C2006/3122, Transcript of Proceedings [2006] AIRCTrans 1133 (9 October 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15833-1

DEPUTY PRESIDENT IVES

C2006/3122

SIEMENS LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.496(1) - Appl'n for order against industrial action (federal system).
(C2006/3122)

MELBOURNE

10.02AM, WEDNESDAY, 27 SEPTEMBER 2006

Continued from 26/9/2006

THE DEPUTY PRESIDENT: Yes, there appears to be some changes to the appearances?

MR P LARKINS: Yes, thank you, your Honour, I appear for the ETU.

MR J WIELADEK: Thank you, your Honour, I appear for the AMWU.

THE DEPUTY PRESIDENT: Mr Skene?

MR H SKENE: Thank you, your Honour. Since before yesterday I can indicate the parties have had some discussions and have reached a position where the evidence of Mr Messenger in the second statement handed up yesterday essentially won't be contested although the unions don't make concessions about certain parts of that particularly in relation to the aspect of the evidence that's subject to ..... in the court and I think Mr Maddison intends to say something about that. But I think that puts us in a position where we can essentially proceed on the same basis as we did when we were before you in August; and that is to satisfy you initially to assess whether or not you're satisfied initially that industrial action is probable.

THE DEPUTY PRESIDENT: Yes. Well, I have some questions for Mr Messenger if the union's don't, so presumably you're going to call him.

MR SKENE: Yes, that's right. Mr Messenger is here and can be called to prove his statement, so we can proceed to do that. I should say that in the event that your Honour were satisfied, based on that material - perhaps I can make some submissions about that after Mr Messenger's evidence - but in the event that your Honour were satisfied that industrial action was probable the parties have reached agreement about the terms of the order that they think is appropriate in the circumstances and we seek to address you as well on that.

THE DEPUTY PRESIDENT: Yes. Is that in respect of duration alone?

MR SKENE: Yes, your Honour, essentially where we have got to is that the parties have reached a position where, if your Honour is minded to make an order, that we would say it's appropriate that an order be made for a further five weeks from the expiry of the order that's currently in place so that takes us to 7 November and we would seek that an order be made otherwise in the same terms.

THE DEPUTY PRESIDENT: Yes, all right. Thanks, Mr Skene.

MR SKENE: So I call Jeffery Robert Messenger.

<JEFFREY ROBERT MESSENGER, SWORN [10.05AM]
<EXAMINATION-IN-CHIEF BY MR FOLLETT [10.06AM]

MR FOLLETT: Mr Messenger, could you state your full name and work address for the record, please?---Jeffrey Robert Messenger, 147 Cherry Lane, Laverton North.

Have you prepared a statement for the purposes of these proceedings, Mr Messenger?---I have.

Do you have a copy of that with you?---Yes, I do.

Have you read that recently?---Yes, I have.

Is it a statement running to some ten pages with three attachments?---Yes.

Is that statement true and correct in every particular?---It is.

Can I just take you to paragraphs 7 and 8 of that statement.

THE DEPUTY PRESIDENT: Mr Follett, you say there are three attachments to the statement?

MR FOLLETT: Yes, your Honour.

THE DEPUTY PRESIDENT: They don't appear to be to the statement that I have.

MR FOLLETT: There's one large attachment, your Honour, JRM-1.

THE DEPUTY PRESIDENT: It is JRM-1, that was the evidence that was in a prior proceeding and the order to proceed.

MR FOLLETT: Yes. And there's a separate stapled attachment to that.

THE DEPUTY PRESIDENT: I see. I do have it, yes.

MR FOLLETT: Which runs for one page and then JRM-3 at the back of that.

**** JEFFREY ROBERT MESSENGER XN MR FOLLETT

THE DEPUTY PRESIDENT: The problem was the attachments weren't attached but I have them, thank you.

MR FOLLETT: Yes. I might tender that statement, your Honour.

THE DEPUTY PRESIDENT: I might have missed it but I take it that Mr Messenger attested to its accuracy?

MR FOLLETT: Yes.

EXHIBIT #SIEMENS 1 STATEMENT ATTACHED TO JRM-1

MR FOLLETT: Can I just take you to paragraphs 7 and 8, Mr Messenger, and there you set out - attachment JRM-1 is the first statement from the August proceedings?---Yes.

And you say in paragraph 8 that you repeat the substance of that statement for the purposes of these proceedings, is that correct?---That's correct.

Yes, thank you, no further questions, your Honour.

THE DEPUTY PRESIDENT: Yes, thank you.

Mr Messenger, you allude to three separate occasions when you say industrial action has taken place in the period subsequent to the issue of the last order; is that correct?---That's correct, your Honour.

The first occasion, can you just refresh my memory - the first occasion you say industrial action occurred?---The first occasion happened on 22 and 23 August and related to contract resources which were to do some painting on the turbines.

Yes. And you say that there was an industrial action. You have that on advice from whom?

MR SKENE: Your Honour, I don't know that Mr Messenger can reveal the contents of the advice, or he should be at least aware that the contents of any advice is legally and professional privileged.

THE DEPUTY PRESIDENT: I wasn't speaking of any legal advice, Mr Skene. I'm talking about his advice that there was in fact industrial action on the day.

**** JEFFREY ROBERT MESSENGER XN MR FOLLETT

MR SKENE: Indeed, your Honour.

THE WITNESS: From the contract resources, from the guy that was the site manager of contract resources.

THE DEPUTY PRESIDENT: So you were told that there was industrial action by him?---That's correct

You have no first-hand knowledge of it being industrial action?---I'd subsequently spoken to Peter Castles, the delegate on site and to Frank O'Grady, the site organiser for the CFMEU, about the actual incident.

If I understand you, you say that the employees at the time refused to carry out certain works?---That's correct.

What's your understanding of the employer's reaction to that refusal?---They weren't very happy about it. They subsequently - - -

Whether they were happy or not is really not to the point. What did they do?
---They spoke to me about it and then they subsequently managed to arrange other alternate work for them by a - - -

But they essentially accepted the refusal to work, is that correct?---That's correct.

