C2005/25, Transcript of Proceedings [2005] AIRCTrans 390 (17 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10391
10388

DEPUTY PRESIDENT MCCARTHY

C2005/25 C2005/1017 C2005/1018 C2005/1019

s.127(2) - appln to stop or prevent industrial action

Total Corrosion Control Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Western Australian Branch
(C2005/25)
Total Corrosion Control P/L South West Projects Certified Agreement 2004-2007

Collex Pty Ltd
and
The Australian Workers' Union
(C2005/1017)
Collex Pty Ltd Western Australian Alumina Refinery Maintenance Agreement 2001-2004

Downer Engineering Power Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/1018)
Downer RML Pty Ltd Maintenance Modification Work Certified Agreement 2004

Jadsco Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/1019)
Jadsco Pty Ltd Maintenance and Modification Work Certified Agreement 2004

PERTH

10.08AM, MONDAY, 07 FEBRUARY 2005

PN1

MR M BORLASE: I seek leave to appear on behalf of Collex Pty Ltd in matter C05/1017 on behalf of Jadsco Pty Ltd in C05/1019 and on behalf of Downer Engineering Power Pty Ltd in C05/1018.

PN2

MR R COLLINSON: I seek leave to appear on behalf of the applicant, Total Corrosion Control.

PN3

MR L EDMONDS: I appear on behalf of the Australian Manufacturing Workers' Union, sir.

PN4

MR G TROTTER: I appear on behalf of the Australian Worker's Union.

PN5

THE DEPUTY PRESIDENT: Yes, thank you. Yes, I've listed all these matters together and one of them I only sent the notification out this morning, that's the one that you're involved in, Mr Collinson, but as they all appear to relate to the same issue, I've joined them for the purposes of hearing and determination. Yes, thank you, Mr Borlase?

PN6

MR BORLASE: Yes, thank you, your Honour. Your Honour, occasionally I might struggle you this morning. The noise from the computer just next to me is generating a reasonable drone and so I was just having a little bit of difficulty hearing you then.

PN7

THE DEPUTY PRESIDENT: Do you want to shift places, Mr Borlase, shift down and sit next to Mr Trotter, if you like, if you're having some difficulty. We wouldn't want to see you at any disadvantage. No, it's not that bad.

PN8

MR BORLASE: No, I'm quite happy here at the moment, I just wanted to allude that I might have to ask you on the odd occasion if I don't hear you, that's all.

PN9

THE DEPUTY PRESIDENT: Yes, OK, I'll speak up so that - I'll ensure that you hear me.

PN10

MR BORLASE: I appreciate that, thank you, your Honour.

PN11

THE DEPUTY PRESIDENT: I should have granted you and Mr Collinson - I don't know if it's necessary for you, Mr Borlase, but leave is granted for you to appear.

PN12

MR COLLINSON: Thank you, sir.

PN13

MR BORLASE: Thank you, your Honour. Your Honour, this is an application pursuant to section 127 of the Act for orders to stop industrial action. We say to you that the requirements in terms of constitutional basis or the jurisdictional basis for you to be able to deal with this matter are all present in that industrial action is happening and it relates to work that is regulated by a certified agreement and the particular certified agreements have been referred to in each of the applications and for reference purposes I'll hand copies of those up to you. Your Honour, you will see from those applications that they are all registered agreements of this Commission. The agreement that relates to Collex Pty Ltd is past its nominal expiry date but is still valid and I'm instructed that there are negotiations in place between Collex Pty Ltd and the AWU to renew the terms and conditions, or to replace the terms and conditions of that particular agreement.

PN14

Your Honour, you will see from each of the applications before you that there is a history to this particular matter in that this is not the first industrial action which has taken place by these employees and the first action taking place on approximately 11 January and that particular matter was dealt with by Senior Deputy President Marsh which resulted in orders being issued in respect of Collex Pty Ltd in that matter and also Downer Engineering Power Pty Ltd. Jadsco at that stage wasn't a party to that particular matter, but I'm instructed that their employees similarly engaged in that particular industrial action.

