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Australian Industrial Relations Commission Transcripts |
1800
534 258
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 10332
SENIOR DEPUTY PRESIDENT ACTON
C2005/1763
s.127(2) - appln to stop or prevent industrial action
Murray Goulburn Co-Operative Company Limited
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia Construction, Forestry, Mining and Energy Union
(C2005/1763)
Murray Goulburn Co-Operative Company Limited, Reliability Agreement 2002
MELBOURNE
9.22AM, THURSDAY, 03 FEBRUARY 2005
Continued from 2/2/2005
THE SENIOR DEPUTY PRESIDENT: Mr Bird? You remain sworn Mr Bird.
<IAN CHARLES BIRD, ON FORMER OATH [9.22AM]
<EXAMINATION-IN-CHIEF BY MR SHARARD, CONTINUING
PN140
MR T SHARARD: Your Honour, I had indicated yesterday that I had finished with Mr Bird at the moment, however there was a matter that Mr Addison raised in his opening remarks, and I would just - if your Honour wouldn't object, if I could just correct a couple of questions.
PN141
THE SENIOR DEPUTY PRESIDENT: Yes.
PN142
MR SHARARD: Thank you.
PN143
Mr Bird, Mr Addison in his opening remarks yesterday referred to a lock out at Koroit on Tuesday. Are you aware of the situation he was referring to?---Yes.
PN144
Can you briefly describe your understanding of what occurred there?---We received a phone call from Koroit, the Koroit manager at approximately midday on Tuesday. He advised that he had been told by the workers that - of their intention to leave the site at 1 o'clock. And he told me that he had told the workers that - that they could leave - they should leave prior to then, if they weren't going to work the whole shift they can just go home.
PN145
And when did you become aware of that situation and what occurred?---I ascertained what had happened at other branches in respect of a similar thing, advising that that sort of action ought not take place without the concurrence of management in Brunswick.
PN146
Have you taken any formal steps to ensure that there isn't a recurrence of such a situation again - - -?---I have. Following legal advice about the procedure, I made the company's position clear to branch management, by sending an email to managers.
PN147
I would just like to hand you a document, if you wouldn't mind. Is that a copy of the email that you sent out yesterday?---Yes it is
PN148
That gives effect to your putting in place procedures, is that correct?---Yes.
PN149
So what is the procedure then?---A manager, if considering locking workers out in the face of industrial action, can only do so after getting the authority of myself at Brunswick. The procedure would be that if that is sought, if that authority is sought by a manager or managers, that the prescribed procedure for the appropriate notices would be - that procedure would be given to the manager to follow.
**** IAN CHARLES BIRD XN MR SHARARD
That's all, thank you.
PN150
THE SENIOR DEPUTY PRESIDENT: Do you wish me to mark this?
MR SHARARD: Sorry, yes.
EXHIBIT #S3 EMAIL TO BRANCH MANAGERS FROM MR BIRD, REGARDING INDUSTRIAL ACTION DATED 2 FEBRUARY 2005.
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
<CROSS-EXAMINATION BY MR ADDISON [9.26AM]
PN153
MR M ADDISON: Ian, you have been the company secretary for Murray Goulburn for a significant period of time?---Yes, coming up seven years.
PN154
Is that all?---Yes.
PN155
You surprise me; what were you before that?---The Manager, Corporate Services.
PN156
That's right, and you have been with the company for 12, 13 years at least?
---Coming up for 15 years.
PN157
Yes, yes. Now, because of that you have a familiarisation with the operations of the organisation and you clearly know what they do on the ground in the factories, don't you?---I have got a broad understanding.
PN158
Yes, now in terms of the evidence you gave yesterday, you gave evidence yesterday with regard to some issues that occurred at Leongatha?---Yes.
PN159
You gave evidence that there was some - and I don't want to put words in your mouth, so if I have misinterpreted what you have said yesterday, please correct me - as I understood what you said yesterday in your evidence, you said that there was some doubt as to the quality of the milk in the UHT?---Yes.
PN160
And that there'd been some difficulties with regard to the UHT on Monday?
---What I said was to the effect that because of the impairment to services during the production of approximately half a million
litres of UHT milk that the condition of that milk may be compromised and that would be revealed once the clearance testing was completed.
**** IAN CHARLES BIRD XXN MR ADDISON
Those difficulties, can you tell the Commission what they were?---I understand that they related to the interruption of services, including refrigeration.
PN161
Well, they related to a drop in pressure in compressed air, didn't it?---I don't have that information. I have got a - a broad - a description from the branch that it was an interruption to services that posed a threat to that product.
PN162
Yes, the compressed air is a service, isn't it?---I believe so, yes.
PN163
In fact you can't put a Tetra Pak together without compressed air, can you?---I suspect not.
PN164
There was a drop in pressure in compressed air which was then - the connection was speeded off, are you aware of that level of detail?---No I am not.
PN165
Have you made any enquiries with regard to the quality of the UHT milk?---Not in the last day or so.
PN166
So if I was to tell you that my instructions this morning were that the UHT milk is fine and there is no problem with that, you wouldn't be able to comment one way or another would you?---Not without further information.
PN167
With regard to the electrical problem that you referred to at Leongatha?---Yes.
PN168
That electrical problem occurred on Monday morning?---I believe so, or Sunday night, something like that.
PN169
It was a carry on of a problem from last Thursday?---I am unaware of that.
PN170
You're unaware of that. You are aware, are you not, that the parts had to be ordered from Geelong and the parts were delivered on Monday?---I am not aware of that.
PN171
Okay. You're aware, are you not, that the parts were installed in normal working hours and the Branch Manager at Leongatha in fact thanked and congratulated the electrical team, before the end of normal business on Monday, for their efforts in repair of the plant?---My information is that the staff working their conventional, normal hours, worked very hard on the problem and that the repair to that electrical equipment couldn't be completed by the end of the ordinary hours.
**** IAN CHARLES BIRD XXN MR ADDISON
Well my instructions are very, very different to that. Are you aware that the Branch Manager congratulated the electrical team on Monday afternoon?---I am not aware of that.
PN172
You're not aware of that, okay. Now, in terms of the number of matters that were raised by my friend yesterday you said there'd been five meetings with the unions with regard to the negotiation of the new enterprise agreement?---Yes.
PN173
Those five meetings had been, as I understand your evidence, 8 December, 16 December, 13 January, 24 January and 31 January?---Yes.
PN174
You then gave evidence that following - once again if I am wrong here, please correct me - as I understood the evidence you gave yesterday, you also said that following the meeting on the 31st, you had had a discussion with a shop steward, with regard to when the next meeting was to occur. Is that right?---I requested that he check with the guys to get a date that we can next meet.
PN175
Yes, this was on 31 January?---Yes.
PN176
My instructions are - confirm this would you, or deny it - but my instructions are that the meeting on the 31st, didn't finish until about 6 pm?---The meeting on the 31st finished at approximately 4 pm.
PN177
4 pm? Okay. When did you ask this shop steward - well sorry, before I go there - as I understood your evidence yesterday, you said you would asked the shop steward following that meeting and the response had been silence, can you recall saying that?---I do recall saying that. I also recall saying that having asked the shop steward for a date, he said, "We will see".
PN178
Yes, "We will get back to you", didn't he? He said something along those lines?
---Something like, "We will see".
PN179
"We will see" or "We will get back to you" or something like that, yes?---But he didn't commit to a date.
PN180
Okay, and this was what, 4 - 4.30 on the Monday afternoon on the 31st?---It was - it would have been pretty close to 4 o'clock. Everyone had left the room and the gentleman had returned to get some stuff that he had left on the table and I said, "You better check with the guys, and let's see what we can get the next date organised".
**** IAN CHARLES BIRD XXN MR ADDISON
So, the shop steward was on his own when you put this to him?---Yes he was.
PN181
So it would be logical for him to go and talk to the rest and find out what suited, wouldn't it?---That would be logical.
PN182
The application for the proceedings that are currently before the Commission were faxed to the state branch of the AMWU at 8.39 the following morning. That's correct, isn't it?---I don't know what time it was faxed. The lawyers - lawyers did that - - -
PN183
All right, I will then give you this copy of the application and if I can just get you to have a look at the stamp at the top. My apologies, it was faxed to the Bendigo office of the AMWU at that time. Can I ask you to have a look at the header - yes, the printed header at the top. If you have a look at that, you will see there it's 1 February 2005, and the time is 8.39. That's correct isn't it?---That's what it says.
PN184
Could I have that back sorry. Now I put it to you, given the fact that you asked a shop steward, in isolation following the meeting which concluded on 31 January at about 4.10, when the next meeting was going to be, and he or she had said to you, "Well I will get back to you," or "I will let you know", whatever it was there, was be real opportunity for that shop steward to come back to you in any event, was there?---There was a real opportunity. Firstly, I was asking him as the convenor of the shop steward's committee - asking him that question in that - in his role as the convenor. And my view is that he does have an opportunity to come back and say, "Yes, here's our date". Or - or "Here's no date", or whatever the answer may
PN185
Can I ask you when you gave Corrs Chambers and Westgarth instructions with regard to filing this application?
PN186
MR SHARARD: Your Honour, I am not sure that that's an extremely appropriate question.
PN187
MR ADDISON: I will withdraw that, it's legally privileged.
PN188
THE SENIOR DEPUTY PRESIDENT: Mr Addison, I don't know, the Commission's copy of the application, at least the facsimile transmission at the top - and I am not sure how accurate these ever are - says 6.04 pm. It in fact says 1804 on the 31st of the 1st.
**** IAN CHARLES BIRD XXN MR ADDISON
MR ADDISON: I put it to you Ian, that you had this application ready to go whilst you were meeting with the AMWU on 31st of the 1st, on Monday - sorry not the AMWU but the three unions, CFMEU, the AMWU and the ETU - when you were meeting with those organisations, this application was ready to go? It was your plan to do this in any event?---It was not my plan to do this in any event.
PN189
When I say you, I don't mean you as an individual, I mean the generic you?---I understand - - -
PN190
As a representative of the company?---Mm.
PN191
And it was the company's intention to file this application in any event?---That is - it was not the company's intention to file this application in any event.
