Commission for orders under section 127. There has been no challenge to our evidence as to the basis for the application, the damage that will be caused, we decide, paragraph 48, non publication of the Herald, otherwise the damage that will be caused, and we seek the orders be made.

PN106

Can I deal with the form of the orders about which some criticism has been made. Firstly, we are told that in paragraph 3.3(a)(i) the union will not post a notice on the noticeboard at sites which are on strike. That is the Sydney site only at this stage. Our answer to that submission, Commissioner, is simply this. If the Commission requires the union to do it, it must do it. It's not a question of whether it wants to do it or whether it has a policy opposed to doing it or would prefer not to do it, or it hasn't got time to do it. That's got nothing to do with it.

PN107

3.3(a)(ii) is a use their best endeavours clause to contact each of the members by telephone. Now, if the suggestion is that 4 pm is too tight, we would consider extending that contact time till 6 pm or some other time, but no suggestion has been made that the timing is too tight. Mr Ryan has said, well, we've only got their work - we've got some mobiles, but mainly work telephone numbers and work email addresses. Well, the union here is required to use its best endeavours. I note interestingly that if it was a matter of convening a meeting, a stop work meeting tomorrow at 9 o'clock or 10 o'clock, I think it was, that could be arranged with the goodwill of the house committee. The house committee comprises presumably members of the union.

PN108

Presumably the union can use its best endeavours to contact people today to tell them to report for duty at 9 o'clock tomorrow. So we say there is no substance to the opposition to those aspects of the order. I am indebted to my learned friend, Mr Ryan, for pointing to a gap in the orders. We would add to subparagraph 2.1(c)(1) and (ii) the addresses "and at Parliament House Canberra". And finally we accept, Mr Commissioner, that there is no evidence of proposed stop work meetings involving the Illawarra Mercury or the Newcastle Herald and I say no more than that.

PN109

There is however a stop work meeting taking place this afternoon in relation to employees of The Age and there is no prejudice whatsoever to the union in the orders attaching to their members employed at The Age. If they vote not to go out, that's wonderful, and they won't be disadvantaged by the order being made against them. If they vote to go out, then this would be - if they were minded to vote to go out, then this would be a restraint on that occurring. It's simply too late in the day to say, as Mr Ryan wants us to act, wait until they vote and then come back.

PN110

We know there is a stop work meeting taking place. We haven't been told by Mr Ryan what the recommendation will be to the union to that stop work meeting. We have been told and we can infer that the union made a recommendation yesterday which was not complied with by the members. We can infer that from Mr Ryan's remarks. In our submission it doesn't pass the duck test. That is, if it looks like a duck and it quacks, it's a duck, and the stop work meetings - if it looks and walks like a duck, and quacks, it's still a duck. And probably a certiorari, a duck. So that we say because we're entitled to the orders as sought and we would ask you, Mr Commissioner, to make those orders in terms as amended by those addresses that I've indicated.

PN111

THE COMMISSIONER: Thank you. Anything further? I'm going to adjourn for hopefully no more than 15 minutes and issue a decision on transcript.

<SHORT ADJOURNMENT [2.20PM]
<RESUMED [2.43PM]

PN112

THE COMMISSIONER: This is an application by John Fairfax Publications Pty Ltd for an order to stop or prevent industrial action pursuant to section 127 of the Workplace Relations Act 1996. Section 127(1) of the Act is a discretionary power in that the Commission, may by order give directions that the industrial action stop or not occur. The issuing or an order is a serious step given that it requires the persons or organisations to which it applies to comply or be faced with an application for injunctive relief.

PN113

The jurisdictional prerequisites required before an order can issue are that industrial action is happening, threatened, impending or probable and the industrial action is in relation to work that is regulated by an award or a certified agreement and the application is brought by a person who is likely to be directed affected by the industrial action. In this matter I am satisfied that having regard to the uncontested evidence of Mr Scott that industrial action as defined is happening, threatened and impending.

PN114

Section 127(1)(c) provides that the industrial action which is happening or is threatened or impending or probable must be in relation to work that is regulated by an award or a certified agreement. The parties to these proceedings are respondent to the John Fairfax Group Journalists Certified Agreement 2003 and the Journalists Joint Fairfax Group Award 2001. I am satisfied that the industrial action by MEAA members in respect of work performed by John Fairfax is in relation to the award and the agreement that I've just mentioned.

PN115

I'm further satisfied that the applicant in this matter is directly affected by the industrial action and has standing to institute the proceedings pursuant to section 127(2)(b). Accordingly there are no jurisdictional impediments in issue in the orders sought. In considering whether the industrial action is made subject to a 127 order is illegitimate such that it warrants an order rendering it unlawful, the following factors need to be considered: (1) the conduct of the parties, (2) compliance with a disputes settling procedure, and (3) the relevance of the certified agreement. I make no comment as to the conduct of the parties generally, but note that the relevant agreement contains a dispute settling procedure which on its face has not been complied with by the MEAA.

PN116

The parties are bound by a certified agreement which contains also a no extra claims clause. This agreement does not expire until June 2006. There is also provisions in the Act under section 170MN which provides that industrial action must not be taken until after the nominal expiry date of the agreement. In this matter, and having regard to the evidence of Mr Scott and the submissions of the parties, I have concluded that industrial action which has occurred and is threatened is prohibited by the Act. For these reasons I have therefore decided to exercise my discretion and grant an order in an amended form to that proposed by John Fairfax.

PN117

The order will flow on only to those members of the union who normally work at John Fairfax Publications, Darling Park, The Age at Collins Street, Melbourne and at Parliament House, Canberra. The order will take effect from 5 pm today and will remain in force for a period of one month. Copies of the order will now be provided to the parties. These proceedings stand adjourned.

<ADJOURNED INDEFINITELY [2.47PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARK SCOTT, SWORN PN28
EXAMINATION-IN-CHIEF BY MR GOOT PN28
EXHIBIT #S1 AFFIDAVIT OF MARK SCOTT PN36
CROSS-EXAMINATION BY MR RYAN PN36
THE WITNESS WITHDREW PN80