PN15

Subsequently in respect of Downer - - -

PN16

THE DEPUTY PRESIDENT: Have you got copies of those orders there, or just the reference numbers at least?

PN17

MR BORLASE: Your Honour, the reference number is C2005/1002 relating to Downer Engineering Power Pty Ltd and C2005/1003 with respect to Collex Pty Ltd.

PN18

THE DEPUTY PRESIDENT: Yes, thank you, and how long were those orders for?

PN19

MR BORLASE: Those orders were for a period of one week approximately until 5 pm, 20 January 2005.

PN20

THE DEPUTY PRESIDENT: Yes, thank you.

PN21

MR BORLASE: By way of some background information for you, and this is material which was covered in that particular application, there are currently negotiations taking place for work relating to construction and upgrade work which is to occur at the Worsley Alumina Refinery and the industrial action which is taking place is in part related to that in that there are a range of other companies who are also on strike who are not represented here before you today, but those companies are companies that are engaged or will be engaged directly in that construction work.

PN22

The companies before you today that I represent primarily are involved in just general maintenance work and divorced from that construction work that will be occurring. However the employees of these companies are partaking in industrial action that relates to those particular negotiations. Now, in terms of the previous matter, what became apparent was that the reasons for the industrial action or part of the reasons for the industrial action and part of the reasons for the participation of these employees in that industrial action was a claim for whatever results from any construction agreement to apply at the Worsley site, to also apply to employees of the maintenance contractors and that, by way of explanation, is how these companies became involved in industrial action relating to claims for an agreement that does not apply to them.

PN23

Now, subsequent to that in respect of Downer Engineering Pty Ltd - sorry, I'll just go back a step. At this stage, at the time that the applications were filed, the companies had been unable to establish what the reasons were for this current strike action. They had been unable to establish quite clearly how long the strike action would actually go for and that was - and as it is necessary will be led in evidence - because employees had been instructed not to talk to the companies, not to give them information and also the fact that attempts to contact the unions had been unsuccessful in terms of being able to be given any information as to what the action was about.

PN24

Now, in terms of Downer Engineering Power Pty Ltd, you will see from the application that a further application had been made to the Commission by Downer as a result of them hearing that there had been going to be a further stop work meeting to take place on Tuesday, 25 January of companies and employees to discuss that construction agreement that was being negotiated. Downer made application to the Commission to seek further orders stopping employees from attending that meeting and also obviously stopping the unions from encouraging employees to attend that meeting. That matter was listed before SDP Callaghan, sir, and I apologise, sir, I don't have a reference number here for you today with respect to that.

PN25

In any event - - -

PN26

THE DEPUTY PRESIDENT: When was that?

PN27

MR BORLASE: The matter was listed on Monday, I think it was Monday, 24 January. The outcome though of that was an agreement that was reached that four employees representative of Downer would attend the meeting and the remaining employees would attend work as usual and that particular agreement was honoured. In the lead up to that prior to proceedings started, I was asked by the Union representative, Mr Edmonds, how we knew that a meeting was going to occur and I informed Mr Edmonds that company representatives had had a discussion with Mr Tony Lovett who is an organiser with the Automotive Food Metals Engineering Printing and Kindred Industries Union, and that Mr Lovett had informed the company that there would be a meeting taking place.

PN28

In response Mr Edmonds informed me that he would have to tell Mr Lovett in future not to - - -

PN29

MR EDMONDS: Hang on, sir, this is - it isn't appropriate, sir, to be putting an off the cuff exchange at the bar table into submissions or into evidence, sir, that's not appropriate. It's certainly not appropriate in these circumstances.

PN30

THE DEPUTY PRESIDENT: Yes, Mr Borlase, what's your - - -

PN31

MR BORLASE: Sir, normally I would probably agree. However in these particular circumstances the reason I raise it is because the company had not been informed of the meeting and there is an approach that has been used by the Union to not announce the meetings and we believe a signal system, having been established, of the Union's parking a vehicle on the access road into Worsley with Union flags flying from it, and that being a signal that the Union has organised a meeting to take place. Now, normally there would be some form of communication that would occur from the Union to the company indicating that there had been going to be a meeting occur and, on past record, the unions have come before the Commission in these particular matters denying that they had anything to do with the organising of the meeting or anything of that nature.

