C2006/3248, Transcript of Proceedings [2006] AIRCTrans 1203 (9 November 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16010-1

SENIOR DEPUTY PRESIDENT ACTON

C2006/3248

MECHANICAL ENGINEERING SERVICES PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/3248)

BP2006/3593

MECHANICAL ENGINEERING SERVICES PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.432(1) - Application for order to suspend a bargaining period (cooling off)
(BP2006/3593)

MELBOURNE

9.53AM, FRIDAY, 27 OCTOBER 2006

PN1

MR M ADDISON: I seek leave to appear on behalf of Mechanical Engineering Services together with MR A ELLIOTT and MR HERBERT.

PN2

MR T MCCAULEY: I appear for the AMWU with MR S DARGAVEL and
MR WHEELDAC.

PN3

MS E WALTERS: I appear for the CFMEU. With me is MR J PARKO.

PN4

THE SENIOR DEPUTY PRESIDENT: Is there any objection for the application for leave to appear?

PN5

MR MCCAULEY: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Mr Addison.

PN7

MR ADDISON: Yes thanks, your Honour. Your Honour, there are two applications before the Commission this morning, one pursuant to section 496 with regard to industrial action that is happening in the Latrobe Valley - it certainly was happening when the applications were lodged and to the best of our knowledge still is happening - the other application is with regard to suspension of the bargaining period for a cooling off period. Your Honour, I intend to call
Mr Elliott to give evidence with regard to the circumstances. Before I do that just by way of housekeeping. I inform the Commission that I’ve had a couple of discussions with Ms Zeitz who represents Silcar and Silcar were involved in the matters. I think it’s clear in the application, under 496, in terms of refusal to unload a truck.

PN8

Now, Ms Zeitz contacted me yesterday afternoon to say to me if the Commission wants Silcar to be available they’re happy to be, but they’ve decided at this point in time not to appear on the basis that they don’t believe that they can really assist the Commission in terms of what the Commission needs to do. But they’re available should you wish to have them come along. Your Honour, I think everybody’s got all the documents. We’ve prepared draft 496 order which basically reflects that in the application and a draft order with regard to 432(1). The 496 order as I say is in identical terms to that which is in the application and in terms of the 432(1) application we seek that the bargaining period be suspended for a period of six months from Monday’s date. Your Honour, with that said I’d seek to call Mr Elliott.

PN9

THE SENIOR DEPUTY PRESIDENT: Just so I can get the - you’re seeking both applications?

PN10

MR ADDISON: I understood both were listed for hearing today, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, you’re seeking both orders?

PN12

MR ADDISON: Indeed, yes.

PN13

THE SENIOR DEPUTY PRESIDENT: I just raise for you something that I’d need submissions on.

PN14

MR ADDISON: Yes?

PN15

THE SENIOR DEPUTY PRESIDENT: 496, amongst other things, I’d need submissions on. 496 order only arises if the action is not protected.

PN16

MR ADDISON: Correct.

PN17

THE SENIOR DEPUTY PRESIDENT: 432 can be made if note regarding of a negotiating party applies, yes?

PN18

MR ADDISON: Yes.

PN19

THE SENIOR DEPUTY PRESIDENT: And protected action is being taken.

PN20

MR ADDISON: Correct. Your Honour, what we’d say with regard to that is this. There are two types of action being taken. One form of action is clearly protected action. It’s been authorised by a ballot and that’s bans of overtime, uploading and shift I think from memory. They’re the three bans that were authorised. That protected action is being taken and the company has responded with its own protected action. Now, what we’d say is from there there is clearly some unprotected action being taken and that unprotected action was taken on Wednesday of this week by the refusal of members of the AMWU and CFMEU to unload a truck from the company.

PN21

We say that’s in the form of a secondary boycott and we say that that is clearly unprotected action that was taken in connection with this dispute and we will say that that is industrial action which has been organised and engaging in in concert for the purposes of section 438. We say that the other form of industrial action which is not protected industrial action is the indefinite strike that was notified on Friday by members of the AMWU and CFMEU at the Yallourn workshops. We say that’s not protected, your Honour, because it’s not for the sole purpose of pursuing claims associated with a new certified agreement.

PN22

THE SENIOR DEPUTY PRESIDENT: So the industrial action which you say is a strike is not protected?

PN23

MR ADDISON: Yes because it’s not for the sole purpose of advancing claims. It’s for the purpose of allowing employees to be engaged for award with other employers in the region as well as pursuing the claims. Now, we will rely upon a Federal Court authority with regard to that matter and that Federal Court authority, I just saw that now, your Honour, is FH Transport Pty Ltd and Another v Transport Workers’ Union of Australia 567 FCA, decided on 24 June 1997 by his Honour Drummond J. Now, Drummond J in that case clearly set out that industrial action must be for the sole purpose of pursuing claims particularly - and we say this particular case that we rely on is on all fours with the current circumstances - particularly when third parties could be adversely affected by the action that’s being taken.

PN24

Your Honour, I don’t think it’s off the mark to say that this morning’s applications are last ditch attempts to try and preserve as best we can this business. It seems to us that if the industrial action continues to go on we will be forced into a position of having to as best we can find work for the apprentices, and there are 15 of them, with other employers because we can’t maintain them and we’ll have to stand down four of the staff. Now, if that happens reactivating the business even after the matters are resolved is going to be extraordinarily difficult. But Mr Elliott can give evidence with regard to that.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. So we’ve got the industrial action which is the strike?

PN26

MR ADDISON: Yes.

PN27

THE SENIOR DEPUTY PRESIDENT: And what other industrial action is there?

PN28

MR ADDISON: The other industrial action is the secondary boycott action and there will be evidence of two incidences of secondary boycott action and that action continues.

PN29

THE SENIOR DEPUTY PRESIDENT: Now, this so called secondary boycott action is what?

PN30

MR ADDISON: First of all the refusal to unload trucks belonging to MEC at the various sites and in particular there will be evidence with regard to refusal to unload pulleys and gear boxes from an MEC truck on Wednesday.

PN31

THE SENIOR DEPUTY PRESIDENT: MEC, MES?

PN32

MR ADDISON: MES.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes.

PN34

MR ADDISON: Truck on Wednesday by the CFMEU delegate at Loy Yang mine. There will also be evidence - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Hang on. And the person who refused to unload the truck is an employee of whom?

PN36

MR ADDISON: Silcar and a non-protected person, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: And that was at Loy Yang, was it?

PN38

MR ADDISON: That was at Loy Yang mine. There will also be evidence of an ongoing proposition that RTL, which is a transport contractor in the Latrobe Valley, has been told not to service MES and that, well Mr Elliott will give evidence of specific incidences or the specific incident with regard to that matter. Now, the witness statement - and I'll hand a copy of the witness statement up, your Honour - I spoke to Mr Terzic in the afternoon, I think you’re aware of those discussions and I did fax a copy of the witness statement to Mr Terzic at about 6.30 last night and I also faxed a copy to Mr McCauley up in Sydney and I understand that he’s got that.

PN39

Ms Walters I’ve only given a copy to this morning and I apologise for not sending it to her last night. That sets out the particular incident with regard to RTL at paragraph 9, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: So if they’re on strike you say they’re also taking the industrial action set out in the ballot?

