C2005/1650, Transcript of Proceedings [2005] AIRCTrans 337 (11 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10309

SENIOR DEPUTY PRESIDENT HAMBERGER

C2005/1650

s.45 appeal to Full Bench

APPEAL BY DYNO NOBEL ASIA PACIFIC LIMITED
(C2005/1650)

THURSDAY, 27 JANUARY 2005

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

Reserved for Decision

PN1

MR A HERBERT: I seek leave to appear as counsel on behalf of
Dyno Nobel Asia Pacific Limited, who is the appellant and the applicant for a stay.

PN2

MR T SLEVIN: I seek leave to appear for the union, opposing the stay.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. And leave is granted. Mr Herbert?

PN4

MR HERBERT: Has your Honour received written submissions that were sent through to the registry or to your Honour's chambers?

PN5

THE SENIOR DEPUTY PRESIDENT: I have and you can take it that I have read them, mind you I am just trying to find them, but you can take it that I have actually read them.

PN6

MR HERBERT: Thank you, your Honour. They encapsulate much of what we have to say about the matter, but I need to expand a little bit on some of the matters that I raised. I think we are, having regard to the authorities that I understand my learned friend is to refer to in relation to the principles applicable in the case of a stay, I think we are agreed as to what those principles are. I think my friend proposes to refer to an authority of Vice President Ross, which effectively replicates exactly what we have said are the relevant principles, so I won't trouble your Honour any further with any submissions as to that.

PN7

The issue then is the question as to whether there is an arguable case both on merit and on leave and in the event that we are able to persuade your Honour of that, then the question of balance of convenience looms large. Dealing with the question of an arguable case, both on merit and on leave to appeal can I say, your Honour, that this matter has very wide implications, not only for industrial regulation in the coal industry, but for industrial regulation under the system under the Workplace Relations Act more generally. And it is for this reason the question thrown up by these proceedings by this appeal relates to the issue as to the extent to which an employer, who engages with a customer in the customer's industry, thereby is taken to be engaging in the customer's industry to the point where the employees of the employer become persons who are eligible to join the union, which has eligibility rights in relation to the customer's industry as opposed to the employer's industry.

PN8

The authorities seem to be clear. We have quoted the actual authority for about 85 years now, it has been accepted that as per paragraph 4 of the written submission, from Hibbles case, that the union which was the predecessor of the CFMEU in this area, and whose eligibility rule was uplifted and placed into the eligibility rule of the CFMEU was held as early as 1921 in that authority we have quoted. That rule was held to be a rule which refers to the industry, that is the coal and shale industry, the industry of the employer. And the point that was made in the proceedings, is that before any person is entitled to be a member of the CFMEU in accordance with that rule, it is the employer that must be engaged in the coal or shale industry. And what the employees actually do in their day to day work is very interesting, but it amounts to nothing, unless their performance of work on a coal lease, for example, constitutes the employer as somebody who is engaged in or in connection with an industry.

PN9

Dyno Nobel on the material - do I take it your Honour has a copy of the decision of Senior Deputy President Drake?

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR HERBERT: Thank you. Could I summarise the uncontroversial material in this way, and that is that Dyno Nobel manufactures, sells and distributes and transports explosives. And explosives of their very nature, of course is something that the manufacturer doesn't usually use themselves, it is something that they sell to other people who use it in the course of their business. Dyno Nobel in that sense, it is put in the proceedings, was the manufacturer and the supplier of a consumable product to other industries, all sorts of mining industries, coal, non-coal, other things, that is listed in the decision, the customers to which Dyno Nobel supplies its product.

PN12

It earns its revenue principally from the manufacture and sale of the product, it does provide, incidentally to that, some services in the sense that it transports product to mine sites as part of the manufacturing process of necessity is best completed, that is that the explosive mixture itself is best created instantaneously before it is actually placed in the ground That way, it is much safer to carry and to transport, and for that reason the last step of the manufacturing process, that is mixing two inert subjects, two or three inert substances to make a single explosive substance, is done on site, on coal mining sites as the last step of the manufacturing process, which they are contracted to perform. But that is of necessity, done on the customer's premises.

PN13

They perform services of that kind, in addition there are some other, in the broad picture of things, very minor services that are provided where they have, in some very limited circumstances, agreed to detonate the product on behalf of the customer. That is the product which they have manufactured, and there are some very limited shot firing services that are provided. They constitute a miniscule amount overall of the business of the company. The company then can be, it is submitted and was submitted, can be characterised as the provider, the manufacturer and the seller of a consumable product, which it sells and provides and delivers to the customer's door literally, in the coalmining industry and fundamentally that is its business.

PN14

It also sells and provides and distributes to the customer's door exactly, well a very similar product, in metalliferous mining industry, copper mines, iron ore mines, gold mines, all sorts of other mines. It provides an identical service to other miners. The issue here is then whether providing a service as it were up close and personal to the customer, constitutes that employer as engaging in the customer's industry, as opposed to engaging with the customer's industry. The point of distinction is incredibly important. If it is engaging in the customer's industry, in these circumstances, the rules of the CFMEU would allow it to cover the employees of the employer, and that on first principles would seem to mean all of the employees of the employer, including those engaged in factories that are completely remote from coal sites which have nothing to do with coal sites or where the product goes to a copper mine or a coalmine, but they are employed by the same employer. The question arises then as to the proper characterisation of an employer, in this context, having regard to the purpose for which the eligibility rules of the union are designed to serve. That is to determine the vocation of the employees by reference to the business of the employer.

PN15

There is an appeal against a decision of Senior Deputy President Drake, in which her Honour found that the employees, in essence, that the employees of Dyno Nobel, or the employees who performed their work on or about coalmining leases, did work which was within the coal mining industry, that is the employees' work was done within the coalmining industry, and assisted the coalminer in its objectives. And that that of itself constituted a sufficient basis to determine that Dyno Nobel, thereby, was engaged in the industry because some of its employees were performing work in the industry.

PN16

There are a number of authorities, of very ancient and reputable standing, which are completely opposed to that notion. We have submitted on appeal, and we submit now, that that decision failed completely to have regard to the business of Dyno Nobel and the reason that those employees were on that site. Her Honour specifically held at paragraph 359 of the decision for example:

PN17

The question I have to determine is whether or not the work performed by the employees of Dyno Nobel, and therefore the industry in which Dyno Nobel operates in relation to those employees, is work in or connection with the coal industry.

PN18

With respect that is absolutely the wrong question, that is not the question that her Honour was required to answer. I go on:

PN19

I do not believe I have to give prominence in my consideration of this question to a panoramic view of Dyno Nobel's operations as pressed upon me by Mr Herbert.