PN192
Can I ask when the decision was made to file the application?---It would have been on the evening of - it would have been on Monday evening. The exact time, I don't know, it was in the - it was the early part of Monday evening, the decision was made.
PN193
Okay, so I will take you through the sequence of events as I understand them. On Monday you met with your unions? As I also understand it from the evidence yesterday, and you may confirm this, there'd been Commission proceedings prior to the meeting on Monday?---Yes.
PN194
There'd been some direction from the Commission for a meeting to occur?
---Yes.
PN195
On Monday afternoon you met with the unions?---Commencing from Monday morning we met with the unions, yes.
PN196
A bit after four when that ended?---Yes.
PN197
You then approached the shop steward - one presumes - after people had sort of filtered off because I think your evidence is the shop
steward was on his own?
---Yes.
PN198
So that would have been what, quarter past four or something like that?---Around 4 o'clock. The exact time I don't recall.
PN199
That's fair enough. But following the meeting?--- You asked the shop steward when the next meeting was going to be, the shop steward said, "I will get back to you", or words to that effect?---"We will see", I think
**** IAN CHARLES BIRD XXN MR ADDISON
Yes, and then how long after that did you make the decision to ring Corrs and say, "I want you to file the application"?---It was the early part of Monday evening, I can't recall the exact time, but it was the early part of Monday evening.
PN200
How much time had elapsed since you spoke to the convenor, between speaking to the convenor and speaking to Corrs?---I would estimate that it would be a number of hours, would be my estimation between the time of talking to, or requesting the date, and the time of giving the instruction to Corrs to lodge the application.
PN201
I would like to show you this document. This is a document that was faxed to the CEPU. I only have the one that was faxed to the
Bendigo office of the AMWU, but can I ask you to have a look at the same print at the top of the CEPUs letter and ask you to confirm
that that was sent to the CEPU on the 31st at 6.44?
---31 January 1844.
PN202
Yes, which 18 is six, isn't it?---Yes, I believe so.
PN203
So quarter to seven it was filed to - or it was sent to the CEPU?---Yes.
PN204
That wouldn't be several hours from when you spoke to the shop steward would it? In fact it would be two and a bit hours? Two and
three quarter hours?
---Several hours.
PN205
Yes, well not several hours?---Several hours, between 4 o'clock and 1844.
PN206
Okay, so we know now that you gave instructions - sorry, you asked Corrs to file the application between 4 pm and 6.44 pm, don't we?
PN207
MR SHARARD: Your Honour, I mean I don't want to be technical but we are straying into instructions to lawyers and so forth. I don't really think it's necessary to go there. I think we have got the major details and I really don't think it's appropriate to be asking Mr Bird what he did or didn't say to his legal advisors.
PN208
MR ADDISON: I disagree with my friend entirely, your Honour. Your Honour, one of the jurisdictional factors that the Commission needs to take into account, according to Vice Presidents Ross and Patricks, is the conduct of the parties. This clearly squarely falls into the conduct of the parties, I am not asking about his instructions, I have withdrawn that question. I asked that question, my friend objected, I withdrew it immediately. I am not asking about instructions, I am asking about this witness's conduct and what this witness did on a particular evening. I think the questions are legitimate.
**** IAN CHARLES BIRD XXN MR ADDISON
THE SENIOR DEPUTY PRESIDENT: Yes. Is there something else you want to say Mr Sharard?
PN209
MR SHARARD: Look, your Honour, I do think it is inappropriate for Mr Addison to be asking Mr Bird what he said to his lawyers, and I think it's unnecessary given the evidence that he's presented about dates, faxes and so forth, that were sent.
PN210
THE SENIOR DEPUTY PRESIDENT: Mr Addison if I understand the direction in which you're going, it's probably unnecessary to go to what he said to his lawyers, it's a matter of when the company made decisions - - -
PN211
MR ADDISON: Exactly. Exactly yes - - -
PN212
THE SENIOR DEPUTY PRESIDENT: - - - so can you couch it in those terms?
PN213
MR ADDISON: That's the question I asked, I think your Honour, if I mis-asked it, well I will ask it again.
PN214
THE SENIOR DEPUTY PRESIDENT: Yes.
PN215
MR ADDISON: At some point between 4 pm and quarter to 7 pm on Monday 31 January, Monday of this week, you as a representative of the company, or an appropriate officer of the company, made a decision to file for an application for a section 127. All I am simply asking you is, when was that decision made?---I made that decision - as I say - early evening, and it would have been - I don't recall the time exactly, and it would have been at a time at or near the time printed on this fax, 1844.
PN216
You would asked the shop steward at 4 o'clock, when the next meeting was on. Did you - when you made that decision, let's say for
the sake of the argument 6.30. Did you ring the shop steward and say, "We plan to file a 127 application"?
---No.
PN217
I put it to you that this steward had no opportunity of coming back to you, given the fact that you would made that decision and filed the application, what, an hour and a half, two hours - two and a half hours after you would asked the question. That's true isn't it?---The - the convenor of the shop stewards' committee had the opportunity to come back to me and say whether he had a date or not had a date, whatever his answer would have been. He had that opportunity, yes.
**** IAN CHARLES BIRD XXN MR ADDISON
Can I show you A2, or could I ask you to be shown A2. I only have one copy. That was served on the company on 21 January 2005 or thereabouts, that's correct isn't it?---This notice I believe was served on the company on the 20th, and a notice was served - the same notice was served on the company the following day.
PN218
Okay, so 21 January would have been when you got this letter, that's the date on it?---This letter I got on the 21st
PN219
Yes?---I got an identical one on the 20th.
PN220
Yes, and you got similar letters from the CEPU and the CFMEU?---Yes.
PN221
In terms of the notice, you gave evidence yesterday, my friend asked you what you made of the notice, and you said that it was clear to you that there'd been a ban on the working of overtime, that's clear is it not?---Yes.
PN222
You also said that there would be a ban on employees engaging in call back activity?---Yes.
PN223
And that's clear?---Yes.
PN224
You said there would also be rolling stoppages, which you understood to be stoppages of work for indeterminate periods of time in or more sections from time to time?---And in one or more factories.
PN225
Yes?---Yes.
PN226
And that was clear to you too?---Yes.
PN227
Now with regard to your other evidence you gave yesterday, you gave evidence with regard to the capacity of the plants, particularly Leongatha?---Yes.
PN228
You also said that Murray Goulburn constituted 37 per cent of the bulk milk market in Victoria?---No I believe I said that Murray Goulburn processes approximately 37 per cent of Australia's milk.
PN229
Australia's milk, okay. And can you tell me how much Bonlac processes?
---No.
PN230
You don't know?---Not exactly - I - and I would rather not guess. It's less than that.
**** IAN CHARLES BIRD XXN MR ADDISON
And Nestlé also process some milk?---Yes, they do.
PN231
As do Pauls?---Yes they do.
PN232
As do Parmalat?---Which I think is the same as Pauls.
PN233
They're different trading names, but possibly could be the same company?
---They process milk, yes.
PN234
There are a number of companies that process milk?---Yes, they do.
PN235
You were around about ten years ago when all of the dairy companies engaged in industrial action, weren't you?---I was around ten years ago, I don't know the industrial action you're referring to.
PN236
I am absolutely positive you were around because I was involved in it and so were you; but you would recall that in previous disputes, if I can put it that way, that milk has been transported interstate when factories have had difficulties, that's true isn't it?---I would have to assume - I can't answer whether that's true or not, I would have to assume in order to answer that question.
PN237
You don't recall tankers being loaded up and sent to South Australia for processing?---Milk is transported all over the country. That is true, in the context of your question about industrial disputation, if what you're asking is in a dispute which I don't recall, was milk transported as part of that dispute. I don't know.
PN238
Let me reframe my question. Forget the industrial dispute part?---Okay.
PN239
You recall many occasions when milk has been transported interstate for production, don't you?---That happens from time to time, yes.
PN240
Yes. And indeed, can I take you to Leongatha for instance?---Mm.
PN241
Leongatha has a capacity - storage capacity - as I understand it, of about
3.6 million litres?---A storage capacity?
PN242
Yes?---I don't believe that's correct.
PN243
Sorry, 2 million litres?---The exact storage capacity I don't have.
**** IAN CHARLES BIRD XXN MR ADDISON
I will put it to you a different way then. Milk is transferred between the Gippsland facilities, which is Maffra and Leongatha,
on a regular basis?
---Transported between those two branches?
PN244
Yes?---Yes.
PN245
Yes. Depending on the products you want to make, up to a million litres a day could be transported between the two branches?---That's possible, yes.
PN246
And that if Leongatha, for instance, which is the example you used yesterday, was at maximum capacity, then milk could be transported to Maffra. That's true isn't it?---It could be, yes.
PN247
Now I put it to you that the storage capacity at Maffra is 2.8 million litres?---I don't have that figure.
PN248
On 28th January, the storage in Maffra was 700,000 litres of milk in storage tanks, which is equal to 25 per cent of its capacity. You wouldn't know that either, would you?---I don't have that figure.
PN249
Do you know what storage is in Maffra now?---Not this morning, I don't know.
PN250
If I told you it was 120,000 litres, you wouldn't be in a position to deny that either would you?---I couldn't comment on it. I don't have the numbers.
PN251
You haven't sought this morning, to determine what the state of the storages are?
---No I haven't.
PN252
No? Would that not be normal, given the fact that you're coming to the Commission to give evidence, you gave evidence yesterday based on the capacity of the plants, based on problems that you said were occurring with the plants, you knew you were going to be cross-examined with regard to those matters today. Can I ask you why you didn't bother checking?---That's an operational issue, and I leave that to the operational people.
PN253
Well how were you able to give evidence yesterday then?---On advice from the branch managers and the operational people, in preparation for yesterday.
PN254
Okay, so you prepared for yesterday for your evidence-in-chief?---Yes.
**** IAN CHARLES BIRD XXN MR ADDISON
But you haven't prepared for this morning?---To the extent that you're saying did I check what was - what the carryover was this morning, I did not check this morning.
PN255
Can I ask you what was in the tanks at Maffra yesterday?---I don't know.
PN256
You don't know?---No.
PN257
Didn't you just give evidence that you got advice from the branch managers and the operations people when you prepared for yesterday?---Yes I did.