And accepted that alternative work should be carried out in the circumstances?
---While they prepared to make sure that the initial work was carried out.

So there was no stoppage of any employees' pay for the period?---I'm not aware of it. They're not my employees - well, not Siemens' employees.

So if there was an acceptance that certain work shouldn't be carried out and there was acceptance that alternative work should be carried out, and there was no stoppage of pay, and I accept that you're not aware of that, then how do you say it's industrial action?---Because the work that was required to be carried out was delayed.

Yes, but with the apparent acceptance and approval of the employer concerned?
---Well, I can't - I don't know.

**** JEFFREY ROBERT MESSENGER XN MR FOLLETT

You don't know. Thank you. And if I take you to the second circumstance could you again enlighten me as to what happened there?---We were going to get some work done in the transformer which required some scaffolding. It had to be done under a permit to work and that work was actually stopped by the CFMEU steward.

What was the reaction of that employer, as far as you're aware?---I haven't spoken to the employer of the scaffolders.

How do you know about the work being stopped?---I was informed by David Hails who is the Siemens permit-to-work officer.

He told you that there was industrial action occurring?---He told me that there was - a stoppage was occurring and work had been delayed, yes.

What, as far as you're aware, happened with the workforce that was supposed to do that work?---My understanding was that they stood around until work was allowed to progress.

That's your understanding so that's hearsay in essence, is it?---That's correct.

And to your knowledge, were those employees paid for that period of time?---I do not know.

You don't know. So the basis upon which you say that that was industrial action is again a similar basis to what you have previously said, and that is that the work that was supposed to be done didn't get done at that time?---That's correct.

You're unable to say whether that was with the approval or otherwise of the employer concerned?---Yes, that's correct.

Yes, it's correct that you're unable to say that?---Yes, your Honour.

All right. And the third occasion, Mr Messenger?---Yes. That related to some work being carried out on some concreting work that was stopped by - well, discussion happened between Mr Castles and Vaughan employees in regards to doing some concreting work where they wanted a different classification to perform the work.

**** JEFFREY ROBERT MESSENGER XN MR FOLLETT

Okay. That was the one I think I read where you say that the union delegate stopped the work on the basis that there was a carpenter, as I recall, doing the work?---Yes, your Honour.

And that the union delegate concerned wanted it to be a labourer and until that was - he allowed the work to continue for a period of time, is that correct?
---That's correct.

Yes. Then what happened?---They wanted the work to continue with a labourer and the pours that were done that day were completed and the requested demand was that a labourer do the work the next day and then they were going to continue doing more pours.

What happened then?---The company, Vaughan, who were doing the work notified me and subsequently we have a report in there of the incident. I had spoken to Mr Castles or Mr O'Grady. They said there's a -the story was mixed up. The work did continue on the following morning.

It did?---Yes.

With a labourer or with the carpenter?---With the carpenter and a labourer.

So it would seem that in the circumstances that there was a demand for something from the union. What you heard was the case is right and that there was, at least to some degree, some acceding to that demand, is that correct?---I think that they used the two people the next day because they were available and I don't know whether it actually weakened the process.

So where was the industrial action there, Mr Messenger?---The threat against Vaughans and the carpenter from doing the work.

The threat was the industrial action?---Yes.

But you don't know that there was any actual stoppage of work at that point in time or in fact you say there wasn't any actual stoppage of work?---That's correct.

At that point in time. And they're the sum total of the occasions in which you say there was industrial action?---They're the ones that I'm aware of, yes.

**** JEFFREY ROBERT MESSENGER XN MR FOLLETT

In respect of none of those have you advice that this action, to the extent that it occurred, occurred without the approval of the employer?---Well, the third one didn't occur with the approval of the employer, Vaughans.

I'm a bit at a loss as to what the actual industrial action there was. You have just said it was a threat of industrial action, not industrial action per se?---Because no actual stoppage took place, yes, correct.

So I mean, presumably it could be characterised as a threat; presumably it could be characterised otherwise as a demand perhaps; and again presumably it would have been open to the employer to either accede to that demand or to reject that demand?---Yes.

Yes. And it would appear in the circumstances that at least to some degree there may have been some acceding to that demand?---Yes.

And if there had been a rejection of that demand, well, we would be speculating as to what might have occurred, wouldn't we?---That's correct, yes.

So you had no discussion with the employees or employers concerned at the actual time of this. You were told of these events afterwards by either the employer or the - I think you said the safety permit officer or something?---I was told of the action with Vaughans while it was actually occurring.

All right, thank you. And there is nothing further?---No, your Honour.

No. All right, thank you. That's all the questions that I have.

MR FOLLETT: If I might, your Honour.

THE DEPUTY PRESIDENT: Mr Davey, is there anything that you want to ask?

MR DAVEY: I have no questions of the witness, your Honour.

THE DEPUTY PRESIDENT: Thank you. And I assume you don't wish to ask any questions?

MR MADDISON: No, we don't, your Honour. You have done a fine job on our behalf.

**** JEFFREY ROBERT MESSENGER XN MR FOLLETT

THE DEPUTY PRESIDENT: Thank you. Mr Follett?

MR FOLLETT: Thank you, your Honour.

<RE-EXAMINATION BY MR FOLLETT [10.18AM]

MR FOLLETT: I just have three questions for you, Mr Messenger, and it's a similar question in relation to each incident. We'll take the first one first, the Contract Resources incident. What expectations - I withdraw that. To your understanding, what expectations did the employer, Contract Resources, have of its employees to be performing the relevant work on that day that it was interfered with?---Well, they expected them to carry out the work as of the start of it.

Yes. And can I ask you the same question with respect to the scaffolding ..... EG Hire?---That work was expected to carry out in the morning.

And the same question with respect to Vaughan Constructions?---Yes. Yes. They expected the work to be carried out.

Yes, thank you. Nothing further, your Honour.

THE DEPUTY PRESIDENT: Thank you. If there's nothing further, Mr Messenger, you can stand down. Thank you for your evidence?---Thank you.

<THE WITNESS WITHDREW [10.19AM]

THE DEPUTY PRESIDENT: Yes, go ahead, Mr Skene.