PN20

Your Honour, that is a reference to the pressing by me of a view that if Dyno Nobel had, for example, 500 employees engaged in a factory manufacturing explosives for the world, and two employees who were out on a coalmining site blowing that explosives up, that the two employees would cause the other 300 to become eligible to be members of the CFMEU, despite the fact that they had no connection whatsoever with anything to do with the coalmining industry. And the work of two employees was sufficient to characterise the activities of Dyno Nobel as being in or in connection with the coalmining industry. Were that the case, and this was the further point that was put, were that the principle to be brought into effect as her Honour appears to suggest that it is, then Dyno Nobel is engaged in the industry of every single one of its customers, where it carries the product onto the site and puts the product down on the ground in the site at the customer's door. and it would thereby - its employees would thereby be eligible to join every single one of the unions who had, as their eligibility turf if you like, the industries to which Dyno was delivering its product.

PN21

Now, the issues that are raised by that that excite both merit concerns and the public interest are that her Honour in paragraph 359 clearly addressed the wrong question in this case. It is not the question as to whether or not the work performed by the employees of Dyno Nobel, and therefore the industry in which Dyno Nobel operates, is work in or connection with the coal industry, but rather the question of whether some work performed on a coalmining lease, irrespective of the purpose and the scope of that work, is sufficient to thereby constitute Dyno Nobel as being a player. Not just a player, but a participant in the coalmining industry as a corporation and as a business. That is the question that should have been asked and it wasn't.

PN22

Secondly, her Honour expressly disavowed the notion that she should look at the whole of the company's operations. If 0.04 percent of the revenue earned by the company is earned in shot firing activities, for example, is that enough to constitute the business of Dyno Nobel, as a whole, and all employees of Dyno Nobel as being employees who are in engaged in or in connection with the coalmining industry because Dyno Nobel as a company engages in the coalmining industry. Those are, in summary, the two fundamental errors we say that her Honour committed in an analysis of this matter. They are the merit issues.

PN23

The public interest issue is this, that this goes to the question of all of the suppliers and contractors to the coalmining industry, every one of them that supplies any form of consumable product or a service to a coalminer, in accordance with this decision, becomes liable to have its workforce eligible to join the CFMEU and to be subjected to industrial action and other pressures from the CFMEU in that regard, irrespective of whether that company has a massive operation elsewhere in a completely different and distinct industry. The mere fact as it were of stepping across the borders of a coal lease in the part of your operation of itself renders your business as being a business in or in connection with the coalmining industry if this decision is pressed to its logical conclusion.

PN24

And I don't say that lightly, because one would have to say that the provision of a consumable product, such as fuel for the earthmoving equipment, tyres for the equipment, even the provision of 25 Land Rovers to drive around the mining lease, all of those matters, and the provision perhaps and the chemical support for the equipment that is provided, all of those issues which were, one would have to say, previously considered to be services and consumables provided to the industry are now seen to be as a consequence of this decision as rendering all of those suppliers as being persons whose businesses are engaged in the industry, and whose employees thereby are able to become members of the CFMEU.

PN25

This particular matter was one of three that went forward to hearing. There are a number of others that went forward at other times for hearing in relation to these issues. There are a wide range of employers who are, as we understand it, are yet to be dealt with in relation to issues of this kind, who are properly characterised as being the supplier of products and services to the industry, that is employers who deal with the industry, as opposed to become involved in the industry.

PN26

So your Honour, those are the issues, and I have skated over the matters, we have set them out in some detail in the written submissions, but in order to explain to your Honour, why it is we say that the decision is tainted by quite significant error and that the fundamental error that we have identified is set out in - or the main error is set out in paragraph 8, of the written submissions, and paragraph 9. We rely on the authority of Re Moore v Others, the Poon Bros case, we set out some passages there at the end of paragraph 9. Your Honour, those are the matters that we rely upon in terms of merit and entitlement to be granted leave to appeal, because of the public interest aspect of the matter, or public importance aspect.

PN27

There is a further issue that is raised, in paragraph 11, of the written submissions. No party, neither the CFMEU nor Dyno Nobel, submitted to her Honour, that a dispute finding in the terms that she made should be made. Both parties submitted, in terms of her Honour's conclusion or stated intension which is set out in paragraph 406 of her decision, and we have set out in paragraph 11 of the written submissions what her Honour said in paragraph 406, she:

PN28

Intended to find an industrial dispute exists, between the three employer respondents and the CFMEU, in relation to the work I have found to be work in the coal industry or in connection with the coal industry.

PN29

Your Honour, that really throws up the error that her Honour made in our submission, but in any event, her Honour said that she intended to find a dispute, in relation to the work which she found to be work in the coal industry or in connection with the coal industry. The finding of a dispute itself went well beyond that. Her Honour did not confine the dispute finding to the persons, or the work of persons, engaged in work on coal leases or the other work that she discussed in her decision. She found the employer and the union to be in dispute, and the subject matter of the dispute simply was the matters which are set out in the log of claims, and the log of claims purports to apply to all persons eligible of being members of the CFMEU.

PN30

Your Honour, the breadth of that remains a major debate in this matter. But by any measure or means the dispute finding itself went beyond her Honour's stated intension, further to that it went well beyond a concession, that was made in the course of the proceedings by Ms Grey who was appearing in the proceedings, to the effect that the union was only seeking a dispute finding in relation to people working on coalmines, and that concession was made, in transcript, and was the basis upon which the proceedings went forward and as we understand it, formed the basis of the comments that her Honour made, or the stated intention of her Honour, as expressed in paragraph 406 of the decision. And that is that the dispute finding was only to apply to persons engaged in work, which she had found to be - employee work, not employer work, but employee work - within the coalmining industry. The dispute finding itself goes much wider than that. The dispute finding says:

PN31

There is in existence an industrial dispute within the meaning of the Act between the CFMEU and the respondents listed in schedule A.

PN32

And my client's listed in schedule A:

PN33

The subject matters which are in dispute insofar as they are industrial matters within the Act, are set out in the letter of demand and marked D with that log of claims admitted in conformity with -

PN34

Et cetera. Now, that log of claims purports to apply to all persons who, are or are eligible to be members of the CFMEU.

PN35

Any employee of such employer -

PN36

This is paragraph 1(b) of the log of claims:

PN37

These claims shall be binding on (a) any employer -

PN38

Et cetera:

PN39

(b) Any employee, of such employer who is eligible for membership of the CFMEU whether a member of the CFMEU or not.

PN40

Now, that is vastly wider than her Honour was asked - than the dispute her Honour was asked to find in the proceedings. It is vastly wider than the dispute that her Honour said she was going to find in the proceedings, and is of indeterminate ambit in that it has not been determined, her Honour only found that certain employees were engaged in work in the coalmining industry, she did not find, in that sense, that the employer itself was engaged in the coalmining industry other than by some automatic process.