PN32

Now, our particular position is that the unions have organised this meeting and that they've organised it through a process of signalling to employees by way of parking a vehicle with their union flags before the car parks, and that being the cry to union members to attend a meeting, and in support of that - - -

PN33

THE DEPUTY PRESIDENT: Well, Mr Borlase, that's not the issue that Mr Edmonds is complaining about. What he's complaining about is conversations at the bar table prior to these proceedings taking place, then being sought to be introduced as submissions during the proceedings, a view, I've got to say, I have some sympathy for. So if you can just address your issues and if you wish to present evidence or put yourself in the box and present evidence, then that is the way to introduce that type of conversation.

PN34

MR BORLASE: Yes, I understand that to be the method. It's simply a question in terms of whether the union is going to deny that - - -

PN35

THE DEPUTY PRESIDENT: Well, it may well do, but in any event, even if there were comments made, the natural banter of those types of exchanges, I don't know that one can place much weight on them in any event, so if you'd just proceed.

PN36

MR BORLASE: I appreciate the view that you express there, your Honour. The reason I raised it was to establish - - -

PN37

THE DEPUTY PRESIDENT: Well, you had the opportunity to respond to the reason you raised it and you've expanded on a whole range of other issues, so if you can just proceed without making reference to that exchange that took place.

PN38

MR BORLASE: Yes, your Honour. Yes, following that particular application before the Commission there was that agreement that was reached. Subsequent to that on Friday, 4 February there was a meeting of employees which took place which was presided over by, we say, the AMWU and Mr Tony Lovett, and also in attendance we say that there was officers of the Construction Forestry Mining and Energy Workers' Union, being Mr Joe McDonald, who we believe attended that meeting.

PN39

As a consequence of that meeting, employees did not return to work and attempts by the applicant companies to establish what the reasons were for the meeting, and what the reasons for the industrial action were and what the time period of the industrial action would be has met with very limited success and consequently application was made to the Commission to seek orders for a return to work and further you'll see that the application and the orders sought are to last until 1 April 2005, being a period which we believe, if we are correct in the assumption, that the industrial action is linked to the negotiations about the construction agreement is a period of time that we think would be reasonable for those negotiations to draw to a close and remove any necessity for these employees to participate in any industrial action relating to that agreement.

PN40

THE DEPUTY PRESIDENT: When did the construction work commence?

PN41

MR BORLASE: I don't know whether it has commenced. I'm not involved in that aspect of things, your Honour, and, yes, so I can't inform you of that. I might be able to just find out quickly for you.

PN42

THE DEPUTY PRESIDENT: Well, not now but perhaps if you could inform me later or one of the others might be able to inform me.

PN43

MR BORLASE: Yes, your Honour. Your Honour, I'll call Mr Bernie Thorn to give evidence in respect of this matter.

PN44

THE DEPUTY PRESIDENT: Well, just a moment I may wish to hear from - in fact, I do wish to hear from the others before any evidence.

PN45

MR BORLASE: Yes, your Honour.

PN46

THE DEPUTY PRESIDENT: Mr Collinson, do you have anything to put at this point?

PN47

MR COLLINSON: Yes, your Honour. The situation from the applicant's point of view whom I represent, in my submission, is somewhat clearer, sir. There's an in term EBA with a very comprehensive - - -

PN48

THE DEPUTY PRESIDENT: There's a what, sorry?

PN49

MR COLLINSON: And in term enterprise agreement and that enterprise agreement has an expiry date of March 2007 and I will make copies available to you, sir, just the short notice of the hearing I wasn't able to do so, but just to briefly outline the situation, that enterprise agreement contains a very comprehensive no extra claims commitment clause which makes it clear, which will be my submission, that the agreement intends to cover the field and that there are to be no further claims during the life of the agreement. The evidence that we have, sir, is also along the lines that the purpose of the industrial action is to bargain better rates of pay which are prescribed for in the agreement and in our submission that is a clear breach of section 170MN, prohibited action.