PN41

MR ADDISON: Well, if we look at it chronologically, your Honour, the ballot was conducted and employees engaged in industrial action as they were authorised to do under the ballot. The employer decided it would not accept part performance and locked them out. The employer then because of the necessity to keep the other 50 per cent of the employees employed - and I think there’s 40 employees who are engaged in the industrial action and 32 who are not so it’s fairly evenly balanced - that the employer needed to bring those employees back so as to maintain the 32. That’s the reality of the situation and the employees notified of the strike. Now, we have been told and Mr Elliott’s been told that the purpose of the strike is to allow employees to continue employment with other employers in the region.

PN42

Now, if that’s the case according to his honour Drummond J in FH Holdings that’s an illegitimate purpose and the action’s not protected and if the action’s not protected then a 496 order automatically flows.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, I know. I’m asking about the other aspect, the 432 order, the cooling off that you seek.

PN44

MR ADDISON: Yes, the ballot and the - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Which is in respect of protected action.

PN46

MR ADDISON: Yes, the ballot and the lock out, your Honour, which are clearly protected.

PN47

THE SENIOR DEPUTY PRESIDENT: So you say, do you, that if they’re taking strike action they’re also taking the bans?

PN48

MR ADDISON: That’s an interesting question, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Well, I raise it because 432 talks about protected action is being taken. You don’t have to give a submission on this now, I just raise it for you.

PN50

MR ADDISON: Yes, yes. Yes, I see where you’re coming from, your Honour. Okay. With that said, your Honour, I’d seek to call Mr Elliott.

<ANTHONY GORDON ELLIOTT, SWORN [10.07AM]
<EXAMINATION-IN-CHIEF BY MR ADDISON

PN51

MR ADDISON: Yes thanks, your Honour. Mr Elliott, do you have a copy of a witness statement that was prepared yesterday with you?---Yes, I do.

PN52

Can I ask you to have a look at that witness statement and confirm that it is a statement that was made by yourself yesterday?---Yes, it, is.

PN53

And is there any changes you’d like to make to that statement?---Not at this stage.

PN54

Can I direct you just to a typographical error. Yes, it’s in paragraph 9 on the second page, five lines down. It says:

PN55

Not to do any pick up or -

PN56

No, my apologies, that’s not it.

PN57

THE SENIOR DEPUTY PRESIDENT: Should that be MES anyway? Deliveries from MES?

PN58

MR ADDISON: Yes, it should be. Should that be MES?---No.

PN59

Sorry?---No.

PN60

No? Why not?---The operating company trades to its customers as MEC.

PN61

Yes. So MES is the employer but MEC is the trading company, is that correct?
---That's correct.

PN62

So there is a typographical error in there, your Honour, but I can’t find it but it’s minor. Are the contents of the statement true and correct?---They are.

PN63

I’d seek to tender that, your Honour.

EXHIBIT #A1 DRAFT ORDER UNDER SECTION 432
EXHIBIT #A2 DRAFT ORDER UNDER SECTION 496
EXHIBIT #A3 WITNESS STATEMENT OF ANTHONY GORDON ELLIOTT

PN64

MR ADDISON: Thanks, your Honour. Mr Elliott, could I just take you to paragraph 9 of the witness statement. You have said there or described there a discussion you had with the yard manager at RTL. Can you just expand on that and tell your Honour exactly what happened on that day?---I went to the RTL yard to pick up a pulley. I had previously been informed that they would not pick up or deliver to MEC or on behalf of MEC to the mines or various power stations. I asked the yard manager why this was the case. He reluctantly told me that he’d had some phone calls from Silcar. I then asked who at Silcar, whether it was one of the senior people. He then said no, it was the shop steward.

**** ANTHONY GORDON ELLIOTT XN MR ADDISON
PN65

Okay. Did you do anything about that following that discussion?---I relayed it internally within MEC and that was about as far as we went at that stage.

PN66

Thank you. Could I just direct your attention to paragraph 15. In paragraph 15 you talk about your concern that you may have to put off staff with regard to the current dispute. Can you tell your Honour if you needed to do that how long it would take you to reactivate the workshop once the dispute is resolved?---I don’t think I could put a definite time frame on that, however I think it would take some time as depending on how long this went on for a number of the staff would possibly find other employment. To then attract the appropriate staff and then also attract work to carry on the business at a sustainable level I just think it would take a considerable amount of time, effort and would probably sustain considerable loss for some time in doing so.

PN67

Okay. And just on point 14 you say there that you’ve been informed by a number of employees that the reason for this, and this is the strike that we’re talking about, is to allow the trades employees to continue in employment with other employers at better rates. Can you tell your Honour where you get that information from?

PN68

THE SENIOR DEPUTY PRESIDENT: What paragraph is this?

PN69

MR ADDISON: Paragraph 14, your Honour, the last part?---The information I got there was through one of the supervisors and also through one of the management staff who I believe has spoken to a number of the employees who are involved in the situation.

PN70

Okay, thanks for that. I have no more further questions for this witness, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Mr McCauley?

PN72

MR MCCAULEY: I have no questions for the witness, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Ms Walters? You’re excused,
Mr Elliott?---Thank you.

<THE WITNESS WITHDREW [10.17AM]

PN74

MR ADDISON: There’s no more evidence from the applicant, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: Have you got any evidence?

PN76

MR MCCAULEY: Your Honour, yes. If I could call Mr Dodd.

<STEPHEN WILLIAM JAMES DODD, AFFIRMED [10.18AM]
<EXAMINATION-IN-CHIEF BY MR MCCAULEY

PN77

THE SENIOR DEPUTY PRESIDENT: Just a minute. Mr Dodd, it is Stephen with a V or a PH?---PH.

PN78

Thank you. Mr McCauley.

PN79

MR MCCAULEY: Thank you, your Honour. Mr Dodd, if I could just ask you a couple of questions. You’ve heard about the strike action in response to the company’s lock out. Why did the union in your knowledge institute that strike action in response?---Well, we instituted it on the basis that we wanted to come to an agreement with the company and we saw that as one way of getting them to the bargaining table basically.

PN80

To your knowledge do the employees of MEC or MES, you said that we’re trying, the union is attempting to further the bargaining. Do those employees of MES wish to continue with the employment with MES?---They certainly do.

PN81

With regard to some incidences that have said to occur on different sites with respect to different employers have you organised any industrial action on those sites?---No, I haven’t.

PN82

No further questions, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: Ms Walters?

PN84

MS WALTERS: No further questions, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Mr Addison?

PN86

MR ADDISON: Thanks, your Honour.

<CROSS-EXAMINATION BY MR ADDISON [10.20AM]

PN87

MR ADDISON: You’re aware aren’t you, Steve, that a number of the employees who are employees of the applicant in these proceedings are employed by various employers in the Latrobe Valley, aren’t you?---I am aware of that, yes.

PN88

Yes. Indeed employees are engaged with Loy Yang?---I’m not sure who the employers are.

**** STEPHEN WILLIAM JAMES DODD XXN MR ADDISON
PN89

You’re not sure about that?---No.

PN90

Haven’t you organised employment?

PN91

MR MCCAULEY: Your Honour, I don’t see that these questions arise out of the examination in chief of the witness.

PN92

THE SENIOR DEPUTY PRESIDENT: They don’t have to.

PN93

MR ADDISON: They arise from the evidence of my witness, your Honour. You’ve organised for employment for a number of those employees, haven’t you?---I haven’t organised them, no.

PN94

No? You haven’t spoken to their employers in the Latrobe Valley, ask them to take on some of these people who are ostensibly on strike?---There’s been no hindrance as I understand. If people want to go out and find other work they can do it.

PN95

So people are, you agree, engaged in other work for award?---I believe there are some.

PN96

Yes. Now, you’re aware that the employer wrote to the employees on the 19th and 23 October, aren’t you?---I’m aware of that, yes.