MR SKENE: Thank you, your Honour. Perhaps if I could just start by asking have you had an opportunity to review the outline of - - -

THE DEPUTY PRESIDENT: Yes, I have, Mr Skene.

MR SKENE: Your Honour, as you will have gathered from the outline, what is sought here is a further order to the order that was made by you on 18 August 2006. We set out the basis upon which that order is sought in paragraph 9 of the outline, so there are a range of things that we say should convince you that further industrial action on this project is probable. At the first dot point there is the evidence in the previous proceedings that were before you and that has been repeated before you by Mr Messenger today.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: There we have some 21 instances of industrial action - - -

THE COMMISSIONER: I think that I need to say, Mr Skene, that that in and of itself is not going to be enough. I know you're not putting it forward, or at least I apprehend you're not putting it forward to be enough, it would seem to me that if it was enough, it could lead to what, in my view, would be the absurd circumstance that there could be an issue of a continuous line of orders amounting to an indefinite duration based simply upon one set of evidence.

MR SKENE: Your Honour, I think I'd respond to that in two ways. The first thing to say to you is that on 18 August, it may well have been that it was pressed before you that on the basis of what had happened over 21 months you should make an order of much longer duration than six weeks. You could have made an order of longer duration.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: The Commission in the past has made orders on the basis of that type of pattern of industrial action for the duration of a project. It's satisfied that given the culture of what existed on the site, the prevailing culture of resort to industrial action, that it's appropriate that that be addressed by an order of the Commission for an ongoing period of time.

THE DEPUTY PRESIDENT: But as I recall, and leave aside the circumstances, because there were some circumstances associated with it, but as I recall, Mr Skene, the duration of the order issued on the last occasion was by consent of the parties. It may well be the circumstance that the Commission comes to a view in respect of probability that is at odds with those of the parties. In this particular case, that wasn't the circumstance, if the Commission issued an order that was in accordance with the views of the parties as to duration.

MR SKENE: Yes, indeed. I mean it maybe - of course, the duration of the order is a matter of the discretion of the Commission as is the satisfaction of the point in time industrial action is happening.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: We accept that for present purposes you need to be satisfied now that industrial action is probable and you can't merely rely on the fact that it was probable on 18 August.

THE DEPUTY PRESIDENT: No. And that's really the only point I'm making. I'm not saying to you that I consider that Mr Messenger's evidence as at August or in respect of the August - the application for the August order is not relevant; quite the contrary, I believe it is highly relevant.

MR SKENE: Yes.

THE DEPUTY PRESIDENT: However, what I am saying to you is in and of itself, to me it is not enough.

MR SKENE: Yes. I certainly would accept, your Honour, the fact that the finding was appropriate on 18 August doesn't make it appropriate today.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: That's the second thing that I wanted to press you on in answer to your question; and that is there is a very fundamental change in circumstance between 18 August and now, and that is the fact that an order has been in place on site, and I don't think that we would quibble with you that that order to a large extent has been an effective order. We haven't seen large-scale flouting of that order, and we don't put forward these instances as suggesting there has been large-scale flouting of that order. But these instances demonstrate that the culture at the site that we submitted to you justified a finding on 18 August prevails to the extent that it justifies a finding now and - - -

THE DEPUTY PRESIDENT: Well, I'm not sure that there were submissions to me about the culture that was on the site. There are now. There were submissions in respect of a pattern of behaviour that existed at the site.

MR SKENE: Yes, that's right.

THE DEPUTY PRESIDENT: You know, you have characterised that as a "culture" and I have got a little bit of difficulty with that term because I'm not exactly sure how it's defined or what it means.

MR SKENE: Yes.

THE DEPUTY PRESIDENT: You have also alluded to, I think in your submissions at paragraph 7, where you say that a purpose of a section 496 order is to require change to the culture of resort to industrial action.

MR SKENE: Yes.

THE DEPUTY PRESIDENT: Well, that particular purpose that you say is there is not clear to me in the Act itself.

MR SKENE: Yes. I extrapolate there from a decision of Ross VP who expressed that to be one of the reasons for making an order in response to a pattern of conduct in one of the decisions involving Grocon ..... in 2004.

THE DEPUTY PRESIDENT: Right.

MR SKENE: So I perhaps should have indicated that it was Ross VP's words there. But, your Honour, certainly whether you call it a pattern of conduct or whether you call it a culture, I think it amounts to the same thing. At the end of the day, based on that probability, the Commission intervenes by making an order and we're not in circumstances now where that's a discretionary exercise. Once you're satisfied - or should you be satisfied that industrial action is probable - - -

THE DEPUTY PRESIDENT: .....

MR SKENE: - - - it must issue. So, in any event, I think if we got to a point one would accept those instances are highly relevant - - -

THE DEPUTY PRESIDENT: Yes.

MR SKENE: - - - as we then say, well, why should an issue - or order issue now. In my submission, what those instances show you, those 21 instances, that essentially once a month throughout the life of this project, there has been an instance. Now, it hasn't been that regular. Sometimes there has been more in a period of time and then longer gaps, but every - within a 21-month period we have 21 instances of industrial action. That's a fairly strong indication of probability, in my submission.

What we then have is the three instances of Mr Messenger that your Honour has just asked him some questions about. Now, your Honour's questions go to essentially whether the employer has authorised something other than the normal performance of work, or has agreed to some other work being performed in that place. Now, your Honour, the first thing to say about, I think, is that we don't bear the onus of satisfying you that the employer has authorised things in that way. That's an exception to conduct which wouldn't otherwise be industrial action and my friends on the other side of the Bar table bear the onus of proving that something less than that conduct that would otherwise be industrial action in fact was approved by the employer.