PN50

On 11 January SDP Marsh issued an order against relevant employees for industrial action to cease and that order was for a period of one week. So there can be little argument that the jurisdiction requirement has been met. It's simply a matter, in my submission, of exercising your discretion and to that end, sir, my submission is that that can be largely dealt with by way of submission. However, sir, before I do so, Mr Edmonds has raised an issue that appears that the application hasn't been served on the respondent and I would, at this stage, sir, seek leave to withdraw from the bar table to endeavour to have that application served and also to have the applicant's representatives to be made available. Given the short notice of the listing the applicant didn't find out until about a quarter to 10 and they're currently in Kwinana, so they'd need to drive up to the Commission if need be.

PN51

THE DEPUTY PRESIDENT: The order that you're seeking, is that materially different from the one that Mr Borlase is seeking? Have you had a chance to examine that?

PN52

MR COLLINSON: No, sir, I haven't had an opportunity to consider the other applicants' orders nor obtain instructions. The application was filed late Friday afternoon and I was in the process of attending to that this morning when we received the notice of listing.

PN53

THE DEPUTY PRESIDENT: So you haven't, with that application, attached a draft order by the look of it?

PN54

MR COLLINSON: No, sir. What I would seek to do, though, sir, if you grant me leave to withdraw from the bar table for a moment, is to endeavour to see that the application is properly served and secondly to submit draft orders to the Commission.

PN55

THE DEPUTY PRESIDENT: Yes, I'll just hear from Mr Edmonds.

PN56

MR EDMONDS: Yes, thank you, sir. In relation to the application by TCC, sir, I don't actually have a copy of that application, sir, so I can't actually comment on the contents of it, sir, and I have not seen that proposed draft order for that particular matter, sir. I suppose, sir, all I can say at this time is that I'm aware that the workers are on strike at Worsley, sir. That's probably about all I can say about it at this present time, sir.

PN57

THE DEPUTY PRESIDENT: Are employees of Downer, Collex and Jadsco taking industrial action?

PN58

MR EDMONDS: I'm not sure about Collex, sir. We don't have any members at Collex there, sir, that's the AWU.

PN59

THE DEPUTY PRESIDENT: Sorry, yes.

PN60

MR EDMONDS: But - - -

PN61

THE DEPUTY PRESIDENT: And which leaves Total Corrosion Control are taking industrial action?

PN62

MR EDMONDS: It's my understanding, sir, that there is strike action occurring, sir. I would say, sir, that I note the applications themselves seek to bind individual workers to the orders, sir, and I have not been advised yet as to whether those individual workers have actually been served with copies of the application, sir, as required by the rules of the Industrial Relations Act. But that's all I've got to say at this point, for the moment, sir.

PN63

THE DEPUTY PRESIDENT: And with these agreements, at least the Downer and the Jadsco ones, they were only certified in September, is that right?

PN64

MR EDMONDS: I believe that's correct, sir.

PN65

THE DEPUTY PRESIDENT: Yes. There's no question they apply to these employees and presumably the TCC one does as well, yes.

PN66

MR EDMONDS: I haven't seen a copy of the TCC application, sir, and was unable to find a copy of it this morning, sir, but it would appear to apply, sir.

PN67

THE DEPUTY PRESIDENT: And there's been no notices of bargaining periods with respect to these employees with these companies or notices of industrial action?

PN68

MR EDMONDS: I don't think so, sir, no. Having said that, sir, if there is an in term certified agreement I don't think it has the capacity to initiate a fresh bargaining period to protected action, sir.

PN69

THE DEPUTY PRESIDENT: Well, I was just raising a question in case you were going to assert that these agreements don't apply to the work in question, in any event.

PN70

MR EDMONDS: Sir, I would have to take some further instructions on that particular issue, sir. As you can appreciate these applications rolled in late on Friday afternoon and this matter has come to me early on Monday morning, sir.

PN71

THE DEPUTY PRESIDENT: You've had all weekend.