PN97

Yes. And you’re aware that the request from the employer was for the employees to return to work?---I’m aware of that.

PN98

And you’re aware that the employer informed the employees that it would accept their performance with the bans in place?---I’m aware of that.

PN99

Yes. Now, following that the union notified an indefinite strike, that’s correct isn’t it?---That's correct.

PN100

Yes. Did you have a last meeting with regard to that?---I believe after the indefinite strike was put in place we had a meeting.

PN101

Yes. Prior to the indefinite strike you gave authorisation for the troops to - - - ?
---Yes, I understand that a phone call was made to the troops.

**** STEPHEN WILLIAM JAMES DODD XXN MR ADDISON
PN102

There was phone calls made?---Yes.

PN103

Yes. You’re aware that employees told various officers of the company that they weren’t going back to work because they were employed by other employers, aren’t you?---No, I’m not.

PN104

No you’re not?---No.

PN105

You’re not aware of that?---No.

PN106

Okay. Mr Elliott has given evidence that he’s been told that that is the exact reason why employees had refused to go back to work. What do you say about that?---I can’t comment on what Mr Elliott’s been told, but I’m not aware of that.

PN107

Okay. You’re not aware of that?---No.

PN108

Okay. You can’t deny that though, can you?---I’m not aware of something so how can I either confirm or deny it?

PN109

Fine. Now, you are the organiser for the AMWU across the Latrobe Valley. That’s correct, isn’t it?---That's correct.

PN110

And you have responsibility for RTL?---I do, yes.

PN111

Yes. AMWU have members at RTL?---We do.

PN112

Yes. And you keep in contact with the delegate at RTL?---Sometimes yes.

PN113

Yes. AMWU have members at Silcar?---They certainly do.

PN114

The AMWU have members at the Loy Yang mine with Silcar?---They certainly do.

PN115

And the delegate at the Silcar workplace at Loy Yang mine you keep in contact with?---The AMWU currently doesn’t have a delegate at the Silcar Loy Yang mine.

PN116

Okay. Tom is the CFMEU delegate, that's correct, isn’t it?---I believe so, yes.

**** STEPHEN WILLIAM JAMES DODD XXN MR ADDISON
PN117

Yes. Now, it’s true, is it not, that you have kept your delegates in the valley, in the power industry particularly, in the loop so to speak with regard to this dispute, haven’t you?---I’m sure that all of members of whatever the union or the community are aware of the dispute at MEC or MES. As you would be aware it’s been reported in the media. Everybody knows what’s happening up there.

PN118

Yes and you specifically have spoke to your delegates with regard to this dispute, haven’t you?---I have spoken to them at different times, yes.

PN119

And you have said to your delegates you should support this dispute, haven’t you?---I have said that to them, yes.

PN120

And by that you mean that your delegates should not give comfort or sucker to this company in any way, shape or form, don’t you?---I mean that they should support it by financial or any other legal means that they can.

PN121

Right. You’ve told your delegates not to unload trucks, haven’t you?---No, I haven’t.

PN122

I put it to you you have?---Well, I put it to you I haven’t. I know what I’ve done.

PN123

Okay. Did anybody contact you with regard to the refusal to unload an MES truck on Wednesday?---I had a phone call late on Wednesday about an MES truck that had gone to the Yallourn open cut.

PN124

Yallourn open cut?---Sorry, Loy Yang open cut.

PN125

Now, that truck was never unloaded, was it?---I believe it wasn’t, no.

PN126

No. In fact Mr Elliott was directed off site with regard to that site, wasn’t he?---I don’t - I wasn’t there so I can’t answer that.

PN127

MR MCCAULEY: Sorry. My objection was just that the witness is constantly being asked about facts he could have no possibility of having knowledge of and that we question the relevance of those questions.

PN128

MR ADDISON: I’m not sure that’s correct. The witness has said he got a phone call about it on Wednesday afternoon. One presumes he got told what was going on. If he didn’t - - -

**** STEPHEN WILLIAM JAMES DODD XXN MR ADDISON
PN129

THE SENIOR DEPUTY PRESIDENT: Anyway, it’s been answered.

PN130

MR ADDISON: You’re aware that Mr Elliott was directed off site, aren’t you?
---No, I’m not.

PN131

Okay. You became aware of that when you read this witness statement?---I haven’t read that witness statement.

PN132

You haven’t read it?---No.

PN133

Okay. I have no further questions for this witness, your Honour.

PN134

THE SENIOR DEPUTY PRESIDENT: Mr McCauley?

PN135

MR MCCAULEY: Just one question, your Honour.

<RE-EXAMINATION BY MR MCCAULEY [10.27AM]

PN136

MR MCCAULEY: Mr Dodd, just to clarify what time did you receive that phone call on Wednesday?---I’m not sure. It was late in the day. I was at the ACTU conference so I received a number of phone calls. Unless I actually checked.

PN137

So you were being told about what had already happened?---Certainly, yes.

PN138

Thanks, Mr Dodd.

PN139

THE SENIOR DEPUTY PRESIDENT: You’re excused.

<THE WITNESS WITHDREW [10.28AM]

PN140

MR MCCAULEY: Just one moment thanks. We have no further evidence, your Honour.

PN141

THE SENIOR DEPUTY PRESIDENT: Ms Walters, have you got any?

PN142

MS WALTERS: No, your Honour.

PN143

THE SENIOR DEPUTY PRESIDENT: That completes the witness evidence?

PN144

MR ADDISON: It seems that way your Honour, yes.

PN145

THE SENIOR DEPUTY PRESIDENT: What are the issues between the parties?

PN146

MR ADDISON: Sorry?

PN147

THE SENIOR DEPUTY PRESIDENT: What are the issues between the parties?

PN148

MR ADDISON: Your Honour, we met last Monday I think, or the Monday before. As I understand the position, and Mr Dargavel will correct me if I’m wrong, but as I understand the position the union’s claim is effectively well over the existing agreement, pay wage increases of 5 per cent, 5 per cent, 5 per cent over a three year term and pay the increase for the income protection insurance through RUS which amounts, as I understand it, at about 2.2 per cent of their own. The employer’s position is not to roll over the existing agreement. There’s a draft agreement that should - you’re aware of it, your Honour. It’s on the file in related proceedings, in the MH proceedings, but I don’t think that we tabled it there.

PN149

We say our position officially is probably 3.5, 3.5 and 3.5, although we have bettered that in the course of the negotiations and we’ve certainly said to the union last Monday - and if I could put this without prejudice, your Honour - we’re prepared to go to 5.4, 4 and 4 plus a fourth year which we want to be paid at CPI plus 10 per cent of CPI so as to give us some reasonable term before the term of the agreement. We say in return for that the employee should agree to salary sacrifice in terms of the income protection. We think that that can be done in a way which is advantageous to both parties. And we say one RDO a month. We say the employees should come back from working a 42 hour week as they currently are with a night a fortnight to a 38 hour week with one RDO a fortnight.

PN150

Now, out of the two documents there are some issues between us. There are some issues with regard to apprentices, there are some issues with regard to call ins, there are some issues with regard to redundancy. I think that’s about the scope of it, your Honour. I think the parties aren’t a million miles apart, but we’re certainly apart if I can put it that way. If your Honour pleases.

PN151

THE SENIOR DEPUTY PRESIDENT: Mr Dargavel?