PN41

But if she did, then if she was taken to have done that, then what her Honour has done is found a dispute between the CFMEU and Dyno Nobel in relation to all of its employees, including the significant number, some 94 employees, by far the majority of employees of the company, who are engaged, either at manufacturing and assembly plants, which have no connection with any mining site whatsoever, or employees who are engaged exclusively in non-coalmining activities and who service non-coal operations. Now, I have taken that number of 94 employees out of the total number of employees from page 13 of her Honour's decision, where she summarises the evidence given about that. There is a table on page 13 of the decision.

PN42

So her Honour has found a dispute, it appears, to exist between the CFMEU and the company in relation to those 94 employees who, as far as we know, have never seen a coalmine or been anywhere near one.

PN43

THE SENIOR DEPUTY PRESIDENT: Sorry. I mean Her Honour's decision refers to those who are eligible to be members of the CFMEU. I mean it is a bit circular, but are you saying that she also found that all employees of Dyno Nobel were eligible to be members of the CFMEU.

PN44

MR HERBERT: Well, your Honour, that is the vice of the original decision if I can say that, with the utmost respect to your Honour. It is that because the CFMEU rule is an employer rule, that is when it says:

PN45

Persons engaged in the industry of coal and shale mining

or:

PN46

In, or connection with, the industry of coal and shale mining

PN47

That means they are engaged by an employer who is engaged in that industry. It must follow, one would have to say, that if they are engaged by an employer who is engaged in that industry - or sorry, if they are employed by an employer who is engaged in that industry, they are eligible to join the CFMEU, and it doesn't matter that the employer, it follows from the decision, that it doesn't matter if the employer engages in that industry one day a year, or one week a year, or in relation to one per cent of its workforce. It is still engaging in the industry relevantly, ergo all of its employees are eligible to join the CFMEU, even if they are working in a nursing home.

PN48

If it was Main Health for example, that had a division that went onto a coal lease, eligibility flows back over the whole of the corporation and whole of the employer's employees. And we say, because of that consequence, and because of the significance of that, then great care must be taken to determine whether the business itself can be said to have immersed itself in its customer's business so much that it can be taken to be no longer supplying a service to the industry, or providing a considerable commodity to that industry, but to itself have immersed itself in and become engaged in the industry. Because, your Honour, I assume your Honour - - -

PN49

THE SENIOR DEPUTY PRESIDENT: No, that is okay. Actually you have answered my question, I am just also conscious of the time.

PN50

MR HERBERT: Sorry.

PN51

THE SENIOR DEPUTY PRESIDENT: I was wondering whether you might like to go onto the issue of balance of convenience?

PN52

MR HERBERT: Certainly your Honour. Your Honour, I was about to say, and it is relevant to the balance of convenience. Dyno Nobel is a respondent to the Explosives Award, there is an award of this Commission which binds it in relation to all of the relevant employees. So they are all covered by an existing Federal Award. The 111(1)(g) case hasn't been run yet, but one would have to say in the circumstances that this idea of taking one company out of its existing award coverage with a view to making a whole fresh award to cover a number of its employees, has some difficulty about it.

PN53

The balance of convenience argument is this, your Honour. It is set out in paragraphs 12 and forward of the written submission. Can I summarise it in this way, that the Coal and Allied decision which, your Honour, we have arranged to have emailed through to your Honour's chambers, that is referred to in paragraph 17, makes it clear on an analysis by a full bench of these issues, that an order which has been appealed is a temporary order, pending the outcome of the appeal and a stay which stays that order is also a temporary order. So it is really a case of balancing temporary orders, one against the other, it is not as if the original order is set in concrete and needs to have a very large jack hammer to chisel it away. Whilst the appeal is pending, it must be treated as being a temporary order, and that full bench decision is authority for that proposition.

PN54

That being so what has happened and we have attached to the submissions the correspondence which has followed Senior Deputy President Drake's decision, and that is that there has been on 29 December 2004 a notice of initiation of bargaining period some, not too many days after her Honour's decision was handed down. After the dispute finding was actually formally made, that notice came six days later. There was then some correspondence from my instructing solicitors on behalf of my client dated 18 January. On 24 January there was a notice of initiation, it is dated 24 January 2004, but it should be 2005.

PN55

There is a notice of initiation of industrial action from tomorrow. From 6 am tomorrow to continue until 6 pm on Friday 28 January, all of it, all of this process on the back of the dispute finding. It was deferred until after the dispute finding was handed down, it was commenced six days after the dispute finding was handed down. The simple proposition is this, if there is no eligibility on the part of the CFMEU to represent the relevant employees, they have no capacity to enter into a certified agreement with those employees under 170LK, they have no capacity to initiate or commence industrial action or bargaining periods or anything else relevantly.

PN56

They are doing so because of the Order of Senior Deputy President Drake now to compel my client into a position which would lead the appeal result to be essentially nugatory. If my client was to succumb to that industrial pressure, in the intervening period, it would mean that all of the relevant rights of the parties would be, in a practical sense, completely frustrated and that my clients would then be in a position of not being able to un ring the bell, as it were, were they compelled to take this matter to the point of certification. The other difficulty is - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Can I just ask, sorry could I just interrupt. I understand the logic of saying that if it is held that the CFMEU is eligible to enrol these employees, then the CFMEU is eligible to initiate a bargaining period and to take protective industrial action and have a certified agreement, and if it is not, it is not. But by staying the decision - I accept that Senior Deputy President Drake's decision does entail and accept a construction of the eligibility rules of the CFMEU that the employees, or at least some of the employees, possibly all of the employees on your reasoning, at Dyno Nobel are eligible to join the CFMEU. But if one were to stay the decision, it doesn't necessarily follow does it ipso facto that they are not eligible to join the CFMEU, it just sort of suspends the decision of the Commission that they are eligible, it doesn't necessarily mean - it does not mean they are probably not.

PN58

MR HERBERT: Your Honour raises an interesting point, if I can say so respectfully, because there will be no dispute finding, that much is certain, there will be a determination by the Commission at that point that the dispute finding itself ought not to continue in force and effect pending the appeal and that the parties are then placed back into the position of status quo in which they formerly were, which was a period during which this sort of action was not taken.

PN59

THE SENIOR DEPUTY PRESIDENT: Can I just interrupt again, sorry. The dispute finding will be, if you like, suspended, but while the dispute finding was premised on a particular construction of the CFMEU's eligibility rule, isn't it true to say that the CFMEU could still argue that they are eligible to enrol those employees and therefore any industrial - if they follow all the correct procedures, they can still initiate a bargaining period, take protective industrial action, get a certified agreement. Arguably, they wouldn't be able to use the decision of Senior Deputy President Drake to justify that, but it wouldn't automatically follow that. You are saying that the status quo is that they don't have eligibility.