So the first thing to say is that they haven't made - led any evidence about that. What we have is evidence from Mr Messenger that says he doesn't think that they approved it. In a couple of instances he says he doesn't know they approved it. There isn't any evidence that they did approve it, and you need to line that up against the legal test. There isn't a lot of law on this, your Honour, but there is a decision of Ryan J in a decision in - it's the Education Union v The Canonical Association. I can perhaps provide you with the citation. I don't actually have it with me in court, but that case deals with some teachers who refused to perform after-school duties so they will do their teaching work during the day but they wouldn't perform after-school duties, and there was a debate about whether the school had acceded to that - essentially similar questions to what your Honour was putting to Mr Messenger. The court was clear about this, that what was required was some unequivocal statement from the employer that something other than full performance of duties was required. So, in my submission, your Honour, when relying - - -

THE DEPUTY PRESIDENT: Sorry, what was the reference to that again, Mr Skene?

MR SKENE: It's IEU - which is the union - v The Canonical Association. I think it's a body that runs Catholic schools - The Canonical Association. It's a decision of - - -

THE DEPUTY PRESIDENT: You don't have a print of - sorry, it's - - -

MR SKENE: It's a decision of the Federal Court, decision of Ryan J. I don't have the citation with me, your Honour, but I can provide it to you.

THE DEPUTY PRESIDENT: Thank you.

MR SKENE: Just bear with me for one second, your Honour. I did have it with me in court when we were here before you on 18 August because I anticipated this argument but I didn't bring it along this morning. I don't think I have it.

There isn't sufficient evidence, in my submission. The state of the evidence is this: Mr Messenger has spoken to these employers and one of the employers made a complaint about something about work being interfered with. He isn't sure what the other employers have done, he isn't sure whether stoppages were paid or not. There's no evidence that they were paid. You can't infer on the basis of that that they were paid.

THE DEPUTY PRESIDENT: But he best you can say about Mr Messenger's evidence, isn't it, is that it's hearsay in any event that there was any industrial action.

MR SKENE: Well, I don't know that that's right. He's had direct discussions with the employers about what their employees are doing. Now, that's not hearsay evidence. He's able to say what the employer says to him.

THE DEPUTY PRESIDENT: That's not totally the case, is it? He had some discussion with a Siemens employee in respect of one particular set of circumstances.

MR SKENE: Yes, that's true. So it's certainly true that what Mr Hails, I think is his name - what Mr Hails says to Mr Messenger is not hearsay though. But certainly what Mr Hails says other people have said to him is hearsay. But again, your Honour - - -

THE DEPUTY PRESIDENT: No, the point I'm making is the fact that it was industrial action may well be hearsay in that that employee of Siemens is getting that information from some other source presumably, that it is industrial action, and passing that on to Mr Messenger.

MR SKENE: Yes, I understand that point.

THE DEPUTY PRESIDENT: Simply that a group of people not doing a particular job at any given point in time is insufficient in itself to come to a view by observation that you have industrial action surely.

MR SKENE: Mr Messenger's evidence is this - that each of those employers expected certain work to be performed and as a result of the union intervention that work wasn't performed. Now, there's then a detailed account in a statement, your Honour, that is not challenged. It's all very well to say, "I don't accept hearsay in circumstances where it's challenged" but there's nothing wrong with accepting hearsay in circumstances where it's not challenged. There's a detailed account of each of these instances.

THE DEPUTY PRESIDENT: Yes, but Mr Skene, I'm not saying what I accept or what I don't accept. I'm simply putting questions to you. What I accept and what I don't accept will become clear in the fullness of time when I have made a determination. At the moment, I'm simply asking you questions. It's open, as you're well aware, for the Commission, if it deems it appropriate, to depart from the rules of evidence. I'm as aware of that as you are. I have not made any determination whether I should or I shouldn't in the circumstances. I'm merely trying to come to grips with the material that's in front of me and the mechanism I'm choosing to use to do that is to put questions to you. I believe that's appropriate in the circumstances.

MR SKENE: Quite appropriate.

THE DEPUTY PRESIDENT: Isn't it, I think?

MR SKENE: Yes, your Honour, it is, and I think that what I would say about that is we're not even asking you here to depart from evidentiary principles. Unchallenged hearsay evidence can be readily accepted even under the rules of evidence. Now, your Honour, you asked me directly whether statements made by Mr Hails to Mr Messenger about what he's observed are hearsay. The answer to that is yes, it's firsthand hearsay. It's giving a detailed account here by Mr Messenger. It might have been possible to call Mr Hails. In circumstances where we're anticipating that that evidence would be contested, perhaps we would have called Mr Hails, but the evidence isn't contested, so it is what it is.

As a result, on my submission, hearsay or not, each of those instances can satisfy you that there is a probability of industrial action. I'd say that's the case regardless of whether or not you're satisfied that ultimately, when one applies the legal test of industrial action down the track like it will have to do in the court and there will be debate about what's acceded to and there'll be debate about what's safe and all those things will happen, and if we're prosecuting an instance in the court, and it could have happened here - the unions have chosen not to do that. All of those things are ultimately questions that will be determined there.

Here what we know is that there is ongoing interference with the performance of work, that in particular circumstances an employer might accede to it, or it might not. In one circumstance at least we say it's clear that the employer didn't. It's clear that Vaughans didn't. That evidence is uncontested. It's the subject of a prosecution. Of course, there's no proven facts in that prosecution yet - I'm not suggesting that, but there is a detailed account of exactly what's happened and Mr Messenger - we got direct evidence from him about Vaughans said to him about that. That's not hearsay.

There's also, your Honour, in my submission, sufficient evidence for you to be satisfied that that's going to continue in the future. We have got 21 instances where - there's a whole range of different types of stoppages that were before you - weather related stoppages, extra claim related stoppages, protest related stoppages on the last occasion, and that type of behaviour is continuing on site, albeit in a modified way in circumstances where you have issued an order but, in my submission, the fact that that behaviour is continuing demonstrates that a further order is required; and if there's not a further order, then industrial action will probably occur. Should you reach the conclusion that industrial action will probably occur, you're bound to issue an order as you know.

There are two other - three other dot points that we make in paragraph 9 and I'll briefly respond. The first is that the previous order hasn't been sufficient. The fact that we're still seeing this type of interference, be it industrial action or not, the fact that we're still seeing this type of interference, union delegates stopping work to pursue claims, you can be satisfied that the previous order hasn't been sufficient to stop that.