PN152

MR S DARGAVEL: Yes. Mr Addison invited me to correct him if he’s wrong and I will. Firstly in relation to the union’s position he mis-described our position when he says that we seek a roll over. The union’s position is that we seek to, subject to as far as we are able in accordance with the legislation, preserve terms and conditions of employment and have a wage increase and respond sensibly to the employer’s proposals. We have not sought the continuation of provisions which have now become prohibited under the legislation and we have been consistently putting that position to the employer throughout the discussions when we recently met. So a roll over subject to it being consistent with law and relationship and so on.

PN153

It is true that we are seeking 5, 5 and 5 over three years. Now, in relation to the list of names from the employer there are 14 demands by the employer that were apparent on the last meeting. Your Honour, do you want me to briefly describe those 14 points?

PN154

THE SENIOR DEPUTY PRESIDENT: Sure.

PN155

MR DARGAVEL: The company seeks to reduce the pay for new apprentices to the percentage of the award rate of pay. They pay their apprentices on another site, as I’m informed, significantly less than just about anywhere else that I’m aware of. I think the first year earns less than $7 an hour. So that is one significant issue. The company’s claim to significantly reduce the pay for low paid apprentices is one issue. Secondly the company seeks to continue the retrospective effect of the termination of the certified agreement in respect of redundancy. The redundancy provisions of the agreement are provided for significant improvements over the award.

PN156

The company want to maintain simply the award and that is not continued to provide for redundancy provisions which are significantly greater than the award. So prior to the termination it was - so it’s up to 28 weeks and the company seeks to continue to have that simple minimum award provision, which is significantly less, continue to apply. In relation to the IUS the company has put to us a proposal that we do a salary sacrifice arrangement on income protection. They assert that it’s lawful for us to do that and they assert that it won’t cost our members anything. We’ve received advice that that’s certainly not the case. We remain open to the technical discussion.

PN157

We haven’t closed that door, but you know, our starting preference is that the income protection provisions would operate in a normal way rather than a tax avoidance or tax minimisation way, but we’re open to the technical discussion. We’re happy to have both sets of legal advice checked out. In relation to RDOs and hours it is the case that the employees have worked prior to the lock out 42 ordinary hours, or prior to the termination of the agreement 42 ordinary hours accumulating two rostered days off on a four week cycle. The company wants to take them to 40 hours and accumulate one rostered day off per four week cycle instead of two.

PN158

We canvassed the possibility after our last discussions informally on a without prejudice basis that if the company dropped off its tax on conditions of employment, award conditions that can be preserved and the like whether there was a compromised position, given our position is 42, their position is 40, whether 41 might resolve the problem. But I was subsequently advised some three or four days later after putting that question to the employer through Mr Addison that that would not be acceptable to them. There is a - the fifth issue is the call-ins and this relates to the company’s demand not to have a minimum of four hours pay for a call in. The sixth item relates to leave and shift rates, that is the company demands that when annual leave is taken for someone who is on an ongoing shift as opposed to a continuous shift, someone who’s permanently on shift, the company demands that they only get a lower percentage penalty on the annual leave.

PN159

The seventh issue is that the paid meal break on shift, there’s a question about whether - I think it may be the case that the company may offer that position back, but as I understand it formally their position is they want to remove it. The eighth issue is that in relation to the accrual of paid overtime there is an overtime bank in the agreement that was terminated. If you work on a Sunday for example for an hour you can, instead of being paid, have two hours accumulate as rostered time off, that is you’re accumulating the rostered time off instead of being paid cash for the overtime. That’s a provision that was in the previous agreement that was terminated.

PN160

The members liked that arrangement. It assists with managing work and family type balances. The company seeks to terminate that arrangement. We discussed or we put to the company a compromised position which is really formalising a cap that was supposed to operate in the previous agreement of the number of hours that can be banked. The previous agreement did provide for a cap on the bank, but the company effectively didn’t manage that cap and so employees have banked greater than the cap provided. So we were proposing a mechanism to deal with that excess. The ninth problem was that that company wants to remove the EBA clause in relation to disciplinary procedures.

PN161

It appeared to us at least that some of the company misunderstood the disciplinary procedure provisions and it may be that that is going to be an issue that is not that hard to resolve. I think that issue is certainly resolvable. We’re awaiting some advice from the company on that position in a formal sense. The tenth issue was the length of the agreement. The members seek a three year agreement, 5, 5 and 5. The company seeks a four year agreement. The eleventh problem is provisions relating to working away from home. The company, instead of offering the normal living away from home allowances, wants to undertake instead to put employees up in salubrious three star accommodation if available on the project that people might be located on.

PN162

They don’t undertake to actually ensure that there is the minimum of a salubrious three star accommodation. We had some discussions about that. There may be that there is a resolution of that point. The twelfth item relates to leave. The company’s proposal to change the leave provisions to introduce a cap and to cash out which is contended. The thirteenth item is relating to casuals, a trades person grading and the company’s proposal that as I understand it that casual trades persons have an inferior provision relating to their classification above C10. And then of course the wages item, the members are seeking 5, 5 and 5.

PN163

The company is offering 5.4, 4 and 4 potentially, but that’s on the basis that income protection is being salary sacrificed out of that arrangement which means that the pay offer is lower because salary sacrifice on the previous agreement didn’t exist and the employer picked up the cost of that so the employees are expected to fund the income protection as I apprehend the company’s position. So there are some 14 demands that the company are seeking and, you know, some of those issues are relatively easy to resolve, some of them require the company to, in our members’ minds, alter their position. From the previous discussion, your Honour, the company was to confirm in writing with the union the list of issues so that we finally had some clarity about exactly what it was seeking.

PN164

What we put to the company was rather than have the negotiation over the claims, if you like, through the proxy of draft agreements the parties would be better served to focus on exactly just precisely the issues and then construct the draft agreement. We haven’t received confirmation from the company in relation to the 14 points. We don’t make any trouble about that, but suffice it to say there are some significant list of issues which require some movement by the parties to result in an agreement. If your Honour pleases.

PN165

MR ADDISON: Just to clarify some of those. One point that was put, that’s certainly not my recollection. I understood that Mr Dargavel was going to respond to us with a document, but as he set out and I don’t want to make any big issue about that either, it might just be a miscommunication between us. With regard to a number of those issues they come out of the two separate documents. Some are issues and some are not in reality. The question of the disciplinary policy was a misunderstanding from our part as to how it would work. As
Mr Dargavel has already said that’s easily fixed. With regard to the casual grading for instance the previous agreement limited us to paying C10 rates to a casual for three months. We think that’s unfair.

PN166

We want to pay the casuals more than that if they deserve more than that. Surely that’s not a matter between the parties that’s in dispute. If it is I'll be amazed. It’s just a matter that needs to be cleaned up. So we say there’s not 14 issues between the parties, there couldn’t possibly be. Certainly 14 issues of discussion that we had last time. We are not that far apart, but we are apart. There’s no doubt about that. In terms of the IUS matter and the 5.4, 4 and 4 I hear what Mr Dargavel says. There was an alternative that we put on the table and we’re prepared to live with 4, 4 and 4 and pay the income protection. So it’s not as if we just put that position on and said that’s it. You know, there is certainly scope within the terms of the agreement to try and find an accommodation.

PN167

Now, under the current circumstances that’s very, very difficult and getting more and more difficult hence our application for a cooling off period to see if those matters can be dealt with in a non-hostile environment. If your Honour pleases.

PN168

MR MCCAULEY: Your Honour, if I might make application to that if we adjourn into conference. We’ve just raised a number of issues between us. As
Mr Addison has said himself there may be some confusion over whether we’re apart or whether we can just nub these things out. It may just be an opportune time to progress in conference rather than going back and forth on the records.