PN60

MR HERBERT: The status quo was that there was no determination of the Commission that they did, and very strong arguments that they didn't, and that the matter is under review by a full bench. Now, if that determination is set aside, then parties proceed at their own peril in relation to taking action. Your Honour is quite correct, with respect, when your Honour says that ipso facto the setting aside of this dispute finding will not necessarily remove the eligibility, which is otherwise said to be conferred by an interpretation by Senior Deputy President Drake. Parties can still take their own advice about that and we will have to take our chances about that.

PN61

A question of conciliation, in relation to this issue about the industrial dispute is listed before Commissioner Bacon this afternoon, and we are in a position, because of the notice pushing my clients into a very difficult position. Can I put it this way your Honour, they cannot agree to the matters that are proposed for a certified agreement because the simple practical fact, they cannot depose in the relevant statutory declaration truthfully, to the fact that they believe the CFMEU has the requisite eligibility and that the agreement is capable of certification by the Commission.

PN62

On the state of their current advice, I understand in the proceedings before Senior Deputy President Drake, a couple of previous certified agreements that were entered into by my client in a different environment and of a state of different advice and understanding about these matters, were tendered and I understand that there are statutory declarations which were filed at that time that suggested that, at that stage, my client was of the view that the CFMEU did have coverage and that the Production and Engineering Award, which doesn't bind my client at all, ought to be taken to be the relevant safety net award.

PN63

Now, the present state of things on my client's very strict instructions is whatever might have been their belief about matters two or three or four years ago when those transactions were entered into, they no longer harbour that belief, and that their current belief is in accordance with the stance they have taken in these proceedings, and that is that on getting advice about the matter and on proper consideration of the matter, they now consider that the CFMEU does not have eligibility, they could not approach this Commission truthfully, and say otherwise in a statutory declaration. So to that point of view, the industrial action which has been brought is pointless, because my client cannot concede to the claims that are being made without, on its view, perjuring itself before the Commission in relation to any resulting agreement, and it is obviously not prepared to do that.

PN64

So that the matter ought to be held in abeyance pending a determination by the full bench as to whether we are right about that or whether we are wrong. If a full bench of this Commission determines that the requisite eligibility does exist, then my client would be bound by that and would be perfectly prepared to go forward, were that a matter of certification. By the same token, if a full bench decides the requisite eligibility doesn't exist, then my client would be immune from any of this action that is currently being taken, and they can proceed in accordance with their obligations under the Explosives Award, which does bind them, and any other approaches that might be made in accordance with that Award.

PN65

But your Honour, in terms of balance of convenience, my client is now stuck very firmly between the proverbial rock and the proverbial very hard place. They can't accede to these demands, industrial action will be taken to force them to do so in circumstances where a full bench in the very near future may very well be determining that all of this industrial action which is foreshadowed would probably be unlawful, certainly not protected. My client can't bring a section 127 application in relation to it, whilst the dispute finding stands, and whilst there is a view about the eligibility. It really just has to stand there, accept the occurrence of industrial action at a very great cost to itself and can, truthfully and honestly, do nothing about it. And that is a very undesirable state of affairs for my client to be subjected to.

PN66

If a stay is granted and the union does proceed in that way still, despite all of that, then we may have some remedies, in relation to 127 that we can bring in relation to bringing this matter to a head. But we ask, that as a first step in that process, that your Honour stay the decision of Senior Deputy President Drake.

PN67

THE SENIOR DEPUTY PRESIDENT: Can I just ask, in terms of the purpose, there are the three grounds, or the three issues that I need to determine in grants of stay, there is there is the arguable case of the balance of convenience, and there is also this one that has been described as there has got to be a purpose to granting the stay. What would you say the purpose would be?

PN68

MR HERBERT: The purpose is that it would remove from the record of the Commission a determination of the Commission that the CFMEU has the requisite eligibility, pending a full bench consideration of whether that determination should stand or be set aside. That would then leave it open if industrial action was still to proceed and it would leave it open to my client to maintain its section 127 proceedings that the action is not protected. And therefore, section 127 can protect my client, again pending the appeal, so that my client can have a final determination of the question as to whether they can lawfully enter into a certified agreement with the CFMEU or not.

PN69

As I say, the purpose is to protect them from, in effect, much of the risk of industrial action pending the full bench appeal in circumstances where, on their current state of bona fide belief in this matter the industrial action can serve no purpose other than to damage my client's interests with no capacity on their part to respond or to agree. And so the purpose is to protect them from the provisions of the Act, having a grossly unfair operation against my client. They can't agree, they can't stop the protective action, they can't do anything. They are stuck in the middle. And that would be a very unfair ongoing operation of the act against my client in circumstances where it is less than a month away from the appeal.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Herbert. Mr Slevin.

PN71

MR SLEVIN: Thank you, your Honour. Your Honour used the term circular. I don't think my friend's applications and arguments are circular, I think they are all over the place. The application for a stay, and if I start with the balance of convenience argument that my friend has just been dealing with, the application for the stay simply for the purpose of removing from the record of this Commission a finding that the CFMEU has eligibility to cover employees of this employer, is not a proper purpose for this kind of application. A stay application is about maintaining the subject matter of the proceedings to allow an appeal to proceed. That is the purpose of the stay application. That has been stated in many cases.

PN72

This ancillary purpose, to allow my friend to go and get a section 127 order which was his last suggestion, first of all just dealing with the merits of that argument. If the house of cards tumbles as a result of this appeal, that there is no eligibility of the CFMEU to cover these employees, then the jurisdictional prerequisites for a section 127 order can not be met, because there can be no industrial dispute that the CFMEU is involved in under section 127(1)(a), there is no negotiation or proposed negotiation or agreement under division 2 or part VIB because such an agreement, on my friend's reasoning, can not be reached. Section 127(1)(c):

PN73

Work that is regulated by an award or a certified agreement.

PN74

There can be no award or a certified agreement involved in the CFMEU. And so the eligibility house of cards having fallen, the section 127 application does not become available to the company in these circumstances. That is the first point. The next point on the balance of convenience is, and we respectfully adopt the reasoning inherent in the questions put by your Honour, that making a stay order here has no impact whatsoever on the protective action that is proposed this week. The status quo prior to the decision made by Senior Deputy President Drake is that the union claimed it had eligibility, and the company had lately formed the view that the CFMEU did not have eligibility.