PN72

MR EDMONDS: Yes, sir. I was going to come in on the weekend, sir, but unfortunately I was unable to, but if I can say, sir, at this point in time I'm not asserting that that's the case but there has been no notices of bargaining and no notices of protected action in any event, sir.

PN73

THE DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Trotter?

PN74

MR TROTTER: Thank you, sir. We're in the same situation. We've just got the orders very late, actually in fact I did get them on Sunday and I couldn't contact any of our delegates to find out what had actually happened, and in fact had they been served on to them. The little bit of information that I have been able to glean, there were none of our organisers at the meeting on Friday and that we were not involved in the employees taking any action, and we're not even actually sure if our members were out in support of this action at all.

PN75

THE DEPUTY PRESIDENT: You do have coverage of those employees?

PN76

MR TROTTER: At the Collex pit, yes.

PN77

THE DEPUTY PRESIDENT: And there are members employed by Collex.

PN78

MR TROTTER: Yes, and we're in the process of re-negotiating an enterprise bargaining agreement with management at this stage.

PN79

THE DEPUTY PRESIDENT: You served notices in that regard?

PN80

MR TROTTER: On the negotiations?

PN81

THE DEPUTY PRESIDENT: Yes, have you served bargaining periods?

PN82

MR TROTTER: Bargaining - I believe that's been done, sir, yes - and it hasn't been done, I've just been informed.

PN83

THE DEPUTY PRESIDENT: Hasn't been?

PN84

MR TROTTER: No.

PN85

THE DEPUTY PRESIDENT: So the terms of the agreement has expired, has it?

PN86

MR TROTTER: Yes.

PN87

THE DEPUTY PRESIDENT: Yes, and what did you say again with respect to whether there was industrial action occurring by these employees?

PN88

MR TROTTER: Well, we're not sure if our members have actually gone out, sir. There's no organisers at the meeting that took place, or allegedly took place on Friday 4, and so we're unsure what's been happening. It's only from what's been gleaned at the bench here that we've been hearing that a process has been taking place.

PN89

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Trotter. Mr Borlese, do you have any comment with respect to Collex?

PN90

MR BORLASE: I have been instructed that the employees are in fact out on strike and I have Mr Greg Cherry who is the site manager here who is prepared to give evidence in respect to that particular matter and I have also been instructed that there's been no bargaining period which has been initiated by the union in respect of any negotiations. I am instructed that the company is in negotiations over a series of replacement agreements to apply to all its operations and there were negotiations relating to employees that are engaged to perform work, not only at Worsley for maintenance purposes, but also at Alcoa Refinery, the intention being that there would be the one agreement that would apply to those particular sites, as I'm instructed.

PN91

I have been instructed also that the view is that those negotiations are fairly close to finalisation and I believe that the union organiser who the company has been dealing with is Mr Norm Dix, although I've been informed that he flew to Queensland over the weekend relating to other union activities. The other thing which I'm instructed as to is that the contracts that Collex had in place with Worsley Alumina relate purely to maintenance work and do not relate and will not relate to the construction program which is planned at that particular site.

PN92

THE DEPUTY PRESIDENT: Thank you, Mr Borlese. I'll adjourn until 11 o'clock. That will provide you, Mr Trotter, to have the opportunity to contact any of your colleagues if you with to dispute if there is occurring any industrial action with respect to Collex and, Mr Collinson, then any instructions or service can occur during that time. I'll adjourn until 11 o'clock.

<SHORT ADJOURNMENT [10.37AM]
<RESUMED [11.06AM]

PN93

THE DEPUTY PRESIDENT: Mr Trotter, have you had a chance to talk to anyone?

PN94

MR TROTTER: Yes, I was able to contact Mr Dix and discuss the issue with him and he confirmed that those of our members that were on shift that morning did participate in the action that was there.

PN95

THE DEPUTY PRESIDENT: Are currently participating in any industrial action?

PN96

MR TROTTER: I believe they have been caught up in it, yes, sir.

PN97

THE DEPUTY PRESIDENT: Yes, thank you.

PN98

MR TROTTER: And the same with the people that were meant to be on shifts that consequently followed that, they've been caught up in it as well.