THE DEPUTY PRESIDENT: Well, stoppage of work seems to me to be a bit unclear even on what is before me, even on Mr Messenger's evidence. The making of claims by a union, or even demands by a union, doesn't seem to me to be something of itself that should be the subject of an order against it. I mean, it seems to me that it's open for any employee, whether a union member or otherwise, to make claims or demands if they want to on their employer.

MR SKENE: I agree.

THE DEPUTY PRESIDENT: And it's open for the employer to respond to those. It seems to me to be open to the employees - employers, I'm sorry, in this particular case to say to people who are saying that they are not going to do a particular piece of work that they want that piece of work done and they want it done now, and they want the contracts of employment to be complied with in an appropriate fashion. If there is not compliance with that, assuming it's a reasonable and lawful request by the company, then there are, as you know, avenues open, particularly in this case when there is an order extant.

MR SKENE: Indeed. Your Honour, I certainly agree that the industrial ..... in the workplace can have discussion about how work should be performed. Indeed that should be encouraged and consultation is one of the things that the certified agreements require. But the issue is what the union can do to pursue its demands or claims, or even requests. And the moment that the action that's taken to pursue or to press those demands falls within the category of industrial action under section 420 of the Act, we have a problem.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: Now, no one is saying to Mr Castles, "Don't go and have a discussion with the employer about whether this carpenter should be doing this work". That's absolutely fine but don't go up to the carpenter and say, "You're not going to do trowelling work on this job again", which is what he did, on the evidence. Now, if Mr Castles went up to the employee and said, "Your banned, effectively, from doing trowelling work", that's industrial action.

THE DEPUTY PRESIDENT: But didn't Mr Messenger give evidence that the carpenter continued to do such trowelling work into the following day?

MR SKENE: The evidence is that the next day two labourers and the carpenter did that work.

THE DEPUTY PRESIDENT: Yes. So, any demand that was made by the individual concerned upon the carpenter was certainly not a demand that the carpenter complied with.

MR SKENE: Yes, your Honour, but I think you need to separate - or one needs to separate the demand and it being acceded to in the industrial dispute type context and whether or not there's industrial action. So, Mr Castles may have made a demand that work be performed in a particular way that could have been the subject of an industrial dispute that the employer accedes to, et cetera, the question here is whether or not what he did in support of that demand amounted to industrial action, and because what he did was say to the employee, even for a period of sort duration - it may be the next day, he said, "I withdraw that ban. You can do this work". That may be the case and, if that is the case, the industrial action ceases. But the ban, within the definition of the Act, is the limitational restriction on people within a carpenter classified doing this work.

He imposed a ban, he communicated it to the employer, it remained in place for a period of time, and in my submission that's industrial action. It's quite clear that an employee can ban the performance of work of another employee. There's a Full Bench decision on that in a case that - the acronym I'm going to get wrong. Perhaps my friends can help me - it's NHMG, it's a Full Bench decision of the Commission. Again, I don't have a citation, Commissioner, between I can provide one.

THE DEPUTY PRESIDENT: It was N - what was it?

MR SKENE: NHMG is the company. It's decision of the Full Bench of the Commission. I think Giudice J was presiding, and it concerned whether or not an employee banning the performance of work by a subcontractor amounted to a ban or limitation within the definition of the Act. The Full Bench concluded that it did. So, in my submission, there is industrial action in relation to incident. If one looks at the scaffolding incident - - -

THE DEPUTY PRESIDENT: Well, again, you say that the delegate concerned imposed a ban by telling the carpenter - - -

MR SKENE: And the employer.

THE DEPUTY PRESIDENT: And the employer - that the carpenter wasn't to do that work. The carpenter then - sorry, the employer then conveyed that information to Mr Messenger, is that correct?

MR SKENE: The site manager of the contractor conveyed that to Mr Messenger.

THE DEPUTY PRESIDENT: Right. So the employer then told the site manager who told Mr Messenger?

MR SKENE: No, no, the site manager of the employer. So the carpenter speaks to his site manager, who is the lead person on the site for that employer, for that contractor, that person then spoke to Mr Messenger.

THE DEPUTY PRESIDENT: Right, okay. Thank you.

MR SKENE: Your Honour, in my submission, a similar analysis prevails for the other instances. Again we have Mr Castles as the prime mover on the site to advance those unions, who's the principal delegate on the site, where he's directing, on his terms, that certain work not be performed until an issue is resolved. Now, again, I don't quibble with you that it may be appropriate to resolve the issue, but what is problematical is the action taken to do that which is to direct that work not happen or that it happen only on his terms while an issue is resolved. That's our primary complaint here. If Mr Castles wants to deal with things through the process, he can. That's what we seek to have happened but on these three instances that's not what happened, and based on that you can be satisfied that future industrial action on the ..... is probable.

There are two other things that we rely upon for the purposes of future industrial action being probable on the site. The first is that we know that work on this site is going to be progressing beyond 30 November. True that it is that most of the work will have been finished before then. Work will be continuing after that time. We know that there is what is described as a monster anti-IR laws rally being ordinary on 30 November. Our experience on this site, as articulated in the evidence of Mr Messenger and the previous ..... is that every time that's happened our guys have stopped work; so, on the horizon, not too far away, there is not a huge leap of faith for your Honour to conclude that there's going to be a stoppage of work on 30 November.

THE DEPUTY PRESIDENT: Which at best would perhaps justify an order for no industrial action to be taken on 30 November, would it not?

MR SKENE: Of itself I think that's right, your Honour, yes.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: But if one is concerned about the jurisdictional ..... the initial issue is, is there a jurisdictional ..... because it's met of itself and then your Honour's discretion is thrown open as to the form of order.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: We would certainly say that the full range of circumstances should guide you in the exercise of that second discretion.

The third thing is that where long weekends have occurred for Spring Carnival at the beginning of November - I think it's the second week of November this week, and around the Grand Final, there has been stoppages of work - Grand Finals obviously very soon. There has been extended stoppages of work where work has finished early on a particular day to give workers and even longer long weekend. Again, we're asking you to extrapolate that based on what has been a consistent past practice will occur again. There isn't, I acknowledge, specific evidence that that is intended to be done on the site, but the difficulty is with that - - -

THE DEPUTY PRESIDENT: When you say "consistent past practice", once is hardly consistent.