PN258
There was 400,000 litres in the tank at Maffra yesterday, weren't there?---The advice I received from branch managers was that in the face of the current circumstances, that the carryover that the company was experiencing at its branches around the place, was higher than normal. And - - -
PN259
But I put - - -?---and that - sorry.
PN260
No, go on please, go on?---and that in - in answering the question put to me that where industrial action persisted, the likely result would be that that carryover would increase and create an operational impairment for us.
PN261
But you agree with me that that's disingenuous, unless you look at the full set of circumstances, and the full system. That's true isn't it?---I don't agree with that.
PN262
Well you see you gave evidence yesterday that Leongatha has a difficulty?---Mm.
PN263
It has a limited storage capacity and that it has a carryover issue?---Mm.
PN264
You didn't tell the Commission yesterday that Maffra had 400,000 litres in a tank, which is equivalent to 15 per cent of its total storage. And that up to a million litres a day can be transferred from Leongatha to Maffra?---I didn't say that yesterday, that's correct.
PN265
If a million litres were transferred say last night, from Leongatha to Maffra, which is - you have already given evidence it happens all the time - that would have meant that the Maffra storage would go from 15 per cent to 50 per cent. Its storage would now be at 50 per cent capacity and Leongatha would not have a problem. That's true isn't it?---Your question is predicated on the starting figure that you're giving me, which I don't have the benefit of, so I don't know what you want me to say.
**** IAN CHARLES BIRD XXN MR ADDISON
Of course it's predicated on that figure, but you say, like you yesterday, are not prepared this morning, with regard to knowing what's in the storage tanks. That's why I am a bit surprised that you haven't prepared this morning for what's in the storage tanks. Can I ask you, is there any reason why you haven't called your branch managers with regard to these questions?---I have left that to the operational people.
PN266
No, no, no, I accept that. The question was, why hasn't the company called its branch managers to give evidence with regard to this if you're not the person that knows the answers to these questions? Why weren't the individual branch managers called?---In here today?
PN267
Yes?---The decision was made that I would be providing the evidence in respect to this proceedings.
PN268
But your evidence is that you don't know the answers to the questions?---That's not my evidence.
PN269
Well that is your evidence isn't it?---No, you have asked me some questions that I don't have the answers to and I have answered those.
PN270
You said you prepared yesterday, you said you were here yesterday to give evidence with regard to capacity, storage levels, et cetera. That's correct?---I was asked questions about those things and - and the advice - - -
PN271
You were asked questions in chief - - -?---Yes, and the advice that I would received from branch managers about the impact of the industrial action is as I particularised yesterday in those answers.
PN272
Can I ask you what was in the tank yesterday at Koroit?---Sorry, can you or did you?
PN273
Can I ask you what was in the tank yesterday at Koroit?---I don't have that information.
PN274
Can I ask you what the storage capacity of Koroit is?---I don't have that information. In - in litres - no I don't have that.
PN275
Well you said earlier that you prepared for yesterday?---Mm.
**** IAN CHARLES BIRD XXN MR ADDISON
With regard to these questions of loss?---Mm.
PN276
The evidence that you went to you yesterday was evidence about loss. Did you hear me yesterday saying to the Commission, "You should grant this order because the company is suffering damage and loss". My friend took you through some examples with regard to particular issues. He took you to Leongatha and you talked about milk being diverted, you talked about products you couldn't produce, you gave evidence based on these capacity problems and the fact that you couldn't produce certain products; that you would suffer approximately $20,000 loss per day. That was your evidence. You said there is limited milk storage, you talked about the milk that was available and you concentrated wholly and solely on one branch, Leongatha. The system is a system of seven plants, isn't it?---Yes.
And milk is regularly transported from branch to branch, that's true too, isn't it?
---Yes.
PN278
In the north, the various plants in the north transfer milk between them all the time?---From time to time, yes.
PN279
Koroit branch - which is the branch I was just asking about - last week transferred milk not only within the company, but also to Nestlé, that's correct isn't it?---I am unaware of that.
PN280
Koroit also regularly transfers milk to Warrnambool Butter Factory, that's correct?---I am unaware of that.
PN281
You're unaware of these questions?---I presume - look from time to time there are transfers between ourselves and other companies. That is correct, the exact dates of what happened this week or exact details of what the transfers were this week, I don't have. But those - but transfers happen as you have described, from time to time, yes.
PN282
Well they happen all of the time, don't they?---Well from time to time.
PN283
Well all of the time. They happen on a regular and systematic basis. Milk is transferred from your factories or from your farms to Nestlé, Parmalat, Warrnambool Cheese and Butter?---From time to time.
PN284
Every week?---From time to time.
**** IAN CHARLES BIRD XXN MR ADDISON
Yes, every week?---From time to time. It's - it's not correct that transfers between Murray Goulburn and other companies would occur all of the time.
PN285
No I didn't say all of the time, I said regularly and systematically. That's true isn't it?---It occurs from time to time. The regularity - what the timing is, what gets shipped, how often and that sort of thing I would probably need another question for some clarity there, but from time to time is what happens.
PN286
Okay. I put it to you that you came here yesterday to give evidence on loss?
---Mm.
PN287
And you only had instructions with regard to one factory, that was Leongatha. That's true isn't it?---I gave evidence about Leongatha as an example - - -
PN288
I know what you did - - -?---in respect to loss.
Yes. I put it to you that you only had instructions with regard to storage capacity and losses with regard to Leongatha?---In relation to Leongatha, I didn't have storage capacity in litres, I had storage capacity information from all of the branches about what the industrial action - were it to persist - would do to the level of carryover. I was also asked questions which I answered in respect of giving Leongatha an - as an example of losses incurred and potential losses that could be incurred. For example a UHT question.
Can I ask you what the carryover - if that's your position - what the carryover at Maffra was yesterday?---In litres, I don't have that information.
PN291
As a percentage of the storage?---I don't have that.
PN292
You don't have those answers? Can I ask you what the carryover was the day before in Maffra on 1 February?---In litres and in percentage I don't have that.
PN293
No?---What I do have is the advice of the branch managers, that the - the consequence of the industrial action was that their carryover was building up. And if it persisted the likelihood of increased carryover would be a result. And - and that cause - and the consequences flow from that.
PN294
Okay, now given the fact that you're the business person - just bear with me one second while I just find something - you gave evidence yesterday with regard to the effects of the industrial action at Leongatha in terms of the carryover, et cetera, et cetera, et cetera. And you gave a figure of $20,000 as the loss at Leongatha. Can I ask you what the figure for loss is at Maffra?---The - I don't have a figure for loss at Maffra.
**** IAN CHARLES BIRD XXN MR ADDISON
That's right. Can I ask you what the loss is for Cobram?---I don't have that figure.
PN295
And Koroit?---I don't have that figure.
PN296
At Kiewa?---I don't have that figure.
PN297
You don't have that figure for any branch apart from Leongatha, that's true isn't it?---Correct.
PN298
You don't know the consequences of the industrial action in any other branch except Leongatha. That's true, isn't it?---I don't have the figure for the costs for those other branches as we sit. But not - - -
PN299
You don't have the costs because you - - -?---And I provided the - the cost information for Leongatha as an example.
PN300
Yes, you don't have those details because you haven't asked for them that's true isn't it?---I don't have that information because it hasn't been collated for me at this time.
PN301
Just one other question. If I can just refer you to S3 which is the email that was handed up this morning?---Mine's not marked S3, that's the email from me?
PN302
Yes, that's the email you have got, yes sorry?---Yes.
PN303
You caused that email to be sent last night?---I did.
PN304
At 6.26?---Yes.
PN305
And just so there is no surprises for me, was that solely dealing with the issue that I raised yesterday morning, or have there been other issues yesterday?---Having taken advice on the procedure, and having advised our managers that if this was - if a lock-out was to be considered that there was a procedure to follow, I took this decision as a matter of prudence to make sure that there was a written confirmation that we'd instructed the managers of the procedure.
**** IAN CHARLES BIRD XXN MR ADDISON
Okay, I have no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein?
<CROSS-EXAMINATION BY MR BORENSTEIN [10.05AM]
PN307
MR BORENSTEIN: Just a couple; just on that point Mr Bird, do you - in respect of the attempted lock-out that you referred to in this email, do you accept that the lock-out on that day was incorrectly done?---When you say the attempted lock-out, are you referring to the lock-out of workers at Koroit?
PN308
Yes?---And is your - sorry, could you repeat your questions?
PN309
As I understand the evidence that you gave this morning in-chief, you said that you were advised by a branch manager was it, from Koroit?---Koroit.
PN310
That he had told his employees to go home at a time that was before when they started the stoppage of work?---That's correct, yes.
PN311
I think he told you what he actually did on that day?---Yes he did.
PN312
You then sent out an email saying that you were - before any such action like this lock-out is taken you wanted to be contacted first?---Yes
PN313
I am asking that do you accept that the actions by that branch manager at Koroit, wasn't sufficient for - sorry, wasn't the required
procedure for a proper
lock-out?---Yes, the legal advice I have received it would seem that's the case, yes.
PN314
What do you understand to be what's required for a proper lock-out?---I understand that some paperwork has to be done, that notices have to be given to relevant people to formalise it.
PN315
Yes?---Yes.
PN316
That's correct. And that wasn't done at Koroit?---That's correct.
PN317
So do I understand it that the employees at Koroit who were told to go home and locked-out, would be being paid for the rest of that day?---I have - I have got to take some advice on that.
PN318
Okay. Have any other employees been locked out at Murray Goulburn?---I don't believe so. I was advised of a similar conversation at Cobram, where the manager made a similar - - -
**** IAN CHARLES BIRD XXN MR BORENSTEIN
Direction?---Advise to his - his maintenance workers. And I am also advised that in spite of that advice, those workers remained at work and at the site until the notified time of 1 pm, at which time they left.
PN319
So they will be paid to that time, you would expect?---I would expect so.
PN320
No further questions.
THE SENIOR DEPUTY PRESIDENT: Mr Sharard?
<RE-EXAMINATION BY MR SHARARD [10.08AM]
PN322
MR SHARARD: Now, Mr Addison in his questions to you, referred to the meeting - the negotiation that was held on Monday 31 January. After that meeting you asked the shop steward for another meeting date, and Mr Addison made much of the time lag between you making that request and the time at which Murray Goulburn's application was lodged. Now, my question to you is quite simple, at the time that you decided that that application should be lodged, did you believe that the unions were going to come back to you with another meeting date?---No.