PN99

THE DEPUTY PRESIDENT: Yes, thank you. Mr Collinson, have you fulfilled your requirements?

PN100

MR COLLINSON: Yes, sir, I've caused a copy of the application to be faxed to the National and State Secretary. I've also handed a copy to Mr Edmonds, and I have contacted Mr Darren Ianello on behalf of the applicant and he's on his way here as we speak.

PN101

THE DEPUTY PRESIDENT: Yes.

PN102

MR COLLINSON: I've also drafted a proposed order.

PN103

THE DEPUTY PRESIDENT: Yes. Mr Edmonds, do you have any further comments about service or any of those issues?

PN104

MR EDMONDS: Yes, sir, as with the applications of Downer and Jadsco, sir, the application by TCC has been partially served, sir, in that it has been served on the union, sir, but it hasn't been served on the employees against whom an order is sought, so I suppose, sir, if the Commission is inclined to issue an order, then I can make some further comment at that point, sir, and I wonder if it's possible to do so at that particular time. I don't suppose the persons concerned - the Commission has to be satisfied that there are grounds for issuing an order once the Commission is so satisfied, sir, then I can make some comments as to the contents of that order and against whom that order should be issued.

PN105

THE DEPUTY PRESIDENT: Well, at this juncture it appears to me and I'm satisfied that the jurisdictional requirements have been met. It's a question of whether the order should issue and the service issues are interrelated with that with respect to TCC, Mr Edmonds. So Mr Borlese and Mr Collinson, I'm satisfied that the jurisdictional requirements have been met. Is it necessary for you to provide evidence or do you wish to address me on any issues of whether that discretion should be exercised by the issuance of orders?

PN106

MR BORLASE: Yes, thank you, your Honour, there's a couple of points. Firstly one is an administrative point by myself, an error that I made in terms of the Jadsco application being C051019, in that there are a couple of references to Downer Engineering and Power wherein that application and draft order that is sought in that matter, any reference to Downer Engineering and Power should have actually read Jadsco Pty Ltd, so from that perspective - - -

PN107

THE DEPUTY PRESIDENT: Leaving aside those issues, and also draft orders there, what I was providing you with was an opportunity to do is to convince me as to why order should issue and on the presumption from what Mr Edmonds said that he may well try and convince me that they should not issue.

PN108

MR BORLASE: Yes, your Honour. Your Honour, in terms of the issue of merit, in terms of whether or not you should issue orders, both the Jadsco agreement and the Downer agreement are agreements which were certified relatively recently, the Jadsco agreement, 14 September 2004, and the Downer agreement on 7 September 2004. Both agreements we say apply to the work which has been performed by these employees and will be performed in the future and from that perspective it's quite clear that there is no basis for employees to be engaged in industrial action.

PN109

The action is a clear contravention of the no extra claims clauses contained within those agreements in terms of the Jadsco agreement being found at clause 15, and the Downer agreement being found at clause 14. Further, as indicated, there's been no communication between employees or the union, nor attempts to have direct discussions with the companies to say exactly what it is that they're after. Their behaviour has been such that there's been no attempts to resolve the matters with those companies in accordance with dispute resolution procedures which are contained in both of those agreements.

PN110

To that end and to support that I will call evidence from Mr Bernie Thorn to establish the attempts that have been met to communicate with the employees and the responses that they have met.

PN111

THE DEPUTY PRESIDENT: Yes. Before you do, Mr Collinson, do you have anything that you want to add at this point?

PN112

MR COLLINSON: Sir, I would - the Commission clearly has a discretion to inform itself as it sees fit, section 211 of the Workplace Relations Act makes it quite clear that you have that power, and in my submission, sir, it would be appropriate in this matter for you to make orders based on the application which speaks for itself and the submissions from the bar table without the need to entertain oral evidence to be satisfied that it's appropriate to exercise your discretion.