MR SKENE: Well, I say "consistent" because on each occasion there has been one of those significant event long weekends this has occurred, be it Spring Carnival, Grand Final or what have you. So we are asking you to extrapolate but - and I think I'd be the first to admit that there isn't specific evidence that that is intended to happen on the site. There isn't evidence that would say, "This is going to occur". Our difficulty in that respect, your Honour, is that the only evidence we can put before you is the past practice because the past practice has been that it is unannounced.

THE DEPUTY PRESIDENT: Yes, but the past practice that you referred to in the evidence was restricted to the Spring Carnival, was it not?

MR SKENE: And Grand Final, wasn't it?

THE DEPUTY PRESIDENT: I don't recall - you might be right but I don't recall reading anything in the materials before me about the Grand Final, simply about the Spring Carnival.

MR SKENE: Yes, your Honour, that's right. Your Honour, I have a citation of that Canonical Association - Canonical Administrators it is. The citation is [1998] FCA 1127; [1998] 157 ALR 531.

So, your Honour, in conclusion I think we would say that the past practice which satisfied you last time coupled with the ongoing behaviour that we have just decided, coupled with the future instances that Mr Messenger is concerned about, coupled with the fact that we know that the behaviour at the site continues to be a resort to an interference with work to address issues, coupled with the fact that your Honour, based on his knowledge of this site, can form a safe conclusion that issues will arise on the site. They're arising on a weekly basis - should lead your Honour to the conclusion that issues will arise and when they arise industrial action is probable. It may not happen every time; it will happen some time. As soon as you can be satisfied that it probably will happen your Honour is bound to issue an order.

In terms of the form of the order, if we get to that point, your Honour, essentially what is proposed is an order in the same terms as the order your Honour issued on 18 October - - -

THE DEPUTY PRESIDENT: You have provided a draft so if we can just deal with that.

MR SKENE: I'll just see if the changes have - yes. So the first change - well, obviously the date, but the first change is just to change the name of the order to "industrial action order No. 2" in the first clause.

THE DEPUTY PRESIDENT: No, sorry, I have got the - you have provided a draft which you have already changed the name of, so if you just address me on any changes to that draft.

MR SKENE: There are no changes to that draft. Sorry, your Honour, perhaps we're at cross purposes. There's a form of order that's attached to the application.

THE DEPUTY PRESIDENT: Yes.

MR SKENE: And there's a form of order that I provided to your Chambers this morning which you might not have. I'll just hand that up.

THE DEPUTY PRESIDENT: Yes, thank you.

MR SKENE: This is the form of order that the parties have reached agreement on.

THE DEPUTY PRESIDENT: Right.

MR SKENE: It's in the same form as the order that you issued on 18 August with the following changes: the title to the order has been changed in clause 1 so it becomes "Industrial Action Order No. 2"; in clause 5.1, service of the order on the unions will be effected just by facsimile transmission to the national office rather than national and state offices, just because it's impractical with difficulties that arose identifying the state offices and, as I say, that's consented to; and the term and date of order which proposes that the order come into effect at 7.30 am on 3 October, which of course is the time of the expiry of your current order, and remains in force until 7.30 on Tuesday, 7 November.

THE DEPUTY PRESIDENT: Can I take it from this that employer is satisfied that, from the employer's point of view at least, and I realise it doesn't require the satisfaction of the employer.

MR SKENE: Yes.

THE DEPUTY PRESIDENT: It requires the satisfaction of the Commission - but from the employer's point of view at least that 30 November is unlikely to result in industrial action by the parties because you're asking for an order that expires on 7 November.

MR SKENE: No, your Honour, I think what we would say is that the parties have reached consent about the terms of the order to enable this case to be run on the basis that it's been run today.

THE DEPUTY PRESIDENT: That's fine but as I think I mentioned the last time that we had these discussions and that was at the time of the August order, what you may or may not agree to between yourselves doesn't in any way change the function of this Commission in assessing whether the jurisdictional prerequisites are met for the issue of an order.

MR SKENE: Yes.

THE COMMISSIONER: And what you're saying to me in effect is that, "We want an order because there is a pattern of behaviour, you're aware of that pattern of behaviour, we put it before you in August, we have further behaviour subsequent to August which we believe should be sufficient for you to come to a view that there remains a probability of industrial action. Among that behaviour is a predisposition, if you like, towards taking industrial action when there are these national stoppages, because that's what's been done in the past and we apprehend that that would - is what would be done in the future".

MR SKENE: Yes.

THE DEPUTY PRESIDENT: "So, on that basis you should make an order that presumably encapsulates that set of circumstances", but then you have served me with a draft that says, "Well, no, we don't want an order that encapsulates that set of circumstances at all".

MR SKENE: Your Honour, the submission that I have put in the context of whether or not industrial action is probable we stand by in its entirety. We acknowledge that the form of order that the form of order that is ultimately made is entirely a matter for your discretion. All I can say is that in exercising that discretion the fact that the parties have reached a consent position on how the facts before you should be resolved is a compelling consideration. I acknowledge the inconsistency that your Honour raises.

THE DEPUTY PRESIDENT: Okay. Anything further, Mr Skene?

MR SKENE: No, nothing further, your Honour.

THE DEPUTY PRESIDENT: Thank you. Mr Davey?

MR DAVEY: The ABC Commissioner supports the Siemens application for the further 496 order, your Honour, in accordance with the terms that you have in front of you. The proof of the threat of industrial action on this site is in its history of the 21 stoppages since December 2004. The current order which I think arrived on 18 August this year - - -

THE DEPUTY PRESIDENT: Mr Davey, with the greatest respect, the Commission has already come to a view with reference to much of that history and on the strength of that view issued an order in August, so the Commission came to a view already that said - that it was to the effect that it appears probable that there would be industrial action. To the point at the moment are those issues at least from my point of view that have happened subsequent to that and whether in fact there remains a probability of industrial action. Are you able to throw any light upon that, Mr Davey?