PN75

And I say lately, your Honour, because there are two certified agreements in this Commission where the CFMEU is a party to an agreement in the coal industry with this employ. Both reached in 2001, they are exhibited in the proceedings before Senior Deputy President Drake as Grey 22 and Grey 23. And as my friend has suggested, there were stat decs sworn, indicating to the Commission that the CFMEU has eligibility and that an appropriate award for the no disadvantage test was the Coal Mining Industry Production Engineering Award. That is the status quo. There has been no moves by this company to have those agreements terminated, even though they are outside their nominal expiry date.

PN76

There have been no moves since 8 November when the bargaining period was instituted, or initiated, no moves by the company to seek to have declarations in the Federal Court that the bargaining period can not be commenced. That was available, not taken. The notice of industrial action under that bargaining period proceeds on the basis that the bargaining period is regular, just as the agreements that have been certified by the Commission should also be considered to have be made in a regular fashion. There has been this argument about the dispute finding. My friend raises an argument about whether the words "in connection with" should be read as "with connection with". That is his sole argument on his arguable case. He has been unsuccessful in that argument, and that argument is being considered very carefully by Senior Deputy President Drake.

PN77

So moving from the balance of convenience, and I mention that last point under the balance of convenience, your Honour, because it seems that the convenience as so far as this employer is concerned, is that it simply disagrees with Senior Deputy President Drake's decision. And we would like the Commission to stay that decision so that there is no record of it anywhere. That won't happen. There will still be a record of Senior Deputy President's decision and the reasoning in it, in our view, is sound. And we will go to that because we also contest the arguable case point. My friend makes some broad assertions about what was decided by Senior Deputy President Drake.

PN78

We would rather take you to the decision, your Honour. And we start with the decision, the Broken Hill decision, the re Hibble decision in paragraph four in my friend's outline. And my friend, with the greatest of respect for him, extrapolates from the reasoning set out in that paragraph, and we say that such an extrapolation is not warranted in the proceedings, it won't be warranted in the appeal, certainly not warranted at this stage of the proceedings. It may be useful, your Honour, to have both paragraph four of the outline of submissions of my friend and paragraph 336 of her Honour's decision open. And I say that because the actual rule that we are dealing with from the CFMEU rules is set out by her Honour at paragraph 336. The rule is:

PN79

That without limiting the generality of the foregoing, and without being limited thereby, ...(reads)... employees in the industries or not as having been appointed officers and admitted as members.

PN80

In re Hibble ex parte Broken Hill Pty Company Ltd, 29 CLR 290, the extract at paragraph four, the court says this:

PN81

That the Broken Hill Pty Company Ltd carries on the business of iron and steel manufacturers and in that business...(reads)... proper interpretation of their rules is, we think, the trade or business of the employer.

PN82

It does not say, I interpose your Honour, it does not say that the employer must be engaged in the coal and shale industries. It is to be read that, on a proper interpretation of their rules, whether the employer or employee is engaged in a business related to the coal mining industry that is in or in connection with the trade or business of the coal mining or the coal industry - coal or shale industry is the full phrase. And the last sentence in the extract provided to you, the question whether a particular trade or business is or is not part of the coal and shale industry must in all cases be a question of fact.

PN83

Now, we want to take you to the decision of Senior Deputy President Drake and direct you to where she deals with the evidence associated with this employer, and that is at paragraphs 33 to 60 where the evidence of the employer is considered. The evidence of the witness, a Mr Wiley, who gives evidence setting out what the employer does and how it does it and the tables that are caused by paragraph 34 of the decision. Set out in that table are references to a depot run by the employer on a coal mine site at Collie in Western Australia. The Walkworth Mine is dealt with, Depot and Emulsion Manufacturing Plant at Walkworth, which is free standing but is at the coal mine site.

PN84

Queensland Pete Downs, including the depot at Gregory, Gregory Mines, the coal mine sites. You will see in relation to Pete Downs and Gregory that shot firing is performed by the three employees at the Gregory mine and by five of the 12 permanent employees and the casual employees based at the Pete Downs' depot and other coal mines in the area. You will see later in the decision, your Honour, that shot firing is a call competency in the coal mining industry. It is about blowing up dirt so it can be removed so the coal can be mined, your Honour. I am not sure how familiar you are with this particular industry. Over the page, Blackwater, another depot on a coal mining site and the materials are loaded into explosive holes, so the holes are drilled and the material is not just dumped at the mine site and put in a store house.

PN85

Expertise of these workers is used to load it, in this particular circumstances, of the coal mining process. And that is made clear in her Honour's decision. And here the materials are loaded into these explosive holes. We have Moura mentioned on the last page of the list of sites. Again, it is the Moura, one of four employees serving at the Moura coal mine. There is a summary on the next page that tells how many employees are working in different areas, making it quite clear that employees perform shot firing on coal mining leases. Now, her Honour considers this evidence and the evidence of Mr Wiley continues, is considered in the decision up until paragraph 60. There is then further evidence from employees, one a lodge official, a local delegate and that is dealt with, your Honour, paragraphs 139 and following I understand.

PN86

I should say that paragraph 139 and following the evidence of Mr Pearce, a local union official, an organiser as opposed to a delegate, is considered by her Honour. Her Honour mentions site visits where she has seen this work performed. Go on to paragraph 153, there is an exchange from the evidence with Mr Pearce, the delegate, where Mr Pearce says that:

PN87

In my experience, they take it down, they become a part of the integral part of the mining process by taking it on to the shot, loading it and in some cases, assisting to fire.

PN88

And Mr Pearce is asked that:

PN89

If they didn't do the shot firing, or assist in the firing, would you still regard the down the hole delivery as part of the process of mining?---Yes.

PN90

And so her Honour has accepted evidence, has considered the facts and at paragraph 202 a Mr Logivik gave evidence. Mr Logivik was a delegate at one of the mine sites. Gives evidence of the history of this work and how it has been performed by other companies who have been respondent to the coal mining industry award. It talks of Orica and ICI. He also talks of what the actual process is involved, or his evidence is accepted by her Honour, at paragraph 206 describing the process that is followed by these workers. Mr Logivik suggested that Dyno Nobel is a party to a certified agreement with the CFMEU in relation to its work at Gregory mine. One of the two agreements that have been referred to that because Grey 22 and Grey 23 in the proceedings.

PN91

The site inspections referred to at paragraph 213, your Honour, where her Honour Senior Deputy President Drake went and saw this work being performed, was on site when Dyno Nobel personnel were loading the shot, putting explosives in and backfilling the hole at the drill site, an area that they had flagged out. The cross examination of Mr Logivik is set out, or the finding's from it are set out at paragraphs 217 to 220. So in terms of the requirement of the court that the question of whether a particular trade or business, and we are dealing here with the business, is or is not part of the coal and shale industry must in all cases be a question of fact. Many facts were considered by her Honour. She heard the arguments of my learned friend and rejected.