PN113

The relevant discretionary factors in this case, sir, is that you have the nature and extent of industrial action where there is a pattern of industrial action, that is precipitated by no real warning on the part of the work force or no attempt to resolve any real or putative issue, the most significant factor is that you have an in term certified agreement which, sir - perhaps I could hand that up for you to have a look at the relevant clauses. I apologise, I've annotated this document. Sir, the relevant clauses are the term of the agreement being March 2007, a fairly recent agreement; clause 11, the dispute settlement procedure.

PN114

THE DEPUTY PRESIDENT: Yes.

PN115

MR COLLINSON: There's been no attempt to utilise that clause on any occasion. Clause 17, a no extra claims clause.

PN116

THE DEPUTY PRESIDENT: Yes.

PN117

MR COLLINSON: Sir, that's quite clear that any industrial action taken in pursuance of bargaining better rates of pay are clearly in breach of that agreement. There's been no conduct on the part of the employer that would be disentitling and the effect of industrial action on the employer is quite clearly negative. There are no counterbalancing factors that would indicate there would be any detrimental effect on the employees by not being able to pursue a legitimate interest were an order made. In my submission, sir, paragraph 15 of the application really just builds upon the orders that were previously granted by SDP Marsh in that it gives the most recent update on this industrial action. Do you have that application before you, sir?

PN118

THE DEPUTY PRESIDENT: The orders you mean?

PN119

MR COLLINSON: No, the application for the - - -

PN120

THE DEPUTY PRESIDENT: Yes, I do, yes.

PN121

MR COLLINSON: It would be my submission, sir, that it is not necessary at this stage for you to resolve complex issues of fact or whether there is a dispute as to the facts. In my submission, sir, there is nothing that Mr Edmonds has put to you by way of submission that would militate against exercising your discretion and therefore be unnecessary to delve into the minutiae of the factual background. The point is that on the application which stands by itself, there are enough factors to indicate that it would be appropriate to issue a 127. The term of the order last time was for a period of one week and that was against the employees only. That was on the basis that SDP Marsh wasn't satisfied there was sufficient union involvement.

PN122

Paragraph 15 of this application provides some grounds to suggest that there has been the requisite union involvement. The draft order that I would seek, sir, is being brought over. I attempted to dictate in the 15 minute adjournment, but essentially, sir, we'd be seeking an order in similar terms to that that is sought by the other applicant as to the duration of the order and we have a separate schedule listing those employees concerned.

PN123

THE DEPUTY PRESIDENT: Yes, thank you. Mr Edmonds, do you have anything to say at this point?

PN124

MR EDMONDS: Yes, sir, thank you, sir. I suppose the situation we're in at the moment, sir, is that industrial action is occurring, sir. There is a current certified agreement in place, sir. We dispute the reasons for that industrial action, sir, but I don't really think it's worth going into at this point in time, sir. We certainly don't agree that industrial action has been taken to enforce or, if I can say, sir, we don't concede the industrial action has been taken in order to make headway with the negotiations with Worsley on the construction agreement, sir, but aside from that, sir, I've got nothing further to say at this point, sir.

PN125

THE DEPUTY PRESIDENT: With respect to should an order issue, the term of any order, do you have any comment on that?

PN126

MR EDMONDS: Well, I haven't seen a draft order for TCC, sir, as you can appreciate. It's on its way over. I understand the length of order that's being sought by Jadsco and by Downer, sir, is some three months, if that's correct.

PN127

THE DEPUTY PRESIDENT: Till 1 April.

PN128

MR EDMONDS: Or some two months, yes. We'd certainly say, sir, that that length of time is extraordinarily long and I suppose in the circumstance with my friend's orders, sir, only went for one week and those previous orders were complied with, sir. I'm a bit confused as to the length of time that Downers are seeking the order for, sir, because it says until 20 January and I know that wasn't Mr Borlese's intention. I presume that's 1 April, as well. Sir, we'd say that a two month order is too long in the circumstances, sir. The previous orders were complied with. Sir, we'd say that if an order is inclined to issue, it should only be for a matter of a week or perhaps two weeks, sir. It shouldn't be for a month. Would you like me to address you on the other issues in respect to any proposed order, sir?

PN129

THE DEPUTY PRESIDENT: Yes.