PN169

THE SENIOR DEPUTY PRESIDENT: What do you say Mr Addison?

PN170

MR ADDISON: Your Honour, we’re here to settle this dispute. If this dispute can be settled today all the better. I don’t object to that application. I’d ask fore 10 minutes just to get some instructions, but that aside no objections.

PN171

THE SENIOR DEPUTY PRESIDENT: All right. I'll adjourn until 11 o'clock and come back in conference.

PN172

MR ADDISON: If your Honour pleases.

<SHORT ADJOURNMENT [10.46AM]
<RESUMED [12.11PM]

PN173

THE SENIOR DEPUTY PRESIDENT: Mr Addison.

PN174

MR ADDISON: Yes thanks, your Honour. Your Honour, as we said earlier we seek an order pursuant to section 469. In relation to the question you asked me earlier, your Honour, what we say is this, that the Act has a sanction for unprotected industrial action.

PN175

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN176

MR ADDISON: The Act has a sanction for unprotected industrial action which is a 469 order. If we’re right in our argument that the indefinite strike is unprotected action and we say we must be right that the activities on other sites directed against this company is unprotected industrial action and warrants the issue of a 469 order in any event, but if we’re right with regard to that indefinite strike argument then obviously the sanction would issue which would leave the prior status quo being the protected industrial action in place. Now, that protected industrial action was by the way of bans which was then responded to by the company with a lock out and both of those forms of industrial action are in fact protected.

PN177

If we’re wrong on our argument about the indefinite strike then it seems that the indefinite strike would amount to protected industrial action anyway and it would allow the Commission to exercise its powers pursuant to 432 and suspend the bargaining period. So we’re putting either of those ways, your Honour. But either way around we’re of the view that the Commission does have the power to suspend a bargaining period for a cooling off period. So we proceed on the basis first of all of saying that the evidence that you’ve heard this morning, your Honour, the evidence from Mr Elliott was in effect uncontested. That evidence must stand in tact. We say the evidence from Mr Dodd did nothing to detract from that evidence of Mr Elliott.

PN178

The evidence is clear that there is action being taken against MES or MEC in terms of action from unprotected people, those being the delegates are other sites. There is uncontested evidence that Mr Elliott was told by RTL that RTL had been in receipt of a threat from a delegate that if he serviced MES or MEC that there’d be sanction against RTL. We say that that’s clearly unprotected industrial action and it’s unprotected industrial action by way of a secondary boycott and we say that on the basis of that certainly with regard to that particular activity a 469 order should issue. Now, Mr Dodd in his evidence said that yes, he’d kept the delegates apprised of what was going on at MES, he told the delegates there was a dispute, all the rest of it and we say the Commission can be satisfied on the basis of the evidence before it that the two matters are clearly linked. So we say an order should issue with regard to that.

PN179

With regard to the indefinite strike, your Honour, we say that protected industrial action must be for the purposes of pursuing matters for the inclusion of an agreement. Bear with me a second, your Honour. If the industrial action is being taken for an ulterior purpose then that defeats the protection. Now, I'll hand up a decision which is the decision I referred to earlier, your Honour. If I can take your Honour to page 7 of 13 in that decision. Now, this deals obviously with the previous regime, not the new Work Choices Act but the pre Work Choices Act if I can quote them in those terms. The provisions are essentially the same, but the lettering is somewhat different, your Honour.

PN180

His Honour Drummond J said in this decision about half way down to page 7:

PN181

It’s in my opinion unlikely that section 170ML(2) was intended to operate so as to legitimise industrial action engaged in for purposes other than that particular purpose.

PN182

Now, his Honour is talking about the words that were in 170ML(2) which now appear in terms of protected industrial action. Bargaining parties are entitled to engage in protected industrial action in pursuit of matters to be included in the certified agreement. If the industrial action has a mixed purpose according to his Honour Drummond J then that would remove the protection. And he says in the next paragraph:

PN183

It’s one thing to accept that a union should have immunity from liability in respect of industrial action taken in that context and for that prescribed purpose. Where it will inevitably harm others because of the nature of the business the negotiating employer against whom the union directs the action. I can see no justification in the legislation for anyone to give the union an opportunity to obtain a wider immunity with respect to, prima facie, unlawful activity.

PN184

Now, from the evidence this morning, your Honour, and the uncontested evidence of Mr Elliott he has been told the purpose for the indefinite strike is to allow employees to continue employment with other employers and receive higher payments. Mr Dodd in his evidence couldn’t say that that was not correct.
Mr Dodd in his evidence when I put it to him that he’d assisted employees in that endeavour to get employment with other employers said there’s been no difficulty. Now, your Honour can be satisfied that on the basis of the evidence before the Commission this morning that there is in fact a mixed purpose and the mixed purpose is one to achieve benefits through the certified agreement, but secondly to allow employees to continue employment with other employers and we say on that basis the action loses its protected status and we say so on the authority of this decision of Drummond J.

PN185

Now, your Honour, I’ve looked for other authorities with regard to this matter. The only one I can find is a decision of North J and that’s a decision of TWU v Lee [1998] 173 FCA. Now, that’s an interlocutory decision in which North J refers to the decision of Drummond J and says that it is arguable as to whether Drummond J was right or wrong. The matter went on appeal and it went on appeal to a full court of the Federal Court in Lee v Transport Workers’ Union and I can’t give you a reference for that, your Honour, at this point in time. But that matter was not dealt with by the full court of the Federal Court. So the only authority that I can put my hands on with regard to this particular matter is the one I’ve referred you to, your Honour. It’s the only authority that stands in terms of the industrial action having to be for a single purpose rather than for a mixed purpose.

PN186

So we say if Drummond J is right, and we say he is, then the industrial action that’s been engaged in is not protected industrial action and on that basis the industrial action is subject to and must have a section 496 order issued against it. So we seek the 496 order with regard to both of those matters, the secondary boycott issue and the indefinite strike. And, your Honour, you have a draft order with regard to that. We seek that the unions give us a letter with regard to the matters so that can then be delivered to employees both at Yallourn and on the Loy Yang Silcar sites and wherever else and certainly RTL site so that it’s clear that the unions are not authorising unprotected industrial action with regard to this matter. That’s our submissions with regard to the 496.

PN187

With regard to the other matter, your Honour, I’ve already said that if we’re right in our arguments we think that you must then logically fall back the protected industrial action which deals with that matter you’d asked me to deal with earlier. Your Honour’s aware of the particular circumstances that surround this dispute. There is evidence which has been given this morning by Mr Elliott which deals with the financial circumstances surrounding the matter. The reasons why the company has been fairly steadfast in its position of trying to reach an agreement which for each makes commercial sense there’s financial evidence which is before you which is uncontested, your Honour. There have been negotiations going on.

PN188

We are fast getting to a position where further commercial decisions will need to be taken. Those commercial decisions will negatively impact on a whole range of other employees and principally apprentices. We say that suspending the bargaining period to allow negotiations to occur in a neutral environment would assist the parties to resolve their differences. We say that such suspension of the bargaining period would not be contrary to the objects of the Act. In fact it would enhance a number of the objects of the Act, specifically the object that deals with young people and the apprentices will certainly be people who are at risk of, well, of ultimately not achieving their goal of finishing an apprenticeship and having skills, recognisable skills that is.

PN189

So, your Honour, we say under all the circumstances the Commission can be satisfied that the bargaining period ought to be suspended to allow negotiations to go on. They’re our submissions. If the Commission pleases.