PN92

THE SENIOR DEPUTY PRESIDENT: But still, you can't say, I mean, obviously it is a question of fact that you have to ask the right question.

PN93

MR SLEVIN: That is right.

PN94

THE SENIOR DEPUTY PRESIDENT: The issue is whether her Honour asked the right question, even without the facts. You can't just say well, it is a question of fact, you have got lots of facts.

PN95

MR SLEVIN: You are quite right, your Honour. And the findings that she made as a result of those facts and applying the law, that reasoning commences at paragraph 335. And indeed, both Poon Bros that my friend refers to was considered by her Honour, as was the case, the Hibble case. It goes to paragraph 335, your Honour, and these are the findings in relation to Dyno Nobel and those findings go from 335 to 351. You will see first of all, 336, the rule that her Honour was considering is set out at 336. I have taken you there. The various authorities are considered by her Honour and her Honour has asked herself more than simply the question that is posed at question 339 and in our submission. My friend - or 359 rather - my friend has been unfair to her Honour in suggesting that that is the exercise that she engaged upon and we discourage your Honour from taking that paragraph in isolation. It should be read with the rest of the reasoning in that section of the judgement.

PN96

From paragraph 351 to 371, I think I may have given you wrong paragraph references a moment ago, your Honour. It is 351 to 371 that Dyno Nobel is considered in the reasoning of her Honour and her Honour does a thorough job of considering the work that is being done, what context it is being done within and considers the arguments of my friend and rejects them. The appeal is about the company not accepting that their argument was rejected by her Honour. And I might stay with that for a moment. My friend spoke about the question of the breadth of the finding. The notice of appeal doesn't appeal the decision on that basis or the finding of that basis. There is no mention of- - -

PN97

THE SENIOR DEPUTY PRESIDENT: You are absolutely sure about that, because my reading is that it is.

PN98

MR SLEVIN: The specific grounds of the appeal- - -

PN99

MR HERBERT: It does, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: I actually, I mean- - -

PN101

MR SLEVIN: We understand it, your Honour. We say that the grounds of appeal to be relied upon are that the Commission erred in law in its interpretation of the CFMEU's eligibility rule as it relates to Dyno Nobel, its business and its employees. And on the basis, and this is 3.1 (a) and (b) and particulars are provided after that, but that on the basis of the errors set out in (a), in other words an error as to interpretation of the eligibility rule so that the appeal is against of the eligibility rule, not the scope of the finding made. And I will go the practical impact of the scope in a moment, your Honour. But we understand the appeal is to simply be about the interpretation of the eligibility.

PN102

THE SENIOR DEPUTY PRESIDENT: What about 3.1(b)?

PN103

MR SLEVIN: That:

PN104

On the basis of the error, the Commission acted without jurisdiction or in excess of its jurisdiction in finding- - -

PN105

THE SENIOR DEPUTY PRESIDENT: No, sorry. Notice of appeal, see 13 January, there is specific grounds of appeal. Okay, specific grounds of appeal are 3.1(a) and 3.1- I suppose I am referring to - okay, particulars of ground 3.1(b). The three paragraphs at 3.5:

PN106

Further or in... (reads)... terms if the finding of the dispute was made in terms that were far wider than sought by the CFMEU.

PN107

Et cetera.

PN108

MR SLEVIN: We have read that in particular as being in support of the grounds. We are dealing with an appeal on interpretation, not the form of the dispute finding. I will go to the dispute finding in any event, because we challenge what my friend says is the effect of what is said. We say that that argument is specious to suggest that in the circumstances of this case, that this dispute finding suggests that the CFMEU has coverage eligibility to cover all Dyno Nobel employees. That argument is just specious. It is clear on the face of the decision, if not on the finding itself, that her Honour was dealing with persons involved in coal mining, in the coal industry. The evidence makes it clear, the finding makes it clear, the finding within the decision makes it clear and it should be read in context.

PN109

It is just a straw man argument, that is our point here, your Honour. It is to say look, the Senior Deputy President has done all of this. We accept that she has not done all of that and it is a matter that in terms of the dispute finding, no rights are affected at this time. I want to go to that point and I will go to that now. All that is in place is a dispute finding. There is no order of the Commission, there is no award of the Commission. And we refer to two decisions of the Commission on that point of stay proceedings against dispute findings, and I have copies for you, your Honour. The first in time is print L0559, which is a decision of Vice President Moore as he then was on 16 December 1993, the Australian Education Union and the Crown in its right, in right of the state of Victoria.

PN110

In that decision, in the last two paragraphs, the balance of convenience is dealt with, much of what was put on the balance of convenience concerning the impact of any award made in settlement of a dispute might have on present arrangements, particularly having regard to the method by which funding will be made available in 1994 to establish facts to which the dispute relates. However, this consideration is, in my view, irrelevant to whether a stay should issue at this stage. It is a submission that pre-supposes an award will be made with a particular effect. I do not consider I should act on float pre-supposition. If an award is made with that effect, then rights will arise under section 45 including the right to seek to have the operation of that award stay.

PN111

The other considerations raised concern the inconvenience associated with participating in a hearing before the issue of jurisdiction is dealt with by a full bench, particularly having regard to the time of the year. However, that is not, in my view, a ground of sufficient moment to make in effect an order which would prevent a member of this Commission dealing with the dispute in circumstances where one party to the dispute, AEU is urging that it be dealt with. A member of the Commission had determined there is an industrial dispute between the relevant parties and the challenge of jurisdiction that the appellants have outlined is not a compelling one. That reasoning is repeated by Vice President Ross in the second of those prints, your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: I mean it is a little bit of a different sort of situation, arguably, we are facing. I mean, we are not really worried so much. Or shall I try to put it this way, the applicant's not so much worried about the making of an award at this stage perhaps. There is no doubt that there is about, well, there has been a notification of industrial action and if it was true, I mean you may or may not want to concede this, but if it was true that the CFMEU was not eligible to enrol employees at Dyno Nobel, then it is pretty hard to see how the second you can take protection action because it couldn't get a certified agreement under LJ, because under LJ you have to be able to represent the interest of the employee, the industrial interest of the employees.

PN113

So I suppose the issue is more about, you know, the protective action in pursuit of - and this isn't some sort of theoretical, hypothetical possibility that might arise, this is actually something that has clearly been foreshadowed as happening urgently. So I mean, what do you say about that? So I am saying these cases are all interesting, but they don't really deal with the kind of situation we are dealing with.