PN130

MR EDMONDS: I reserve my position with respect to TCC, sir, because obviously I haven't seen a proposed order. With respect to - - -

PN131

THE DEPUTY PRESIDENT: I think you can presume it's in similar - if not identical terms, to the order that Mr Borlese is seeking.

PN132

MR EDMONDS: Yes, sir, well, with respect to Jadsco and Downer, sir, there are some issues, sir, that I think need to be addressed. There is some timing issues, certain things that needed to be complied with by 6 February, which was of course yesterday, sir, and by 9 o'clock this morning, sir, which is of course already past. So we say, sir, in those circumstances those times would need to be fixed up. In the first instance, sir, we'd say that any order should not bind individual workers simply because the application has not been served on those individual workers. They haven't had an opportunity to be heard. It's a standard argument, sir, and I put it in front of you a number of times, sir. My argument doesn't change, sir.

PN133

Just in the interests of procedural fairness, if the employer wishes to seek orders against individual workers the rules of the Commission provide that that application and the notice of listing should be served on those individual workers. That hasn't occurred in this case. If orders are to issue they should only be limited to the union itself. Further, sir, we'd say that at part 3H of the Jadsco application, I believe it to be 3H of the Downer application as well, sir, Mr Borlese is seeking an order that the AMWU courier a letter to each member of the AMWU advising them that they must not engage in conduct which in any way impedes the company from conducting its business. We'd say that that's unnecessary, sir.

PN134

I understand there's a meeting scheduled for 9 o'clock tomorrow morning, sir. It's not necessary for us to courier a letter to each individual worker in order to instruct the workers of their need to comply with the orders, if such orders are going to issue. In those circumstances, sir, we'd say that the AMW should be instructed to advise its members of the need to comply with the orders at the meeting to take place at 9 o'clock tomorrow morning. To have to courier a letter, sir, is unnecessary, bureaucratic and unnecessarily expensive in circumstances where what the company is trying to obtain is a return to work, sir, and they're certainly not trying to obtain a bureaucratic backlog, I suppose, on the AMWU, sir, and we simply wouldn't have the resources to courier a letter by close of business today to each individual worker.

PN135

So in those circumstances, sir, we'd say that that particular part of the proposed order is unnecessary. The need to comply can be put to those workers by 9 o'clock tomorrow morning or can be put to those workers at 9 o'clock tomorrow morning, sir, if such an order does issue, sir, but otherwise, sir, we'd say that I don't think we've got anything else to say in relation to those proposed orders, sir.

PN136

THE DEPUTY PRESIDENT: Thank you. Mr Trotter?

PN137

MR TROTTER: Yes, thank you, sir. In terms of the order E, F, G of that which is indicated that union has been involved in and its representatives have been involved in this action, and we clearly deny that, we've had the meeting, so we can't be held responsible for that. It was a decision made by those workers at the time - - -

PN138

THE DEPUTY PRESIDENT: The delegate's at the meetings, though.

PN139

MR TROTTER: Yes, that's right. They made that decision at the time. In terms of the issuing of the orders, and that would be the same with H, we think it's totally unnecessary for us to actually send orders out to individuals and that by courier. It's time consuming and if the senior members of our union are not in this State, they're over in Queensland for a week, and we'd find it very difficult to get appropriate letters signed in that time, and we think the time frame of two months is absolutely too long for any orders to be put forward. As we said earlier, we are in the process of negotiations with the company and that we will be putting a bargaining period in today for that and any orders that come, we don't think that they should be of any longer duration than probably the first orders that put out in the week. Thank you.

PN140

THE DEPUTY PRESIDENT: Yes. I've decided I will issue orders with respect to each of these matters. Those orders will be made available later this afternoon. I'll take into account the comments in respect to the content of those orders that have been made. With respect to service of the applications I waive the requirements for service with respect to any non compliance with the strict application of the rules of the Commission in all respects, in all applications. The order will issue for a term of one month and there'll be capacity for liberty for parties to the order to seek revocation, extension or variation of those orders. They'll be made available as soon as I can organise the issuance of them. These matters are adjourned.

<ADJOURNED INDEFINITELY [11.26AM]