MR DAVEY: Well, other than the fact, with respect, your Honour, that a month ago, or in August, obviously the threat was so likely that the unions took the unusual step of consenting to that order.

THE DEPUTY PRESIDENT: Well, I'm not sure that they actually did, Mr Davey. What they did was choose in the circumstances that were in front of them not to cross-examine witnesses but I'm not sure that there was any consent per se to the order as such. I might be wrong in my recollection of that but I - - -

MR DAVEY: There definitely - and I wasn't a party to that proceeding, your Honour, so I'm - - -

THE DEPUTY PRESIDENT: I know there was some discussion about the terms of the order insofar as how long the order would last.

MR DAVEY: I don't think there's any - - -

THE DEPUTY PRESIDENT: But I don't think that the unions ever stood up in front of me and said to me, "We consent to an order being issued against us".

MR DAVEY: That is certainly in my - - -

THE DEPUTY PRESIDENT: I would remember it if they had done that, I'm sure.

MR DAVEY: To my knowledge, your Honour, though there was certainly consent to the duration and unfortunately that was underestimated and that's why we're here now.

THE DEPUTY PRESIDENT: Yes. Well, you say it was underestimated on what basis, Mr Davey?

MR DAVEY: It was my understanding, and here again I'm arriving after the event, that that was the estimation of the employer in particular as to what the time span for the Commission - - -

THE DEPUTY PRESIDENT: Yes, but why do you say - you say it's underestimated. Why do you say it's underestimated? On what basis do you say it's underestimated? I have heard Mr Skene say it's underestimated on a particular basis and he's led evidence to that effect via Mr Messenger. I just wonder why you would say it, Mr Davey. Well, why is underestimated in your view? What light can you throw upon what has happened subsequent to the issue of the last order that should lead the Commission to come to a view that there remains a probability.

MR DAVEY: The ABC Commissioner is obviously advised of the periods agreed to.

THE DEPUTY PRESIDENT: Yes.

MR DAVEY: By the employer.

THE DEPUTY PRESIDENT: Yes.

MR DAVEY: By the applicant.

THE DEPUTY PRESIDENT: Yes?

MR DAVEY: We have no more firsthand as to how - - -

THE DEPUTY PRESIDENT: Also, is the position of the ABCC Commissioner that in any circumstance where and order is issued by the Commission reaches its expiration date and the employer decides on no further evidence to apply for a further order, that the Commissioner would accept that such a further order should issue?

MR DAVEY: Look, I don't think this is a - it's the view of the ABCC Commissioner that the events reached to a point of supposedly underpinned the new application had been fairly minute, certainly in the history of this site anyway.

THE DEPUTY PRESIDENT: Right. So the ABCC Commissioner is saying that those events, to the extent they have occurred, your word is that they are minute.

MR DAVEY: Well, I'll probably live to regret that term but they are minor in terms of the split when pitted against the - - -

THE DEPUTY PRESIDENT: All right. And so on what basis does the ABCC Commissioner tell me that I should issue another order other than what I have just put to you, that an employer has made an application for one, therefore they should get one?

MR DAVEY: With respect, your Honour, the fact that the events of the last month have been obviously a lot calmer, I have - it's the submission of the ABC Commissioner that that is only because of the fact that you're order has been existence.

THE DEPUTY PRESIDENT: And so, on that basis, a further order should issue and if there is a requirement beyond that for further order, that should issue, and orders in fact should issue indefinitely as long as the employer wants them to because it's only the order themselves that are preventing, in your view, industrial action from happening.

MR DAVEY: Well, it's the view of the ABC Commissioner and - - -

THE DEPUTY PRESIDENT: And what does the ABCC Commissioner base that view upon?

MR DAVEY: Just the fact - the relatively more orderly proceedings on that site since the order arrived.

THE DEPUTY PRESIDENT: Okay. So , the ABCC Commissioner concedes that what has happened on that site has been more orderly subsequent to the last order.

MR DAVEY: Yes, your Honour.

THE DEPUTY PRESIDENT: But says that without an order that I won't remain orderly.

MR DAVEY: Well, that's - I would have thought that there was a fair bit of evidence to actually suggest that that's likely.

THE DEPUTY PRESIDENT: There's evidence that's been led by Mr Skene in respect of - in Mr Messenger's evidence, what I was asking you is what further light can you cast on the matter, Mr Davey, from the point of view of the ABCC Commissioner?

MR DAVEY: It's the submission of the ABC Commissioner, your Honour, that if there isn't - - -

THE DEPUTY PRESIDENT: You have no direct knowledge - let me put this to you, Mr Davey - you have no direct knowledge as to occurrences on the site subsequent to the issue of the last order. You only have the knowledge that you have obtained via the statements of Mr Messenger and the submissions of Mr Skene, is that correct?

MR DAVEY: That's correct, your Honour.

THE DEPUTY PRESIDENT: Yes. So there's really no further light that the ABCC Commissioner can throw upon the issue of probability of industrial action on that site to assist the Commission?

MR DAVEY: The ABCC have supported Siemens essentially as a result of the history.

THE DEPUTY PRESIDENT: Well, you know, as I said to you before, I have dealt with that in the last order. If you have something that you can say to me that assists me further with the determination that I have to make now, by all means say it, Mr Davey.

MR DAVEY: Probably the only thing I could mention, your Honour, is that it was my understanding when I arrived this morning that the parties had in fact consented to this further order.

THE DEPUTY PRESIDENT: Well, we can clarify that in a moment, Mr Davey, because I'm not aware that that's the case but we could certainly clarify that.

MR DAVEY: I have no further submissions, your Honour.

THE DEPUTY PRESIDENT: Thank you, Mr Davey. Mr Maddison?

MR MADDISON: Thank you, your Honour. In relation to the evidence that was led today obviously we did not seek to cross-examine. As you are aware, at least one of the matters, of the new matters that were raised, that is the Vaughan - - -

THE DEPUTY PRESIDENT: Is a matter before the court, yes.