PN114

MR SLEVIN: Well, I will go to the relevance of the case in a moment, but I should say straight out the CFMEU does not concede that there is a valid challenge to its eligibility on these sites. These workers are firing shots on coal mines and that is an integral part of the coal mining process. And if Dyno Nobel are engaging persons to do that work, then they are engaging persons or in connection, with the coal industry. So we make that point first of all. Secondly, so far as the industrial reaction, I simply repeat the submission I started with, which is that a stay of this decision will have absolutely no impact upon that. My friend is in the wrong place if he wants to argue that the industrial action is invalid and any finding of the Commission as currently constituted should not be clouded with any view or any impression that a decision or a stay order will have some impact on that activity. It is activity occurring under a different part of the Act and there are different remedies.

PN115

THE SENIOR DEPUTY PRESIDENT: Well, when you say different - yes, presumably one remedy, it is not necessarily the only remedy, but one possible remedy is a section 127 order and one ground for that - certainly the Commission wouldn't generally grant a 127 order if the action was protected. Whether the action is protected obviously, is affected by this issue of the eligibility rule and the argument is, as I understand it, that at the moment, the Commission has found that effectively, while it was in relation to whether an industrial dispute, it was very much premised on the interpretation of the construction of the eligibility rule.

PN116

The argument is suspending that decision, effectively leaves it - it doesn't determine that the CFMEU isn't eligible, but at least it leaves room for argument. Whereas, if the Commission, if I refused to stay that decision, really that argument is just simply gone. So when you say would have no impact, I suppose arguably that would be the impact.

PN117

MR SLEVIN: If your Honour issues a stay order and industrial action does commence, and my friend decides he will stand before the Commission and say, I now want a section 127 order against that action because it is not protected, my friend runs into the problem that there is no jurisdiction. If the CFMEU has no eligibility it can't be the party to a dispute, the certified agreement - if my friend wants to say to the Commission, you decide that the CFMEU has no eligibility over these workers, my friend would be asking the Commission to divest itself of any jurisdiction to make the section 127 order.

PN118

THE SENIOR DEPUTY PRESIDENT: Okay, but let us just say, just for purposes of - well, it is being the devil's advocate if you like, but even if it - I mean, I think that is perhaps arguable actually, that point, but leave that to one side, let us say you are right on that. What about a 166A certificate? The point is that there may be - well even if you leave aside action in the Commission, are you saying -there would obviously be some legal remedies available against unprotected industrial action. You are sort of saying, well, if it is unprotected, then there is nothing you can do about it.

PN119

MR SLEVIN: I am not saying there is nothing you can do about it. I am not here to advise my friend that there is nothing to do about it.

PN120

THE SENIOR DEPUTY PRESIDENT: No. I am trying to get to the point of what the impact would be of issuing a stay order.

PN121

MR SLEVIN: The impact we say, that there would be none. That is our point. We say that - and the status quo that my friend talks about is, he seems to suggest there is a status quo, that there is some acceptance by the union, that there is no eligibility, that is not the status quo. The status quo prior, the status quo was that the union sought a dispute finding with the employer. Quite clearly, the union's position is made clear in taking such action that. It believes it has eligibility, and it does so on the back of two certified agreements with this company, where officers of that company have signed statutory declarations filed in this Commission saying the same thing.

PN122

They have changed their mind, and they come here and they are looking for a stay. It is just a stay against a decision made under part 6 of the Act, which is going to have no bearing on bargaining under part 6B, no direct bearing at all. My friend may well use your decision to grant the stay, to argue, "Well, the balance may have been with them before because they had Senior Deputy President Drake's decision that said they did have eligibility, but we have now got an effectively interlocutory decision from a different member of the Commission, and it goes our way".

PN123

That is at best what my friend achieves and in so doing, to then be using that in that way in the Commission in other proceedings, it would just be disingenuous because we had simply say, well, we have got a fully considered decision from someone who has been to the site and seen the work. I have considered all the arguments and the evidence against an interlocutory type finding.

PN124

Anyway, I move onto the relevance of what other proceedings occur in the Commission. There is no application current for a roping in award, there may well be in line with the two decisions I have handed you, if there is a roping in decision. And we should also be mindful, and I refer here to Vice President's Ross decision when considering the balance of convenience, he referred to the short time before the appeal will be considered. That is the same here, I think 25 March it has been set down, so that is a factor in the balance of convenience, it is a short time. Not enough time to get an award that would actually impact on the rights of the company.

PN125

THE SENIOR DEPUTY PRESIDENT: But given the short time, why wouldn't the union wait before it seeks to take protective action?

PN126

MR SLEVIN: That is a question to be considered, your Honour, perhaps at
2 o'clock.

PN127

THE SENIOR DEPUTY PRESIDENT: Right, true.

PN128

THE SENIOR DEPUTY PRESIDENT: Because if my friend gets his stay here, then Commissioner Bacon cannot proceed at 2 o'clock because if we don't have a dispute finding then he has no jurisdiction effectively to conduct the conciliation conference that my friend has asked for. This is as they started, it is not circular it is all over the place, what is being asked of you in these proceedings, and we urge you just to stay away from it.

PN129

THE SENIOR DEPUTY PRESIDENT: But if the certified agreement is not valid, then - - -

PN130

MR SLEVIN: Well, they say it is not valid, we say it is. And we are proceeding on the basis - we are operating on the basis that things that have occurred in this Commission have occurred on a regular basis. It is my friend who is trying to tear down the house. We urge you that on the balance of convenience, you don't achieve anything under part 6B by making a stay, what you may well achieve is the conciliation conference at 2 o'clock falling away because there then is no dispute finding for the Commission to proceed or do anything at 2 o'clock. If it is on that basis, your Honour, I think I have covered all of the points.

PN131

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Herbert, what do you say?

PN132

MR HERBERT: Yes. Very briefly, your Honour. Your Honour, in relation to my learned friend's submission that the appeal is misconceived insofar as it refers to the ambit of the dispute finding being - or her Honour's determination that all employees of my client will be covered by the eligibility rule. Your Honour, the authority - we have only quoted an extract in the written submissions of Hibbles case, and as I say, Hibbles case, as I understand it, has been good law for about 85 years now. Your Honour, the words that have been left out of that quotation, unfortunately, are the words which make the difference of my friend's submission. Your Honour, could I read the passage very quickly so that your Honour can understand why my friend's submission is plain wrong. The words start - And these parts are in the second paragraph of the quoted part:

PN133

The Arbitration Act allows your organisation's employees according to their association with the trades or businesses of employers or according to the occupations or avocations of employees...(reads)... Such a business would, in point of fact, be part of the coal or shale industry and all persons employed in that business -

PN134

I emphasise the words:

PN135

All persons employed in that business are properly said to be employed in or in connection with that industry. ...(reads)... or after it has been transported by him into coke, is not engaged in the coal or shale industry and his employees are not employed in connection with that industry.