PN190

THE SENIOR DEPUTY PRESIDENT: Mr McCauley, I’ve got another matter on until 2.30 so I'll resume this matter at 2.30.

<LUNCHEON ADJOURNMENT [12.25PM]
<RESUMED [2.35PM]

PN191

THE SENIOR DEPUTY PRESIDENT: Mr McCauley?

PN192

MR MCCAULEY: Could I just have a minute, your Honour. Thank you, your Honour. Your Honour, dealing first with the section 496 application of the employers, what we have firstly is an allegation that industrial action is unprotected. Firstly to set the scene, just to get some dates in order, in mid September the company decided to lock the employees out for three months. On 19 October the company sent a letter to seven employees. In that letter the company stated that the lock out would be rescinded from 23 October. On 20 October the company were served with a notice that a strike would commence from 20 October. So if we turn to section 441 of the Act, the requirements of section 441(2) are met - - -

PN193

THE SENIOR DEPUTY PRESIDENT: Let me just turn it up, Mr McCauley. Yes.

PN194

MR MCCAULEY: Section 441(1) starts with, discusses who may take industrial action. Section 441(2), the requirements. The requirements are that if the action is in response to and is taken after the start of industrial action against employees by the employer in respect of the proposed collective agreement, the organisation or the employee who was the negotiating party has given the employer written notice of the intention to take action. That's what we did on 20 October. We haven't heard any contest of that from the employer this morning. I should also note that certain other employees were served with the letter retracting the lock out on 23 October. So that was well after the company was served with the notice of strike.

PN195

If I can just move on more specifically. The nature of the strike action taken has an influence on the purpose for which industrial action may be taken under the Act. If we turn to section 435 of the Act, at 435(2), "During a bargaining period an organisation" - et cetera - "is entitled for the purpose of either" - it doesn't say, either, "is entitled for the purpose of supporting or advancing claims made in respect of the proposed collective agreement or" - and this is important - "responding to industrial action by the employer against the employees whose employment will be subject to the proposed collective agreement." And then goes on to detail the organisation engaging in industrial action.

PN196

So when we start to consider the submissions of the employer about what purpose industrial action may go to, it's important to note that there are two separate purposes detailed in section 435. We have heard from Mr Dodd that the purpose of the strike action was to pursue bargaining for the agreement. Secondly, even if that weren't the purpose, section 432(f) is satisfied in that we were responding to industrial action by the employer against employees whose employment will be subject to the proposed collective agreement.

PN197

Then if we can turn further to the employer's submissions. They submitted that there was evidence that the strike was for the purpose, or the mixed purpose of allowing employees to work for award for other employers. What we should first note is that there is no evidence of this. We have heard from Mr Dodd that some employees have found work. They have found work to perhaps mitigate their loss over a lock out of some six to eight weeks. What evidence do we have? We have Mr Elliott saying he talked to MEC supervisor and/or management staff who Mr Elliott believes talked to someone involved. We do note the hearsay nature of such evidence. In contrast the evidence of Mr Dodd is quite clear. There is simply not enough before the Commission to draw any conclusion that the strike action was for the purpose, whether it's a mixed purpose or a sole purpose of working for reward for other employees.

PN198

Further, we haven't got any evidence before us that it is in the nature of the employment contract of any of the employees who may or may not be engaged in other work during the period of the lock out, that their employment contracts do not allow them to work for reward for other employees. Such restraints are rarely implied into contracts of employment and we just haven't seen any evidence of that before us this morning. Mr Addison did draw us to the decision in FH Transport v TWU. After receiving it this morning, you have had a look at it. We notice another interlocutory injunction of a single member of the Federal Court.

PN199

The important thing about it is that it's directed towards the scheme of the Act as it existed prior to 27 March 2006. As his Honour states on page 7, which Mr Addison drew us to, it talks about section 170ML(2) and that giving immunity from liability. It talks about, and I'll quote, "Yet the subsection was intended only to protect the union where it takes action in the context of negotiating a division 2 or 3 of part 6B agreement and then only where it takes that action for the purpose of advancing specific negotiations."

PN200

The specificity of the reasoning there by his Honour gives us an indication that we should examine the specificity of the Act as it now stands. Helpfully a Full Bench of the Commission has recently dealt with the issue of exclusions from protected action. If I might just hand up a copy of the decision in Heinemann Electric which was at the Full Bench of Giudice, J, SDP Lacy and Commissioner Simmonds, on 6 October 2006.

PN201

Specifically if I can draw your Honour's attention to paragraph 18. This decision was partially in respect of exclusions from industrial action. At paragraph 18 the Full Bench states:

PN202

The matter is put beyond doubt however by the fact that there is an entire subdivision of division 3 protected action specifying the circumstances in which industrial action ...(reads)... Clearer indications of such an intention would be required than those relied on by the appellant.

PN203

Similarly before us this morning, your Honour, and this afternoon, you have been asked to draw an inference that - or imply in the scheme of the Act that there is a preclusion on, during the protected action, an employee mitigating their loss by taking some other paid employment. There is simply no such limitation. The decision of the Full Bench should give us comfort that the scheme of the Act is the scheme of the Act and that if the legislature had intended to exclude from protected action those employees who engage in other work during the period in which they might be locked out, the legislature would almost certainly have provided for it.

PN204

If I can move on further to the other reasons why the employer alleges or asserts that there is no protected action in terms of the strike action. Well, it goes to something else. It goes to alleged industrial action at two separate sites, which Mr Elliott has attended or learned of the circumstances of. That is the extent of his evidence at paragraphs 9 and 10 of his witness statement. I don't think he added anything specifically to that this morning. What we have there is an assertion of industrial action. We have evidence that Mr Elliott told persons at a site that they were engaging in a secondary boycott, but that is the only mention of a secondary boycott in any of that evidence.

PN205

What we have there is evidence that Mr Elliott was told not to unload. There is no evidence of why or why not Mr Elliott was told not to unload. Further we have the involvement of the management of the site in respect of paragraph 10 where Mr Elliott states:

PN206

Approximately three to four hours I was told by Loy Yang stores management to take the parts to an off site location and unload it there and that the parts would be collected later.

PN207

Firstly, we haven't had any evidence that there is any industrial action being undertaken. Secondly, to the extent that any could possibly be implied, we would say that a similar inference should be drawn from the evidence before us that there may well be authorisation of any action that occurred at that site. We submit that it simply does not meet the test of industrial action under the Act. With respect to the RTL secondary boycott action evidence we note further the hearsay nature of that evidence. As Mr Elliott says, he was informed - Mr Elliott was informed by a yards manager who told Mr Elliott that he had been contacted by a shop steward from Silcar who had informed him not to do pick up or any deliveries from MEC.

PN208

Now, there are a number of problems with that if the allegation of secondary boycott action is to be made. Firstly, we have no evidence directly of either the yard manager or who this shop steward, Silcar, might be. We have no evidence of whether or not - there is no evidence of the reasons why the yard manager was informed not to do any pick ups or deliveries from MEC. We simply do not have any evidence to draw any inference that there is industrial action undertaken there. Again, we have not seen any evidence of whether or not there was authorisation for such action by management.