MR MADDISON: Yes. And your Honour, we will be contesting that vigorously and we certainly deny that there was a breach of the previous order, but that is a matter for another jurisdiction. You did hear some evidence about that today and we will see where that goes. Your Honour, the unions - for our part we are not opposing an order being made in the terms that have been handed up by Mr Skene, but in saying that we do recognise that it is a matter for your Honour as to whether or not you're satisfied based upon the evidence noting that we did seek to clarify - - -

THE DEPUTY PRESIDENT: Well, let me put you on a spot, Mr Maddison. You say - it was raised by the representative of the ABC Commissioner that it was his understanding that you had consented to such order. Is that or is that not the case?

MR MADDISON: I'm not quite sure of the actual distinction between not opposing and consenting but I dare say that there is a difference. We have had discussions with Mr Skene, as he has already indicated, and we don't oppose the order being made in the terms sought. But I think there is a difference between that and consenting.

THE DEPUTY PRESIDENT: Yes.

MR MADDISON: But like I say, it's a matter for your Honour as to the satisfaction of whether the incidents - the new incidents are enough to satisfy you of their minuteness or not but that's a matter for us and we are not making submissions on that, your Honour. Thank you, your Honour.

THE DEPUTY PRESIDENT: Yes, all right. Is that all?

MR MADDISON: Unless you have anything further?

THE DEPUTY PRESIDENT: No, no, that's fine. Mr Larkins?

MR LARKINS: Thank you, your Honour, I have nothing further to add, just to say that the NTEU will adopt and support the submissions of Mr Maddison.

THE DEPUTY PRESIDENT: Okay, thank you. Mr Wieladek?

MR WIELADEK: Yes. Thank you, your Honour, we too have nothing further to add and we'll support the submissions of Mr Maddison.

THE DEPUTY PRESIDENT: Yes, thank you. Anything in - - -

MR SKENE: There's just one matter, your Honour. Your Honour indicated that you'd dealt with the history at the time in your exchange with - - -

THE DEPUTY PRESIDENT: Yes.

MR SKENE: - - - dealt with the history in the last order.

THE DEPUTY PRESIDENT: Well, it might have been a poor choice of words, Mr Skene. What I meant to say by that was that the history was before me in that last matter and on the basis of that evidence of the history I came to a view.

MR SKENE: Indeed. And I think we would simply urge you that that view - that history leading to that view on 18 August, coupled with the facts that are before you and have been discussed already should lead you to the same view today but I appreciate I'm restating myself so - - -

THE DEPUTY PRESIDENT: All right, thanks, Mr Skene. I'm going to adjourn for a while just to have a bit of a think about some of the things that have been said to me. I'll try to make it as brief as I can, and then I'll return and give you a decision.

<SHORT ADJOURNMENT [11.04AM]
<RESUMED [11.39AM]

THE DEPUTY PRESIDENT: Mr Skene, with your permission, I'll mark that draft order, which is the one that you handed up to me previously.

MR SKENE: Yes, your Honour.

EXHIBIT #SIEMENS 2 DRAFT ORDER

MR SKENE: Thank you, your Honour.

THE DEPUTY PRESIDENT: And I am assuming, I hope correctly, that the unions and Mr Davey have a copy of that document, do they?

MR MADDISON: I don't at this stage, your Honour.

THE DEPUTY PRESIDENT: Yes, well, perhaps he can be shown it.

MR SKENE: I can remedy that, your Honour.

MR MADDISON: Yes, thank you.

THE DEPUTY PRESIDENT: Okay. Bear with me and I'll attempt to read my own scribble.

The principal issue before me is to determine pursuant to subsections 496(2)(a) and (b) of the Act whether industrial action remains impending or probable with respect to the Siemens site at Laverton in Victoria. I issued an order pursuant to section 496(1) of the Act in August of 2006. That order has an expiry date of 3 October 2006 and was issued on the basis, among other things, that it appeared to the Commission that industrial action was probable. The Commission came to that view after hearing and considering what at the time was the uncontested evidence of Mr Messenger of the applicant.

Consequent upon the current application, it is now for the Commission to decide whether it appears that industrial action remains probable. If it be the case that the probability remains then a further order must issue. In making the assessment that the Commission must make, the evidence of Mr Messenger in respect of the application for the August order remains relevant but that evidence alone is insufficient for it to appear that the probability remains. A significant consideration must, in my opinion, be the circumstances that have pertained on the site subsequent to the issue of the August order.

The evidence that there has been industrial action, as is apprehended by the terms of the Act, on the site, is, in my view, at best thin and not persuasive. The ABC Commission's representative described the occurrences of alleged industrial action as minute. Be that as it may, it is not necessary for the Commission to determine whether there has been industrial action subsequent to the issue of the August order, merely in respect of the current application to determine whether it appears that further industrial action is probable.

The evidence before the Commission is, at the least, suggestive that problems have existed or exist at the site with real potential to result in further industrial action. Whilst I note that much of the evidence is in the form of hearsay, I further note that it is not contested in circumstances where it was open to the unions to contest it and where it seemed to provide ample opportunity for challenge.

Having assessed the material before me, having regard to the industrial history of the site, both from the evidence previously adduced and from my own knowledge of the site, and having regard to the lack of opposition by the unions to the issue of an order in the terms sought by the draft marked as Siemens 2, I'm led to the view that absent a further order industrial action at the Laverton site is probable.

I might say that I don't say on the basis of the materials before me jump readily to that view. It's a fine balance but the balance favours the probability. I am satisfied that all the jurisdictional prerequisites for the issue of an order in the form of Siemens 2 are met and I intend to issue the order. The order will have effect from 7.30 am, 3 October 2006, and will remain in force until 7.30 am on Tuesday, 7 November 2006.

Unless there's anything further the matter is adjourned.

<ADJOURNED ACCORDINGLY [11.44AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JEFFREY ROBERT MESSENGER, SWORN PN11
EXAMINATION-IN-CHIEF BY MR FOLLETT PN11
EXHIBIT #SIEMENS 1 STATEMENT ATTACHED TO JRM-1 PN30
RE-EXAMINATION BY MR FOLLETT PN88
THE WITNESS WITHDREW PN93
EXHIBIT #SIEMENS 2 DRAFT ORDER PN280