PN136

Your Honour, the relevant part of that sentence that I read there which is not unfortunately included in the passage that has been quoted is, that once an employer is determined to be engaged in an industry, all of their employees are taken to be engaged in that industry. And that is why such very great care needs to be taken in determining the proper characterisation of the business of the employer, so as to avoid coincidental or unintended inclusions of employees who have nothing to do with the industry, and particularly in this case where Dyno's business has been characterised by the Commission, and an award has been made by the Commission to which Dyno is the sole employer respondent, which is characterised as an Explosives Award, which is characterised by the Commission as being in the chemical industry.

PN137

Now, it is really very hard to understand how my friend could then say that you can pick and choose, you can have an employer rule, which applies only to particular employees by the activities of particular employees, the cases are against him.

PN138

In relation to the other matters, your Honour, in respect of the form of the notice of appeal, it is probably appropriate that my friend raises his understanding of the ambit of the appeal. Clause 3.5 of the notice of appeal is intended to provide particulars of the ground in clause 3.1(b), so as to expand in as much detail as we can exactly the issues that we wish to ventilate in the appeal, and the matters that we wish to argue in support of the grounds set out in clause 3.1. If my friend wants us to recast the notice of appeal to include paragraphs 3.2 to 3.5 actually in the grounds, we will do that, but we thought that we were being of assistance in setting out the narrower express grounds, and then providing particulars of what we meant to say. To make it absolutely clear, we propose to argue 3.4 and 3.5 as being matters which support the outcome and the ground that we raise in 3.1(b). I put that on the record now.

PN139

In relation to the question of my learned friend's submission, that section 127 can avail my client of nothing, even if your Honour were to make a stay order today, that is simply not right. Section 127(1) entitles my client to an order if it appears to the Commission that industrial action is happening, is threatened, impending or probable - well we have got a notice that it is going to start at 6 o'clock tomorrow morning. In relation to sub-paragraph (c):

PN140

Work that is regulated by an award or a certified agreement.

PN141

Now the Explosives Award applies to this work. Secondly, my learned friend I think in the course of his submission said that there are expired, but not terminated, certified agreements that apply to this work. So on both counts, the work is work in respect to which a 127 order can be made. The only inhibition, your Honour, is contained in 127(5A), namely that:

PN142

An order of that kind under sub-section (1) or (3A) does not apply to protected action.

PN143

It would be necessary for my client, if the industrial action were to go forward and we were to bring a 127 proceeding, to persuade a member of the Commission that the industrial action was not obviously protected, as I think is the terminology that is used in the Joy Mining decision from Munroe J. If the industrial action is not obviously protected industrial action, then a 127 order can be made. If this question of the determination of the entitlement of the CFMEU to represent some or all of my client's employees is stayed, then it remains open for my client to persuade another member of the Commission that the industrial action is not obviously protected and section 127 orders can be made.

PN144

I take my learned friend's reference to the fact that, to his assertion, that we are in the wrong place, is a reference to an assertion that we should be seeking some sort of injunction from the Federal Court. As your Honour pointed out, if we were to go to the Federal Court to seek an injunction in relation to these matters, one would think we would be comprehensively hosed out in the early stages, if I can use the vernacular, because an injunction from a court, of course, is always a discretionary remedy.

PN145

If there is a determination by a member of the Commission, which stands and is not currently appealed against, that the CFMEU has the requisite eligibility, as a matter of discretion, pending an appeal against that decision, one would have thought that the Federal Court would not embark upon a parallel inquiry as to whether that decision is right or wrong, in the full knowledge that a full bench of the Commission is about to embark on exactly the same inquiry in the appeal against Senior Deputy President Drake's decision. One would have thought an injunction from the Federal Court, we can't of course completely cancel out that possibility but from the present point of view, whilst a determination of the kind made by Senior Deputy President Drake stands in the records of the Commission, it is unlikely that the Federal Court would pit itself against the Commission and embark on a parallel proceeding of that kind.

PN146

We haven't come here foolishly, or in an ill-considered way, or a way to simply get a piece of paper that we can then wave around at some conciliation conference as a strike back brownie point. This is an application which has real substance, and the consequences of the suspension of the dispute finding will restore a real status quo as evidenced by the fact that the CFMEU itself did not embark upon this campaign until six days after this decision was handed down, itself was relying upon a determination of the Commission before it acted.

PN147

One would have thought that if they themselves were not minded to suspend the action, if this Order is suspended by a stay proceeding, then perhaps they may be persuaded to do so in some other proceedings, but in the event that they aren't able to be persuaded despite any decision of your Honour, it certainly opens the door for us to take other proceedings in order to compel them to desist from the industrial action, whilst we wait for the umpire to hand down a final decision as opposed to the temporary decision which is presently in place. For those reasons, in my submission, the stay should be granted with immediate effect.

PN148

THE SENIOR DEPUTY PRESIDENT: Thank you. Just on a practical issue, presumably you would like to get a decision before - you are an hour behind in Queensland, so presumably it is a quarter to one there now?

PN149

MR HERBERT: It is, your Honour.

PN150

THE SENIOR DEPUTY PRESIDENT: So the hearing before Commissioner Bacon is on at 2 o'clock?

PN151

MR HERBERT: 3 o'clock your time.

PN152

THE SENIOR DEPUTY PRESIDENT: 3 o'clock our time, so I have got an hour and a quarter. I am just wondering whether - I actually need to think a bit about this, but obviously I don't have a lot of time to think about it. I think it would be desirable presumably to give you some indication before then. I am wondering whether it would be practical to be able - do we have contacts that could actually - if I didn't have a decision for, let's say, half an hour, whether I could actually fax - we adjourn now and I fax you the decision in half an hour. Is that going to work? Rather than me keeping you hanging around basically while I scratch my head.

PN153

MR HERBERT: Yes your Honour. I can give your Honour a fax number at this end of my instructing solicitors.

PN154

THE SENIOR DEPUTY PRESIDENT: You are in the Commission at the moment, would it be easier to actually fax it to you at the Commission?

PN155

MR HERBERT: No, your Honour. My instructing solicitors' offices are one floor below the Commission.

PN156

THE SENIOR DEPUTY PRESIDENT: What I might do is, I will leave you to sort that out with my associate. So what I will do is, I will adjourn now to reserve my decision, but the idea would be I will try to get you something before 3 o'clock typed, my time anyway.

PN157

MR HERBERT: We are very grateful, thank you your Honour.

<ADJOURNED ACCORDINGLY [1.45PM]