PN323
Thank you. Mr Addison also took you through your evidence yesterday in relation to losses at Leongatha and referred to you giving evidence about the $20,000 loss. Now, what was that $20,000 loss we were told?---That was additional cost of working for transportation of the milk from the site.
PN324
I think in your evidence you actually gave evidence of there being another and larger loss that occurred as a result of product change?---Yes I did.
PN325
What was the amount of that loss?---The figure I gave in relation to that was six to nine million. I - sorry, start again. The figure I gave in relation to that loss was approximately $100,000.
PN326
It was your evidence yesterday that that loss resulted from a requirement to a product change, and there was additional transport costs incurred, so $100,000 plus $20,000. It was your evidence yesterday that that was attributable to delay as a result of the industrial action, and Mr Addison has challenged you on that. Is that still your understanding?---Yes it is.
PN327
Where and what do you base that understanding on?---Base it on the understanding that the - the repair could not have been affected or couldn't have - couldn't be affected expeditiously because at the conclusion of the ordinary day our maintenance workers left the site - - -
**** IAN CHARLES BIRD RXN MR SHARARD
Who gave you that information?---The branch.
PN328
You also gave evidence and Mr Addison has taken you through this as well, about the question about the quality of UHT that was produced at Leongatha?---Yes.
PN329
As far as you were aware, is the evidence you gave yesterday that there is doubt or there is a concern about the quality of that product.
Does that concern
remain?---That concern remains, yes.
PN330
That's all, thank you.
PN331
THE SENIOR DEPUTY PRESIDENT: Mr Bird, what's the dollar value of the product produced at Leongatha per day?---The dollar value - it depends on the product mix, your Honour, but it would be in that range, the six to nine million odd dollars per day range. It depends on the product mix.
PN332
Right, okay, and what about Murray Goulburn as a whole per day?---If you can indulge me, your Honour, I am just doing some quick maths. It's - it's approximately in the order of 20 to $30,000 per day.
Nothing arising? Thank you Mr Bird, you are excused.
PN334
THE SENIOR DEPUTY PRESIDENT: Does that complete the witness evidence?
PN335
MR SHARARD: Yes it does, your Honour.
PN336
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN337
MR SHARARD: Would you like me to proceed with - - -
PN338
THE SENIOR DEPUTY PRESIDENT: We will just ask the unions if they have got any evidence themselves - - -
PN339
MR ADDISON: No, your Honour.
PN340
THE SENIOR DEPUTY PRESIDENT: Okay. Are you ready to go Mr Sharard?
PN341
MR SHARARD: Yes, your Honour, I am.
PN342
THE SENIOR DEPUTY PRESIDENT: Yes.
PN343
MR SHARARD: Your Honour, firstly I would submit that on the basis of the evidence given by Mr Bird yesterday, that the jurisdictional facts required for the making of the section 127 order are in existence. There is industrial action that has both happened and threatened, impending or probable. The industrial action is in relation to negotiation and agreement of division 2 of the Act, and further is in relation to work regulated by an award and certified agreement and the applicant, Murray Goulburn, has clearly been directly affected and will be directly affected by any continuing or further industrial action.
PN344
Now moving to what we say are the deficiencies in the notices of industrial action. Your Honour it's well established on the authorities that the Workplace Relations Act sets out a procedure for taking protected action and that if a party does not follow that procedure it takes industrial action not provided for by the Act, and such industrial action is not protected action.
PN345
An important part of the procedure required by the Act is the giving of notice of an intended industrial action, in accordance with section 170MO. Such notice must state the nature of the intended action and the day when it will begin in accordance with section 170MO(5) of the Act.
PN346
Now the principles to be applied in assessing whether a notice does accord with section 170MO(5) have been discussed in a number of decisions of the Federal Court. If your Honour pleases I will begin by handing up a copy of the Davids Distribution Case. Now in Davids Distribution, Justices Wilcox and Cooper considered amongst other matters, whether a notice that referred to bans and rolling stoppages constituted adequate notice in terms of section 170MO.
PN347
At paragraph 82 of this decision, Justices Wilcox and Cooper discuss Justice North's view, the appropriate manner in which to give notice was in fact to adopt the wording of the definition of industrial action in a Workplace Relations Act. Now, Justices Wilcox and Cooper took a different view and at paragraph 86 of the decision, it's on page 578, they observed that Justice North's proposed approach would place a premium on legalism. They then go on to express their view as to the operation of section 170MO(5) at paragraph 87 on page 578, and in that paragraph they state that:
PN348
We think section 170MO(5) was designed to ensure that the industrial disputants who are to become affected by protected action in relation to which their usual rights are significantly diminished, are at least able to take appropriate defensive action.
PN349
And their Honours go on in that paragraph to give examples of what taking defensive action might entail, and they give an example of an employer who - with advanced warning - might shut down a machine that would be damaged if it's shutdown in an uncontrolled manner, and they give various other examples.
PN350
Now at paragraph 88, their Honours - and here they're clearly referring to North Js legalistic approach that they have rejected - state that:
PN351
It would be apparent we think it is necessary ...(reads)... equipment, rolling stoppages throughout the mine, a ban on the servicing of delivery vehicle.
PN352
So those we say are examples put forward by the court of ordinary industrial English. Now, I think it's clear from the context, that Justices Wilcox and Cooper are not suggesting that a description along the lines of rolling stoppages throughout the mine is going to satisfy the requirements of section 170MO(5) in all cases. Rather, they are indicating that this sort of ordinary industrial English is acceptable provided the notice does satisfy the requirement of enabling the party to give given notice to take appropriate defensive action in the particular circumstances.
PN353
Indeed, at paragraph 89, Justices Wilcox and Cooper add that:
PN354
If we're correct in this approach, it follows that a notice that refers only to bans and rolling stoppages without any indication of the nature of the bans, or the location of the rolling stoppages, does not adequately disclose the nature of the intended action.
PN355
So the wording, "Bans and rolling stoppages" was found not to be an adequate description for the purposes of section 170MO(5)
in the circumstances of this case. Now, in a subsequent decision in Adelaide Brighton Cement and AWU,
von Doussa J,also considered the adequacy of notices of intended industrial action that referred to a series of rolling stoppages
and I will hand that decision up also, your Honour.
PN356
Now the notices considered by von Doussa, J, in this case they're described at paragraphs 7 and 8 on pages 105 and 106 of this decision. The notices from the AWU notified rolling stoppages and indicated that the duration of each stoppage was to be 24 hours. The notice specified the dates the stoppages would commence and the notices specified that they would continue until the date specified in the notice. And the notices given by the AMWU and CEPU in this case were in similar terms.
PN357
Now, von Doussa J, sites with approval, the Davids Distribution decision and then importantly for present purposes at paragraph 18 on page 108 of the decision von Doussa states that:
PN358
The degree of specificity in a notice sufficient to enable the employer to take appropriate defensive action must be judged against the nature of the employer's undertaking and the way in which that undertaking operates.
PN359
Now paragraphs 19 and 20 of this decision on pages 108 and 109 record various factors that were put forward to the court as contributing to the inadequacy of the notices in this case, in the context of that employer's undertaking. I note in particular the references to the difficulties that the employer had in taking appropriate defensive action, given back to such as the lack of information as to the time of day or frequency of the rolling stoppages, lack of information as to the specific areas in which the stoppages would occur, so where the employer would need to allocate additional resources.
PN360
Another factor put forward was the length, the time needed to stop and restart particular plant and re-establish production. A further factor put forward was the lack of notice as to whether action by the members of one of the three unions concerned would be taken in conjunction with or followed by action by members of one or more of the other unions, with a possibility of combined stoppages or staggered sequences of stoppages by the members of the three unions concerned.
PN361
In paragraphs 22 and 23 of the decision, that's on page 110, von Doussa J finds that the notices failed to meet the requirements of section 170MO(5) and refers in particular to the failure to give an indication of when the 24 hour stoppages after the first one would take place and that in judging whether each of the three notices were sufficient to enable the employer to take appropriate defensive action, the notices given by the other two unions comprised part of the factual circumstances against which the position of the employer had to be assessed.
PN362
Now von Doussa J found that each of the three notices were insufficiently particular, but we're not suggesting that on the basis of Davids or the Adelaide Brighton Cement case that this is authority for a proposition that the wording, "Rolling stoppages" will never be sufficient in a notice for the purposes of section 170MO(5). And I am sure that Mr Borenstein and Mr Addison would be presenting a number of cases where the use of this wording in the facts of a particular case, have been judged to be adequate. What we say is that whether any description is adequate for the purposes of section 170MO(5) to enable appropriate defensive action to be taken, can only be judged on the particular facts and taking into account factors including the nature of the employer's undertaking and the way in which it operates.
PN363
Now that said, I would submit that there are a number of parallels that can be drawn between the circumstances in the Adelaide Brighton Cement Case and Murray Goulburn circumstances. For example, as with the notices considered by von Doussa J, the notices given to Murray Goulburn do not provide information as to the time of day or frequency of the rolling stoppages after the first one. Like the circumstances considered by von Doussa J, Murray Goulburn has no notice of whether members of each of the three unions will engage in stoppages in conjunction with each other or sequentially or in a staggered fashion. Similarly to the delays in stopping and starting plant in the circumstances considered by von Doussa J, Mr Bird has given evidence regarding the difficulties and delays that can arise if production machinery is stopped or fails part way through a production run.
PN364
Mr Bird spoke of course about having to clean out product and then the very real difficulties in disposing of spoiled product in an environmentally acceptable fashion.
PN365
Now I would submit that the position faced by Murray Goulburn in being able to take appropriate defensive action in response to the unions' notices is in fact considerably more difficult than the circumstances of the employer considered by von Doussa J. For example, in contrast to the notices given by von Doussa J, the notices given to Murray Goulburn do not specify the duration of the rolling stoppages. Murray Goulburn is faced with the possibility of action taken at unspecified times, not just by members of the three unions in one plant, but by members of the AMWU, CEPU and CFMEU separately or in a coordinated manner across seven separate plants.