PN209

Even if it were the case that the Commission were able to draw an inference that industrial action occurred at either of these sites, the second problem, we submit, for the employer's case is the allegation that such industrial action would be in concert with the industrial action at MEC. The leading authority for this is the case of Jay Corp. I'll just turn up the reference, your Honour. I've extracted a short portion of it. I might hand that up. The reference is Jay Corp v Australian Builders Labourers Federation and others 1992 111 ALR 502. It's also at 44 IR 2640. What we see at paragraph 84 is that:

PN210

The notion of engaging in conduct in concert with another involves knowing conduct, which is the result of communication between the parties and to simply simultaneous actions occurring spontaneously. ...(reads)... and community of purpose.

PN211

His Honour goes on to say, "The requirement of contemporanity does not mean that the acts constituting the relevant conduct must coincide precisely with the notion of concert." I won't go through any further of that reference but the rest of that page, paragraphs 85, 86 and 87 also goes to the understanding of in concert, both under the Trade Practices Act and as has been used under the Workplace Relations Act.

PN212

A further reference can be found in the case of Tillmans Butcheries Pty Ltd v AMIEU, that's [1979] FCA 85; 1979, 42 FLR 331 at 337. There Chief Justice Bowen noted the meaning of the term "in concert" and his Honour said, "Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously." That case was cited recently before the Federal Court by Justice Wilcox in FSU v ANZ 2002 FCA 631.

PN213

Sir, what we have there is that there must be a temporal relationship, sufficiently close to be said to be in concert. What we have before us is evidence that people in the Valley are aware that there is industrial action at MEC. We've had evidence from Mr Dodd that certainly he's told other members he represents that there is industrial action at MEC and that they should support that, whether financially or otherwise. That does not lead to an incitement to take industrial action even if industrial action were able to found in these circumstances. We simply do not have the evidence of that before us. All we have is the hearsay evidence of Mr Elliott that at two different sites, for some reason, he had difficulty dropping off or picking up equipment relevant to his business.

PN214

So we say these authorities distinguish clearly from the situation before us. There is simply no evidence of actions being in concert. We say that is only relevant is the actions were industrial action, and again we don't have industrial action. If I can move on then from the 496 application to the 432 application before you, your Honour. Section 432 is new, as we know. I don't believe there's been a decision on it as yet, post 27 March. So the first place we should start of course are the words of the Act.

PN215

The Commission is instructed to by order suspend the bargaining period and we do note your Honour's difficulty with whether or not unprotected industrial action could be said to exist should the employer's 496 application be made out. We'll go further to that later. 4321 says that a negotiating party may apply, which they've done. Secondly, that (b) protected action is being taken, and that's perhaps a point of contention.

PN216

THE SENIOR DEPUTY PRESIDENT: But you say it is?

PN217

MR MCCAULEY: We would say it is, yes. It depends whether or not the 496 is made out. So, yes, we say the protected action is being taken, so then we must turn to section 4321(c), because the Commission there must consider the suspension is appropriate and must have regard to whether suspending the bargaining period would be beneficial to the negotiating parties because it would assist in resolving the matters at issue. Secondly, and the duration of the action and (3) whether suspending the bargaining period would be contrary to the public interest for the inconsistency of the objects of the Act and (4) any other matters the Commission considers relevant.

PN218

What we see from the evidence of Mr Elliott in his witness statement and what he was drawn towards this morning is that the implications of the period of bargaining for the revenue of the employer and for the other employees of the employer are sourced back to the lock out of the employer. If we can just paint this temporal picture. There were low level bans. The employer decided to lock their employees out for three months. Some six to eight weeks later they decide to end that, first, for some employees and then for all employees. A strike at notice was given for a week. One week the employees have been striking. The implications of the industrial action or any industrial action for the employer can be sourced almost entirely back to the actions of the employer and we submit that should be in the forefront of the Commission's mind in determining whether a 432 application is made out here.

PN219

We see Mr Elliott's evidence at paragraph 11, "The lock out of employees has now been in placed for more than six weeks. As a consequence of the lock out we have suffered considerable financial loss." It is clear that the consequences are of the employer's own making. What we have here is a bargaining period. We have industrial action. We have a strike for one week. We have the employer saying that their lock out for six weeks could influence whether that bargaining period should be suspended. If it were the case that the scheme of the Act were such that an employer could act in such a - I hesitate to say - a manner without good faith, but in such a way in that they could manipulate the scheme of the Act so that a bargaining period could be rendered meaningless and would be simply subject to a cooling off period whenever the employer decided to end their lock out.

PN220

We say that the scheme of the Act would be frustrated, and that's relevant to your Honour's considerations. If we look at subsection (3) it talks about being contrary to the public interest and inconsistent with the objects of the Act. The objects of the Act include - I'll just briefly go to section 3 - "Assisting in giving effect to Australia's international obligation in relation to labour standards and balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriate deal with illegitimate and unprotected industrial action." We have protected industrial action. We have a minimal amount of protected industrial action and yet what the employer is seeking here is to remove that right from employees, and it's important to note that employees have a right to strike in many conventions which Australia has ratified.

PN221

It is those international obligations which section 3(n) is directed towards. Assisting and given effect to Australia's international obligations. It would be contrary to that to frustrate such a right by simply ending the bargaining period after a week of a strike. Further to the application with respect to section 432, the employer in their grounds has noted at paragraph 6 that the action is not authorised by the ballot. "The employer has informed the employees that he wishes to enter a return to work. The employees have subsequently imposed indefinite strike action. Such action is not authorised by the ballot."

PN222

Firstly we draw your attention to the sequence of events in which the strike action was imposed three days before the lock out ended. Secondly, such a responsive industrial action is not required to be authorised by any ballot. That is the scheme of the Act. We can see that in section 445(e). It's an either/or. "Action is not protected unless the action is in response to industrial action by the employer against employees whose employment will be subject to the proposed collective agreement, or the action has been authorised by a protected action ballot." So it's simply not relevant.

PN223

Much of the further grounds of the employer with respect to their 432 application can be simply sourced back to the consequences of their own lock out. Again, we say that would frustrate the scheme of the Act, frustrate the employee's right to strike which is preserved by the scheme of the Act when the scheme is followed, which it has been here. The employer notes at paragraph 9 that the employer/employees and the union have continued negotiations for a replacement agreement. We say that's directly relevant to your consideration under section 432(c)(i). Negotiations have continued. They've continued while the strike was in place.

PN224

Simply what we have here is not that a suspension of bargaining period would result in some magic level playing field, is that the employer would again be placed in a superior bargaining position frustrating the rights of employees to match up with their bargaining position by taking industrial action. Again, the employer goes to their apparent awareness that employees proposing the indefinite strike action are being employed for award by other employers in the area. We've heard evidence that some employees have taken temporary employment mitigating their loss. Not all employees. We simply say again, relying on our submissions with respect to the 496 application that that is simply not a relevant consideration for the Commission. There is no such restriction on such action during protected industrial action.

PN225

If I can just have one moment. Yes, I should also note that there is a difficulty in saying that should the 496 application be successful, there is a difficulty in saying that bans are still in place. During a period of a lock out there is simply no capacity to do work. There is consequently no capacity to do work in a manner other than that in which it is ordinarily performed. So if we go back to the definition of industrial action there is great difficulty in having industrial action while you are not allowed on site and you are locked out.

PN226

So to conclude, your Honour, we note that the Commission is drawn to considerations of the public interest and the objects of the Act. We say in the scheme of the Act that what the employer is doing here is using their own actions to frustrate the legitimate industrial action of employees. We say a decision, a finding by the Commission that the employer would be able to do that under the scheme of the Act would certainly be contrary to the public interest, would undermine the entire Act, the scheme of industrial action in that Act.