PN366
Murray Goulburn is dealing with highly perishable raw materials and products, for which there are exacting storage, quality and hygiene standards to be maintained. Murray Goulburn has to make decisions as to whether it can store milk at a particular plant, or transport milk between plants, or possibly transport milk to another milk processor and whether for example, it should switch to another lower valued product at the same plant. Depending upon what equipment is working, what equipment is under threat at particular plants, and that will obviously depend upon the timing and location of which industrial action is occurring or will be occurring.
PN367
And moreover, as Mr Bird has pointed out, Murray Goulburn supplied milk can't be turned off. Some or all of ten million litres of milk per day must either be collected by Murray Goulburn or it must be left with its members' farmers to deal with. They can store it on the farm for a very limited period, or then they have the disposal problem and of course the loss of income that goes with it.
PN368
Your Honour I also wanted to refer to the decision of Senior Deputy President Watson in CUB and CFMEU and I will hand up a copy of that. I don't propose to go through this decision in detail. Your Honour, I note that the Senior Deputy President refers to the Davids Distribution and the Adelaide Brighton Cement cases and various other authorities, and at paragraph 31 of his decision on page 13 sets out a number of principals discerned from the authorities to apply in determining whether or not a particular notice of intended action meets the requirements of section 170MO(5).
PN369
And those principals include that the degree of specificity required of a notice involves a degree of judgment, that extreme approaches either providing nothing more than an indication of industrial action on the one hand, or precise details of every future act or omission on the other, should be avoided. That regard should be had to the nature of the employer's undertaking and the way in which that undertaking operates. That the adequacy of specification is to be considered in the context of the purpose of the notice, being to allow the taking of appropriate defensive action, and that the use of ordinary industrial English will suffice providing that purpose is met.
PN370
Now the terms of the notice being considered by his Honour are set out at paragraph 6 of the decision and I note at the third dot point in that paragraph is a reference to stoppages that will occur on specified days of the week.
PN371
Again, we say that whether a notice such as that being considered by SDP Watson is adequate, depends upon the particular circumstances.
And in fact in this case his Honour found the notices adequate. If we go to paragraph 37 of his Honour's decision, he expressed
the view that those notices were adequate, he observes that they are more specific as to timing than the provisions considered by
von Doussa J, in the Adelaide Brighton Cement case. The notices provide sufficient specificity in relation to the first three types
of industrial action advised and so on.
PN372
The important point that I want to draw out again, is his Honour's next sentence which is that the level of specificity in relation to these matters does enable CUB to take appropriate defensive action, so that's the test, in the particular circumstances of its operations. So regard must be had to the particular circumstance of the employer, there are no magic words here that will suit all and any purpose or all and any situation.
PN373
Now your Honour, I submit that having regard to the nature of Murray Goulburn's operations, as have been described by Mr Bird, and the circumstances that I have referred to when discussing von Doussa J's decision, including the fact that notices have been given by all three unions in respect of all seven Murray Goulburn plants. That the notices given by each of the unions are not adequate to enable Murray Goulburn to take appropriate defensive action. Consequently, I submit that the notices do not satisfy the requirements of the Act, with the result that the industrial action taken to date has not been protected action and any continuing or further industrial action taken in reliance of those notices, will not be protected action.
PN374
Your Honour, going to the issue of discretion - - -
PN375
THE SENIOR DEPUTY PRESIDENT: Just before you do, can you take me to the specific evidence of Mr Bird which you say indicates that they can't take appropriate defensive action?
PN376
MR SHARARD: I am sorry your Honour, I have missed that.
PN377
THE SENIOR DEPUTY PRESIDENT: Can you take me to the specific evidence of Mr Bird which you say indicates that Murray Goulburn can't take appropriate defensive action.
PN378
MR SHARARD: Mr Bird gave evidence regarding the sorts of actions that would be open to Murray Goulburn to try to avoid or minimise losses from industrial action, and my recollection is that he referred to attempting to cover with additional resources and with the staff, and he indicated on my recollection, that given the geographic spread of the plants and other issues, it was not possible to maintain effective coverage through alternative resources. Of all of the plants, Mr Bird indicated that where a breakdown occurred with particular equipment, they may be able to make an alternative lower valued profit product, as has happened at Leongatha.
PN379
THE SENIOR DEPUTY PRESIDENT: Hang on, that's the effect, what's the appropriate defensive action?
PN380
MR SHARARD: Well, I am sorry your Honour, the defensive action I would say is the decision to make the lower valued product. I mean it's clear that faced with a plant breakdown, Murray Goulburn is going to have to make a decision between a number of choices.
PN381
THE SENIOR DEPUTY PRESIDENT: Yes.
PN382
MR SHARARD: Trying to send milk somewhere else trying to minimise its - - -
PN383
THE SENIOR DEPUTY PRESIDENT: Don't give me the submission, give me the evidence that you say is about appropriate defensive action. The first bit you have gone to is about coverage with respect to resources and then you say the evidence was that it's insufficient. The second aspect you went to was go to alternative product.
PN384
MR SHARARD: Yes, and my recollection of the evidence was that Mr Bird gave a number of examples of possible actions and then referred to the fact that the appropriate action in the circumstances would depend upon factors such as whether industrial action was happening at other plants, whether the equipment - for example - an equipment failure was likely to be repaired, given the industrial action that was likely or would be occurred and what its length - likely length - would be and so for. So I hope that I am accurately paraphrasing what Mr Bird had said, but my recollection of what Mr Bird said was there are these different options they have.
PN385
But to make the sensible choice between them, they need to know what is going to happen at other plants, or what is happening at other plants, how long that's going to last, and what is happening at the plant where the immediate problem is; how long the industrial action is likely to last or when there will be further industrial action and whether it's all of the members of the three unions, whether it's simultaneous at this plant and the other plants.
PN386
THE SENIOR DEPUTY PRESIDENT: But he didn't give that evidence, did he?
PN387
MR SHARARD: Well I recall asking Mr Bird what factors would need to be taken into account in making such a decision - - -
PN388
THE SENIOR DEPUTY PRESIDENT: Yes.
PN389
MR SHARARD: And I recall him referring to needing to know the length and timing of industrial action at the plant and other plants. I am sorry if my recollection is faulty, but that is my recollection.
PN390
THE SENIOR DEPUTY PRESIDENT: Well if we need to know the length and timing, how much information about length and timing do we need? Do we need one second or do we need three hours or what?
PN391
MR SHARARD: I don't think that's a question that I can answer in the abstract. I mean - - -
PN392
THE SENIOR DEPUTY PRESIDENT: Is there evidence on it?
PN393
MR SHARARD: There was evidence in relation to a decision to truck milk to another location. My recollection is that Mr Bird said that really the leave time there was in the order of days.
PN394
THE SENIOR DEPUTY PRESIDENT: But that was done wasn't it? Was it done?
PN395
MR SHARARD: Sorry? Was what done?
PN396
THE SENIOR DEPUTY PRESIDENT: Was the milk trucked - - -
PN397
MR SHARARD: Sorry, no - I am sorry, not to another location it was another processor.
PN398
THE SENIOR DEPUTY PRESIDENT: Was the milk trucked?
PN399
MR SHARARD: Was there milk trucked to another processor?
PN400
THE SENIOR DEPUTY PRESIDENT: Yes. Was that the evidence, that it was actually transferred - - -
PN401
MR SHARARD: No. No, the evidence was simply that that would be an option, a possible defensive action that might be open.
PN402
THE SENIOR DEPUTY PRESIDENT: Yes. I mean there is other evidence about, "We can store it".
PN403
MR SHARARD: Yes.
PN404
THE SENIOR DEPUTY PRESIDENT: And transfer between branches and between companies.
PN405
MR SHARARD: Yes.
PN406
THE SENIOR DEPUTY PRESIDENT: Do I have evidence on time?
PN407
MR SHARARD: You do. The timing that's involved in making those
decisions - - -
PN408
THE SENIOR DEPUTY PRESIDENT: No.
PN409
MR SHARARD: Well I think you probably don't except in the case of the trucking of milk to another processor. But your Honour, I would say it's self evident that if you're trying to make a decision whether to - let's have a look at it - to produce a lower valued product at say Leongatha, or truck the product to another plant, then to make a commercially sensible decision you need to know how long your equipment is going to be out of action at the plant, where there is a problem. You need to factor in the costs of transport, you need to consider whether there is in fact going to be industrial action occurring at the plant you're sending it to and so whether you're just throwing money down the drain.
PN410
I mean I think these are all choices that involve losses and minimising losses and I mean I think it's obvious just from the nature of them your Honour, that the more information you had about what industrial action is being taken at the instant plant, the plant you may be looking at transferring to and so forth, the more sensibly you can make that decision.
PN411
Now, we're not suggesting that to satisfy the requirements of section 170MO(5) the unions have to give every piece of detailed information, I am not proposing to tell the Commission or anyone else in those complex circumstances, what notice would be adequate. But we say that the notice that has been given with no indication as to timing, no indication as to the work areas in which the action will take place or whether it will be all of them. No indication as to whether there is coordination between sites, no indication as to duration that in the circumstances in which Murray Goulburn operates, that is manifestly inadequate to enable it to take defensive action. It has these steps it can take, and I would say it's simply obvious that deciding - choosing between those alternatives and perhaps deciding on dumping milk if it comes to that, making a sensible decision in those circumstances depends upon knowledge about what's happening with the industrial action.
PN412
THE SENIOR DEPUTY PRESIDENT: And if that's right, is a lock-out appropriate defensive action?
PN413
MR SHARARD: I suppose that in some circumstances it might be, I mean if that was a way - if somehow that resulted in you minimising your losses, I mean I suppose you could say that would be commercially justified and appropriate defensive action. I would hasten to add that that's not my understanding of what's occurred at Murray Goulburn. I mean in other circumstances, no one would think, that in other circumstances a lock-out would be an industrial tool, you could say, and probably - well certainly you haven't got the potential to result in losses I would have thought. Stand down of employees unable to work, for example if there was a critical or a sort of steam failure or something at a plant, that meant - and that it couldn't be repaired and say no one could work, and stand down of employees who couldn't usefully be employed, would probably be in appropriate circumstances, appropriate defensive action.
PN414
THE SENIOR DEPUTY PRESIDENT: You were going to discretion?
PN415
MR SHARARD: Your Honour, on the issue of discretion we don't suggest that if our submissions are accepted and you did conclude that the notices given by the unions in the particular circumstances are inadequate and consequently that the industrial action is unprotected, that it should follow from that that an order should automatically issue. We certainly don't suggest that.
PN416
However we would submit that in the circumstances the failure to give proper notice is a very relevant consideration. And the last authority I would like to hand up, if I may, is the decision of the Full Bench in CEPU and AG Coombs. Now, I would just like to take you to a passage at page 111 of that decision, where the Full Bench is discussing the previous Full Bench decision in Coal and Allied. And towards the bottom of page 111, the Full Bench says:
PN417
It was submitted, relying on the passages just quoted, that in hearing section 127 applications, the Commission is required to decide whether particular industrial action is legitimate or illegitimate and only if that action is found to be illegitimate to make an order.
PN418
We think that this approach is simplistic and it involves too literal a reading of the Full Bench's comments. The Full Bench pointed out that section 127 involves the exercise of a discretion, that the passages do not suggest that the exercise of the discretion should be artificially limited, so as to turn simply on the question of whether the industrial action was legitimate. The discretion is to be exercised on normal principals taking into account all of the relevant circumstances, including but not limited to the nature and extent of the industrial action. And the Full Bench goes on:
PN419
We add that in the exercise of that discretion, it is a very relevant consideration that the Act provides a procedure for the taking of protected industrial action.
PN420
The procedure involves initiation of a bargaining period, supplying particulars of the matters sought to be negotiated - I am paraphrasing here, your Honour - the giving of notice of industrial action, and so forth. And the Full Bench then says:
PN421
Where an organisation or person declines to follow the procedure, it takes industrial action not provided for in the Act.
PN422
Now we say that this is not a situation where there has been some mere technical deficiency in the notice, such as getting the employer's names slightly wrong, or something like that. We submit that this is a substantive failure, going to the fundamental purpose of the requirement to give notice under the Act. Namely, to enable appropriate defensive action to be taken. And that failure, we say, has a very real impact upon Murray Goulburn, and the damages it faces and upon third parties, as a result of the industrial action.
PN423
We don't suggest that the failure to adequately specify the industrial action in the notices is deliberate, but that does not lessen the impact of the failure upon Murray Goulburn and upon third parties.
PN424
Your Honour, I respectfully submit there are a number of factors in this case going to the exercising of your discretion to make an order in the terms sought by Murray Goulburn; for the reasons just discussed we submit that the industrial action is not protected action and that this is a very relevant consideration in the words of the Full Bench.
PN425
The industrial action has - and further industrial action will breach the employees' contracts of employment, and organising such action on the part of the unions constitutes unlawful interference with the contractual relations.
PN426
THE SENIOR DEPUTY PRESIDENT: Sorry, you will have to go through these slowly. So the first one is it is not protected, the second one is it breaches contract of employment - - -
PN427
MR SHARARD: And that the unions' activity in organising that industrial action is also tortious.
PN428
THE SENIOR DEPUTY PRESIDENT: Tortious.
PN429
MR SHARARD: Tortious. The industrial action has been taken and continues to be taken in circumstances where Murray Goulburn believes there still continue to be real prospects of a negotiated agreement without resort to further industrial action. But the unions - I think to put it fairly - have not been eager to accept Murray Goulburn's requests for further meetings.
PN430
The industrial action to date has caused significant loss and damage to the business of Murray Goulburn. Mr Bird has been cross-examined on that evidence this morning, and continuing of further industrial action has the potential to result in far greater immediate or long term losses to Murray Goulburn.
PN431
THE SENIOR DEPUTY PRESIDENT: What's the extent of the loss and damage to date?
PN432
MR SHARARD: The evidence in relation to - given by Mr Bird yesterday - in relation to Leongatha, was - if I recall - around $200,000 as a result of having to make a lower value product at Leongatha, and $20,000 in additional transport costs.
PN433
THE SENIOR DEPUTY PRESIDENT: Is that the trucking?
PN434
MR SHARARD: Yes, my recollection is that the 20,000 was additional transport costs for shipping the milk to another plant.
PN435
THE SENIOR DEPUTY PRESIDENT: I thought he said the trucking didn't take place?
PN436
MR SHARARD: Sorry? Your Honour, I apologise I was just clarifying my instructions. My understanding is that the bulk milk was trucked to Maffra and Koroit and it was at those plants that the lower valued product was produced. As I understand it the higher value product can only be produced at Leongatha.
PN437
THE SENIOR DEPUTY PRESIDENT: So it's 220,000 is it? Is that the evidence?
PN438
MR SHARARD: I am sorry, 100,000, I have just been corrected.
PN439
THE SENIOR DEPUTY PRESIDENT: So what's the total then?
PN440
MR SHARARD: 120,000.
PN441
THE SENIOR DEPUTY PRESIDENT: 120,000?
PN442
MR SHARARD: Yes. Your Honour, I would also submit that continuing of further industrial action has a real potential to result in significant loss and damage to third parties, namely Murray Goulburn's member farmers. And the members of the rural communities generally in which Murray Goulburn operates. Mr Bird's evidence was that currently there is around ten million litres of milk per day to be collected and that simply on the price of the milk that puts 3.5 million dollars per day in income into farmers' pockets in these rural communities.
PN443
I also recall that when I asked Mr Bird about what the potential impact of the industrial action was he said, "Well I have to speculate". And I think that makes our point, your Honour. Mr Bird simply doesn't have sufficient information about what will happen to make an accurate assessment.
I would also submit that the making of the order would provide something of a cooling off period in which Murray Goulburn will certainly seek further negotiations and it would also give Murray Goulburn a chance to catch up on its milk processing, as Mr Bird put it. And giving Murray Goulburn the opportunity to do that would obviously lessen the immediate risk of a breakdown or delays caused by industrial action, resulting in very significant losses, possibly including the dumping of milk.
PN445
Finally, your Honour, of course it will be open to the unions to serve notices that comply with section 170MO and after the requisite period to engage in protected action. So for those reasons, Murray Goulburn respectfully asks that your Honour exercise your discretion to make the order today, in the terms sought. If your Honour pleases.
PN446
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Addison?
PN447
MR ADDISON: Yes thanks, your Honour. Your Honour, we see the application that's before the Commission today as misconceived. The jurisdictional prerequisite cannot be met because of the immunity provisions at section 170(m)(t)(2). The action that is taking place is in fact protected industrial action and it has been appropriately notified pursuant to section 170MO.
PN448
The evidence of Mr Bird is unambiguous with regard to the notice itself. Mr Bird knows in very clear terms what the notice means and Mr Bird gave evidence both in-chief yesterday and in cross-examination today, your Honour, that he understood both ban one and ban two, if I can put it in those terms. He understood what the meaning of rolling stoppages of work affecting metal trades, electrical trades and boiler house operations work at Rochester, Maffra, Kiewa, Cobram, Leitchville, Leongatha and Koroit sites meant. He knows that very clearly.
PN449
Your Honour, we do rely on Davids, we do rely on the comments of the Full Court, with regard to the purpose of notifications under section 170MO. The purpose is very clear, in paragraph 87 of the decision which my friend has already referred to. The purpose is so that an employer can understand what is being notified and then take the appropriate defensive action. My friend misconstrues that proposition. What my friend effectively is submitting to you, your Honour, is that they don't want to take any losses, that they should be in a position to be able to make decisions, then ensure there is no loss and that they can make decisions to mitigate their losses across the board. The appropriate defensive action in this case is in fact laid out by - - -
PN450
THE SENIOR DEPUTY PRESIDENT: Sorry?
PN451
MR ADDISON: Is in fact laid out by the court in paragraph 87. They say here for example - and if I can just take you to the very quote my friend gave you, your Honour.
PN452
THE SENIOR DEPUTY PRESIDENT: You're in Davids?
PN453
MR ADDISON: In Davids, paragraph 87, your Honour, second - well it's not really a sentence, it's after the comma on the third line in my copy which is not the copy my friend has handed up, so I may go into my friend's copy, it might be easier. Paragraph 87, the court in fact puts the example there, and it starts in the one, two three - fourth line, the quote says:
PN454
For example an employer may operate a sophisticated item of equipment that will be damaged if precipitatively shut down. If warned in advance of a ban that might affect the continuing operation of the plant, the employer might choose a controlled shutdown during the period of the notice. Et cetera.
PN455
The defensive action here might have been, and the employer may well take the choice of saying, okay we will close down Leongatha, we will have a controlled shutdown of the Leongatha Butter Factory, we will have to wear the losses and the losses might run in the millions of dollars, but we will make that decision to close it down, we will stand down the NUW, we will stand down the TWU, we will lock out the AMWU, the ETU and the CFMEU. That is defensive action which is available for the company. And on the evidence that's been presented to you - and we say there is a dearth of evidence with regard to loss, the evidence is far from satisfactory - the only evidence that's been presented to the Commission of loss, is evidence of some supposed losses at Leongatha.
PN456
In terms of cross-examination, the company's own witness couldn't even address the question of loss at any of the other branches. There is no evidence that there is any loss or indeed any capacity problems, at any of the other six branches. So the only evidence that the Commission has before it is that there is a supposed loss of maybe $120,000 at Leongatha in the context of a company - and I think the evidence that Mr Bird gave this morning in a question from yourself Commissioner - was that Murray Goulburn do about $20 million worth of product a day. So in terms of loss, it is less than point one of a per cent which we say is negligible.
PN457
Now, your Honour, the whole scheme of the Act, the whole purpose of the Act is to encourage agreement making. The way the Act encourages agreement meeting is to allow parties to exert economic coercion each on the other. That's what's being done here, your Honour, protected industrial action has the purpose of causing Murray Goulburn losses. That's what it's about. It's about exerting economic coercion on Murray Goulburn to focus their minds so that they will come to an agreement. In the same way Murray Goulburn could if they wish, put economic coercion on us by locking us out and forcing us to focus our mind so that we will reach agreement.
PN458
My friend's submissions are, "In effect we shouldn't suffer any losses". We say, if the Commission is to accept that submission, the Commission would be accepting a proposition which is entirely contrary - not only to the Full Court decision in Davids - but also to the purposes and the whole construction and scheme of the Workplace Relations Act. And on that basis we say that the proposition that's being put should be rejected.
Now, we note my friend's reference to the Adelaide Brighton Cement case, this has been before the Commission on numerous occasions, your Honour. As your Honour is well aware, without criticism of his Honour von Doussa J, the context of that decision was an interlocutory hearing, and it was without full argument and contrary to the Full Court authority of Davids we say. And we say Davids ought be the position which is preferred by the Commission.
PN460
We say, manifestly, our industrial action is protected and the commission should dismiss the application of the employer on the basis that no 127 lies, because of section 170MT(2). If your Honour is against us on that, we say as a matter of discretion, the Commission should not issue a section 127 order. The unions have clearly sought to take protected industrial action, and I would like to refer your Honour just to two decisions fairly quickly. I am sure your Honour is familiar with them.
PN461
The first is a decision by his Honour Justice Munro in AIG and AMWU and others, and the second is a decision by his Honour Senior Deputy President Watson in Mayne Pharma. Now, in both of these cases, the applicants ask for a section 127 order came to the Commission claiming deficiencies in terms of notification. In AIG and AMWU, your Honour, there was a state wide stoppage proposed during campaign 2003, it had been notified the applicant AIG argued that the notification had been given in the face of some companies not genuinely seeking to reach agreement and pressed the Commission for an order under section 127 to prevent the state wide stoppage.
PN462
His Honour Munro J dismissed that application, his Honour basically said at paragraph 30 - and I don't want to go through it in any great detail, your Honour - but his Honour said at the start of the second sentence of paragraph 30:
PN463
I accept that reasonable notice has been given of it, even if not technically compliant with section 170MO ...(reads)... I exercise my discretion in this manner.
PN464
Effectively what His Honour was saying was, if there is a manifest intention to take protected industrial action, the Commission shouldn't look too far beyond that. Even though there may be a technical deficiency there, there is a manifest intention and as a matter of discretion, the Commission ought not issue a 127 order to prevent that action.
PN465
Similarly in the Mayne Pharma matter, your Honour, and in Mayne Pharma similar evidence to that given by Mr Bird this morning, was given in terms of economic loss. I don't intend to go through it, your Honour, but paragraph 12 and 13 and 14 of His Honour Senior Deputy President Watson's decision lays out the question of economic loss. Mayne Pharma was a pharmaceutical company that had significant business.
PN466
There was an argument that the industrial action is not protected. His Honour Senior Deputy President Watson said the economic was a factor that did mitigate in favour of the grant of a 127. However, paragraph 126 His Honour said:
PN467
The industrial action in the circumstances of the present matter, was plainly intended by each union to be protected action. Each union undertook the requisite steps required by the Act to make the industrial action protected. They initiated the bargaining period, entered into a negotiations with Mayne and provided notice of intended industrial action, specifying the nature of the action. In the case of the AMWU, it instituted new bargaining periods, et cetera, et cetera, et cetera.
PN468
His Honour declined, as a matter of discretion to issue a 127 against AMWU and CEPU in that matter on the same basis it adopted the reasoning of Munro J in the AIG matter.
PN469
Your Honour, we say in all the circumstances it would be plainly unjust to take away the bargaining position of the employees who have complied with the Act we say, who have manifestly attempted to ensure that their industrial action is protected industrial action - and we say of course it is - but even if you're against us on that point, your Honour, we say as a matter of discretion, the Commission should not issue a section 127 order. If the Commission pleases.
PN470
THE SENIOR DEPUTY PRESIDENT: Mr Addison, during the submissions and evidence today you raised the conduct of the employer.
MR ADDISON: I did, your Honour.
PN472
THE SENIOR DEPUTY PRESIDENT: Do you rely on that?
PN473
MR ADDISON: Yes, your Honour, in terms of that my friend put a submission to you in wrapping up, that there are a range of issues
that you should consider in your discretion. My friend said there was a real prospect of agreement, but that the unions were not
eager to go to other meetings with the employer. We submit, on the evidence that's been put by Mr Bird, that's just manifestly untrue.
It was not possible, we say, on the evidence for the delegate to even have responded.
It's clear that there was a meeting on the 31st which went until - according to Mr Bird - about 4 o'clock. It's clear that following
that meeting, whether that be two minutes or ten minutes after that meeting, there is a discussion with the delegate and the company
asked the delegate when the next meeting would be and the delegate responded - and Mr Bird agreed with me reasonably - that the delegate
would contact the others and would let Mr Bird know. Well Mr Bird made a decision at some time before quart to seven that evening,
without going back to the delegate, and he's clear in his evidence on that, I asked him whether he rang the delegate prior to filing
the notification, whether he had given the delegate an opportunity even, to say, "Yes, we will meet tomorrow". He didn't
even give the delegate that curtesy or that opportunity, he simply moved ahead.
PN474
So we say that the submission that my friend has put with regard to that is disingenuous, it's not a correct proposition. If I can also say, your Honour, with regard to the evidence on loss that the applicant relies on, the applicant relies on $120,000 loss and I went to that earlier, but the applicant hasn't even bothered to check what the storage capacities are in the other six plants for the purposes of these proceedings today.
PN475
We say that the Commission should take that into account also and the Commission should follow the principals in Patricks, find that the employer has acted in a way which is not consistent with genuine attempts to resolve this matter and therefore shouldn't be rewarded for that behaviour. If the Commission pleases.
PN476
MR BORENSTEIN: If your Honour pleases, just on that point, we would also like to add that there was a conciliation held yesterday before your Honour, and your Honour was involved in those negotiations, so we say your Honour can take those into account, to see that the unions were willing to negotiate on the issues and were willing to enter into that conciliation. It wasn't successful but it certainly puts the position of the applicants in this matter to bed, we submit, in that we have negotiated with them, we haven't resolved the dispute and we're exercising our rights under the Act.
PN477
In respect of the issue of rolling stoppages, I have handed up a document, I am not sure if it was marked, it might be E1.
PN478
THE SENIOR DEPUTY PRESIDENT: It's B1 I think isn't it?
PN479
MR BORENSTEIN: B1 was it? B1.
PN480
THE SENIOR DEPUTY PRESIDENT: Your submissions, yes.
PN481
MR BORENSTEIN: Could I take your Honour first to paragraph 4 where I set out a decision of your Honour in Sigma Pharmaceuticals, it's C number 2003, 5258, given on 19 August 2003 in transcript. It dealt with a similar situation as we have here, the employer in that matter sought to say that the use of the phrase, "rolling stoppages" was insufficient for the purposes of section 170MO and your Honour notes that in your decision at PM171 and at PM172 sets out the arguments of the employer. Then at PM173 your Honour says:
PN482
It appears to me that the proposed industrial action set out in the notices is protected action having regard to the terms of the section 170MO notices and the authorities set out by the Full Federal Court in Davids case, and decisions of the Commission in the Shell and Agility Services cases.
PN483
Referred to in the submissions of the CEPU and I will get to those decisions shortly. You then come to the conclusion that the action was protected and then say that even if it was not protected, you declined to exercise your discretion. One of the reasons you do that is at PM176 where you set out what we submit is correct, that the term rolling stoppages is a recognised industrial relations term:
PN484
and the decision of the Full Federal Court in Davids case and numerous texts on industrial relations terms demonstrate, and the specificity in the section 170(m) notices of the site and the operations affected give the location of those stoppages. Sigma is therefore able to take appropriate defensive action.
PN485
We say the exact same applies here in this application. The applicants in this matter have asked for a cooling off period, which again occurred in the Sigma matter and we say what your Honour writes at PM177 is applicable in this situation as well. We submit a so called cooling off period would not lead to more productive negotiations. The unions have bargained in good faith an outcome has not been reached, and therefore the parties should be allowed to exercise their rights under the Act, to take protective industrial action.
PN486
As in that case the unions have made clear what the outstanding issues are and agreement has not been reached.
PN487
I then underline portions of the Davids Distribution case, but Mr Addison has taken you to the relevant parts of that case and I won't go any further on that. And at paragraph 6 of the submissions I set out what Mr Addison said in his submissions, in that they are at least able to take appropriate defensive action. Now, it might not be their best case scenario and they might not be able to still make a profit, but that's not what the Act envisages. We submit that they are able to take the defensive action which may be to shut down the important machinery or the like.
PN488
They have had the three day's notice of the intermittent stoppages, and if they do not choose to do anything about it, well that's their decision. But they knew that after 72 hours notice expired, that they would be facing intermittent rolling stoppages. As Mr Addison said in the cross-examination of the evidence of Mr Bird, he knew what that meant.
PN489
Further cases dealing with rolling stoppages are set out in the submissions at paragraph 7 which is a decision of SDP Polities who upholds the phrase, using the notice that there would be stop work meetings and rolling stoppages in the maintenance department.. And he held that they were valid.
PN490
In Agility Services v. CEPU, PR915007, SDP Lacy also upheld the use of the phrase rolling stoppages and at paragraph 9 of my submissions I set out and underlined the relevant parts of his decision.
PN491
In respect of the CUB case that was referred to by the applicant, we say that such a case certainly favours the case of the respondents, in that case SDP Watson upheld the phrase stoppages of work on any Wednesday and/or Thursday. We say that is no more specific than what our notice is. And in our notice we actually specify the locations as required by the Full Court of the Federal Court. So if SDP Watson upholds stoppages of work on any Wednesday and/or Thursday, which doesn't specify the length of the time nor whether it's going to occur on Wednesday and/or Thursday, we submit that clearly our notice is specific enough.
PN492
So on those bases we submit that the Commission has in numerous cases - and there is one more case which I have not quoted in the submissions, but I can give the print number, it's PR951697, a decision of SDP Marsh in Air International Interior Systems v. AMWU. And in that case the notice referred to purely, rolling stoppages without notice. And this was in respect of a company which had a production process which worked on a just in time basis. And in that case SDP Marsh held that the notice was valid and the action was protected, and this was a decision given after the Adelaide Brighton Cement decision referred to.
PN493
So on that basis we say there are numerous cases before and after Adelaide Brighton Cement that have upheld the use of the phrase rolling stoppages, as used in our notice of industrial action. On that basis we say the action is protected and the Commission should not order a 127 order. In respect of discretion, we rely on the submissions of Mr Addison and say that the action is plainly intended to be protected industrial action and we also - the case referred to by the applicant, the AG Coombs, if your Honour turns to page 112 of that decision and the last sentence - - -
PN494
THE SENIOR DEPUTY PRESIDENT: Just let me find that.
PN495
MR BORENSTEIN: Sorry your Honour.
PN496
THE SENIOR DEPUTY PRESIDENT: Yes, 112 is it?
PN497
MR BORENSTEIN: Yes, page 112 the last sentence of the first paragraph.
PN498
THE SENIOR DEPUTY PRESIDENT: Yes.
PN499
MR BORENSTEIN: It states:
PN500
In this case Commissioner Tolley was bound to take into account and no doubt did, the fact that the appellant had not purported to follow the procedure and that none of the industrial action was protected.
PN501
Now, in this case it's clear that we have at least purported to follow the procedures and take protected industrial action. In this case there was no notices filed whatsoever and they were taking industrial action during the life of a certified agreement prior to the expiry date. So the reliance that my friend makes on this decision, we say is easily distinguished.
PN502
In respect of the evidence put as to the loss being suffered and whether your Honour should take that into account in discretion, we submit that Mr Bird was not the correct witness to be called, we say that in cross-examination it's clearly shown that he was not aware of the actual details of the loss, or the ability to take the defensive action that - well potential defensive action that could be taken. We submit that a Jones v. Dunkeld inference should be drawn against the applicant in that they have refused to call the branch managers who are stated to be the actual ones who know the direct facts regarding each branch and the loss they are suffering and the action that they can possibly take to mitigate such loss. And no explanation was given by the applicant as to why such witnesses weren't called.
PN503
Without such a reason, we submit, a inference should be drawn against them, that the evidence would not have assisted their case and
that one, they would have been able to take appropriate defensive action, and two, that the loss - there is no reliable evidence
as to loss. So on those bases we say that the action was protected and if it wasn't, the discretion should be exercised against
making a
127 order. If your Honour pleases.
PN504
THE SENIOR DEPUTY PRESIDENT: There has been mention in this case of the employees being sent home.
PN505
MR BORENSTEIN: Yes, your Honour.
PN506
THE SENIOR DEPUTY PRESIDENT: Do you rely on that?
PN507
MR BORENSTEIN: Yes we do, sorry, your Honour. We do rely on the lock-out - the attempted lock-out of the employees, saying that
- we say it's quite clear from the evidence that the applicant has participated in unprotected industrial action where - and where
there is no commitment to actually pay the employees for the time that they were locked out without the protection of the
Workplace Relations Act, therefore there is a breach of the relevant awards and agreements in the payment of wages for that time. As the employees were
ready, willing and able to perform work and they were told to go home without reason.
PN508
So therefore we would submit that would also go against the applicant in the exercise of your Honour's discretion, especially where there is no undertaking by the applicant to pay the relevant employees the time that they were unlawfully locked out. If your Honour pleases.
PN509
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sharard?
PN510
MR SHARARD: I don't really have a lot to add, your Honour, from my previous submissions. In relation to the submission that some
sort of Jones v Dunkel inference should be brought against my client for not calling plant managers to give evidence here. It was
not a situation where ..... It is a situation which
Mr Bird came and, on the basis of the information provided by the plant managers, he gave fairly high level and not particularly
detailed evidence. Judgment had been made that that would suffice for the purposes of these proceedings, which we had hoped would
be expeditious and frankly rolling in half a dozen plant managers didn't seem to us to be an expeditious course and perhaps, Your
Honour, it is our view that the high level evidence given by
Mr Bird would suffice for that purpose.
PN511
In relation to the - what's been referred to as a lock-out of the employees - Mr Bird's given evidence that - perhaps more accurately I should say that it - that we would submit that this could be viewed rather than being a deliberate and calculated act of the company, as being the behaviour of a manager placed perhaps in a very unusual circumstance and is acting in a manner that was not in accordance with the policies of the company, and Mr Bird has indicated that procedures have been put in place to make sure that that doesn't happen again.
PN512
In regard to the issue of paying employees for that period, I think my friend said that there was no commitment given that they would be paid. If I recall correctly I think that Mr Bird's evidence was that he was seeking advice on that issue. And I think your Honour might appreciate that the legalities of that particular situation may not be entirely straight forward.
PN513
THE SENIOR DEPUTY PRESIDENT: Perhaps though the so called lock-out was appropriate defensive action.
PN514
MR SHARARD: I am sorry your Honour?
PN515
THE SENIOR DEPUTY PRESIDENT: The so called lock-out may have been appropriate defensive action.
PN516
MR SHARARD: I don't think that that's the view of the company and it's certainly not my submission, your Honour.
PN517
THE SENIOR DEPUTY PRESIDENT: I will hand down decision in this matter at 1.30.
<SHORT ADJOURNMENT [11.22AM]
<RESUMED [2.20PM]
PN518
THE SENIOR DEPUTY PRESIDENT: I have reached a decision in this matter. In the matter Murray Goulburn Co-Operative Company Limited, Murray Goulburn, seeks that the Commission issue a section 127 order to stop or prevent industrial action by the AMWU, CEPU and the CFMEU and their members employed by Murray Goulburn at Murray Goulburn plants whose work is regulated by the Murray Goulburn Co-Operative Company Limited Reliability Agreement 2002 and/or the Kraft Foods Limited Victorian Country Plants Reliability Enterprise Agreement 2001 to 2003 and/or the Middle Engineering And Associated Industries Award 1998.
PN519
The terms of the section 127 order sought are attached to the application in the matter. The AMWU and the CEPU and also the CFMEU oppose the issuing of such orders. Those unions have issued section 170MO notices which state that officers and employees of the unions and their members - or persons eligible to belong - who are employed by Murray Goulburn intend to organise and engage in industrial action in accordance with provisions applying to protected action set out in the Workplace Relations Act 1996.
PN520
The industrial action, it is said in the notices, will commence at 1 pm on Friday 28 January 2005 and the nature of the industrial action is a ban on working overtime including undertaking call backs, and to rolling stoppages of work, affecting maintenance, metal trades, electrical trades and boiler house operations work at the Rochester, Maffra, Kiewa, Cobram, Leitchville, Leongatha and Koroit sites. The industrial action will continue for a period of six months or until agreement is reached, whichever is the sooner, so the notices say.
PN521
Murray Goulburn submits the Commission should issue the section 127 order it seeks, because in summary one, the industrial action by the unions and the relevant employees is happening or is threatened, impending or probable in relation to the negotiation or proposed negotiation of agreement under Division 2 of Part VIB, or work that is regulated by an award or certified agreement, two, the industrial action is not protected industrial action, because of the lack of specificity in the section 170MO notices with respect to rolling stoppages which prevents Murray Goulburn taking appropriate defensive action, and three, because of the following discretionary considerations which they say favour the granting of the order. Those being the inadequacy of the section 170MO notices of the unions and the unions' ability to issue proper notices, the industrial action is in breach of the relevant employees' contract of employment, the unions are engaged in tortious conduct, there is a real prospect of an agreement being negotiated without resort to industrial action, the industrial action is and will cause loss and damage to the business of Murray Goulburn and third parties and a cooling off period will enable Murray Goulburn to catch up on milk processing and enable more productive negotiations.
PN522
I am satisfied the jurisdictional prerequisites in section 127(1) of the Act are met in this matter. However, it appears to me that the proposed industrial action set out in the section 170MO notices and which is happening and/or is threatened, impending or probable, is protected action. I have come to this view on the authority in respect of the matter of the Full Federal Court in Davids case, and the evidence of Mr Bird for Murray Goulburn.
PN523
That evidence lacked, in my view, sufficient detail for me to conclude Murray Goulburn could not take appropriate defensive action in respect of the industrial action set out in the section 170MO notices.
PN524
When pressed for details under cross-examination about the operation of the individual plants and Murray Goulburn in the current industrial circumstances, Mr Bird was unable to give details.
PN525
Even if I am wrong about the industrial action being protected action, I decline to issue the section 127 order sought in the exercise of my discretion. I decline to exercise my discretion to make the order sought because firstly, the industrial action is plainly intended to be protected action.
PN526
In light of the content of the section 170MO notices served on Murray Goulburn, Murray Goulburn is clearly on notice as to the nature of and timing and sites for the industrial action. That is there is to be bans on working overtime including call backs, and rolling stoppages of work affecting maintenance, metal trades, electrical trades and boiler house operations work at specifically named Murray Goulburn sites from 1 pm on 28 January 2005 for six months or until agreement is reached whichever is the sooner.
PN527
The industrial action terms used are recognised industrial relations terms, as Davids case demonstrates. Secondly, I am not satisfied there is a real prospect of an agreement being negotiated without resort to industrial action or that a section 127 order and a resultant cooling off period, will enable more productive negotiations. In that regard it is worth noting - and I have noted - there has been a considerable period of negotiation without industrial action, and yet agreement was not able to be reached over that period. Thirdly, the evidence indicates the loss and damage to Murray Goulburn to date from the industrial action is miniscule compared to the dollar value of Murray Goulburn's daily product output and there is no detail about the extent of loss and damage to third parties.
PN528
Fourthly, I have had regard to the conduct of Murray Goulburn, it itself has recently sent relevant employees home during working hours and to date has not indicated whether or not it will pay those employees for the period during normal working hours that they were told to go home. In my view, the forgoing considerations outweigh the considerations advanced for making the section 127 order. For those reasons I decline in the exercise of my discretion to issue the section 127 order sought. I now adjourn.
<ADJOURNED INDEFINITELY [2.28PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
IAN CHARLES BIRD, ON FORMER OATH PN139
EXAMINATION-IN-CHIEF BY MR SHARARD, CONTINUING PN139
EXHIBIT #S3 EMAIL TO BRANCH MANAGERS FROM MR BIRD, REGARDING INDUSTRIAL ACTION DATED 2 FEBRUARY 2005. PN151
CROSS-EXAMINATION BY MR ADDISON PN152
CROSS-EXAMINATION BY MR BORENSTEIN PN306
RE-EXAMINATION BY MR SHARARD PN321
THE WITNESS WITHDREW PN333
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