PN227

We simply submit that it would be inappropriate for the Commission to find that it must by order suspend the bargaining period in the circumstances that we have outlined, in the circumstances we have before us. The employer is attempting to take advantage of their own deeds. Those are our submissions, your Honour.

PN228

THE SENIOR DEPUTY PRESIDENT: Ms Walters?

PN229

MS WALTERS: We support the submissions of the AMWU and have no further submissions.

PN230

THE SENIOR DEPUTY PRESIDENT: Mr Addison?

PN231

MR ADDISON: I'll be as quick as I can, your Honour.

PN232

THE SENIOR DEPUTY PRESIDENT: Just before you get into it, the CFMEU, you seek in both sets of orders against the CFMEU and their members, you might have to remind me, but I can remember making the ballot order in respect of the AMWU. Did I have a mainly ballot order in respect of the CFMEU?

PN233

MR ADDISON: Your Honour, my recollection, there are both CFMEU and the AMWU members at this workplace. My understanding is there are about three or four CFMEU members who would probably be crane drivers/riggers, I guess. But there certainly are CFMEU members employed. My understanding is that the CFMEU did engage in the ballot. That's my understanding, your Honour.

PN234

THE SENIOR DEPUTY PRESIDENT: Ms Walters, are you able to enlighten me on this?

PN235

MS WALTERS: Your Honour, I've sought to get instructions on that matter. I have been unable to do so and simply in relation to, yes, your Honour, I don't have instructions in relation to that at this point in time. However I can endeavour to do so on the Commission's volition.

PN236

THE SENIOR DEPUTY PRESIDENT: Well, as I understand it, the order they made in respect of the ballot, which was PR973747, only bound the AMWU, the ASC and Mechanical Engineering Services and the application in this matter in respect of suspension of the bargaining period only seeks to suspend one bargaining period being BP2006/2997 - - -

PN237

MR ADDISON: Which on a search of bargaining periods, your Honour, I'd suggest it's the only one in existence. I've got to say that.

PN238

THE SENIOR DEPUTY PRESIDENT: Right. So there's several questions that arise here. Yes, Mr Dargavel?

PN239

MR DARGAVEL: Not particularly, your Honour. As I understand it the small number of individuals in question are dual ticketed. I can undertake to - - -

PN240

THE SENIOR DEPUTY PRESIDENT: Sorry, are?

PN241

MR DARGAVEL: Are dual ticketed, I can undertake to resolve that on an evidentiary basis if it's at all required, but given that is the basis of my understanding, I wouldn't imagine that other questions arise.

PN242

THE SENIOR DEPUTY PRESIDENT: Okay. Well, the reason I raise it, amongst others, is that if there is industrial action being taken by CFMEU members, questioning the dual ticketing issue, but let's just assume for the moment it's industrial action by just CFMEU members, people who only belong to the CFMEU, then that needs to be taken during a bargaining period and so I probably need some submissions on what dual ticketing means, if that's accepted they are dual ticketed, as opposed to we need evidence on it.

PN243

MR ADDISON: I don't know that, your Honour. Certainly all employees, and we've got records of this, but we haven't produced those records today, but we have records of this, we ask all employees as to whether they would impose bans on not all employees replied in the affirmative. Now, we understand that all employees took part in the ballot process to authorise the industrial action. Now, it may be that there's an irregularity. I can't respond to what Mr Dargavel says. I just don't know, as a matter of fact. That's a matter that needs to be cleared up, though, clearly, your Honour.

PN244

MS WALTERS: Your Honour, if I may?

PN245

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Walters?

PN246

MS WALTERS: Pardon me, your Honour. If your Honour pleases, clearly this raises some serious issues and we seek to get some further instructions in relation to it and that may be a question of evidence before you. We'd seek at this point in time a short adjournment to make further attempts to get those instructions which may assist. The only issue we do raise is that there is currently no evidence before your Honour in relation to this matter.

PN247

MR ADDISON: Your Honour, just from your point of view we wouldn't oppose a short adjournment. In fact we'd probably think it was a very good idea from everybody's point of view to have a short adjournment with regard to the matter.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes, okay. I'll have a short adjournment. Paragraph 14, I just point out to the parties, of Mr Elliott's statement talks about the response of the union was to notify an indefinite strike. But anyway.

PN249

MR ADDISON: I would certainly put Mr Elliott in the box with regard to that matter.

PN250

THE SENIOR DEPUTY PRESIDENT: I've opened a can there. How long do you think you might need?

PN251

MS WALTERS: Your Honour, at the outset if we could have some 10, 15 minutes just to in effect facilitate working out whether we can actually get those instructions proper, your Honour.

PN252

THE SENIOR DEPUTY PRESIDENT: Okay. I'll adjourn until 3.30.

<SHORT ADJOURNMENT [3.16PM]
<RESUMED [3.34PM]

PN253

THE SENIOR DEPUTY PRESIDENT: Ms Walters?

PN254

MS WALTERS: If your Honour pleases, I've been unable to obtain those instructions. I do indicate that Mr Malone, who is the organiser for the area responsible is currently on leave. But we'd also further indicate though that, as currently before you, there is no evidence of the involvement of the CFMEU in the subject matter of the proceedings.

PN255

MR MCCAULEY: Your Honour, if I can just add, to the extent that we can, similarly we have not been able to obtain strict instructions or strict evidence of the status of the relevant employees. All we have before is that Mr Dargavel believes they are dual ticketed, the ability to obtain the union records, we'll require going to the Microfiche records and similar things. We can note that it is the culture of the Valley that many, if not most employees, are dual ticketed. They pick up work here and there in different multi-skilled areas.

PN256

In that context we also note that previously at this site, the CFMEU was not party to the previous EBA. They may not have even been aware that they had these members until they received these applications. So any inference that could be drawn at this stage should be influenced by Mr Dargavel's belief that they are dual ticketed, any relevant employees. With that in mind we reiterate again that there is no evidence of CFMEU involvement. That would be consistent with the employees being dual ticketed and any inference that is drawn by the Commission should be coloured by that.

PN257

Therefore in the context of what's happened, when we're mindful of timing restraints on the Commission, we submit on what's before the Commission that either the Commission could be satisfied by evidence probably by Monday. We also note that the application of the employer has not gone to this issue at all. Therefore if the Commission were to proceed to determine the issue, for example, simply the 496 and not the 432, given the relevance of timing, we submit that the 496 shall be determined and the 432 adjourned to a date to be fixed, given the ability to arrive at the evidence of whether these employees are dual ticketed or not.

PN258

If that were to be the case there is nothing to stop Mr Addison lodging a fresh application, given that he could turn to, if he wished to turn to this issue, in support of such an application, that we say should influence your Honour's determination of how the 496 proceedings here before you this afternoon should proceed. We would need to test any evidence there led in support of such a fresh application and we say that a fresh application would be the appropriate vehicle for such submissions, given that it hasn't been addressed at all until this afternoon. Those are our further submissions.

PN259

THE SENIOR DEPUTY PRESIDENT: Mr Addison?

PN260

MR ADDISON: These matters do arise from time to time and complicate everything. We've got reason to believe that they're not dual ticketed.

PN261

THE SENIOR DEPUTY PRESIDENT: They're not dual ticketed?

PN262

MR ADDISON: We've got reason to believe that, but I'm not going to stand here and mislead the Commission. I've taken instructions and I'm instructed that the company does assist a number of its employees in terms of directing funds to organisations and that a cheque sent to the FEDFA on behalf of four individuals each month. Those individuals do not appear on the list of individuals to whom we direct the cheque to the AMWU. Now, that leads us to believe - and I'm not saying Mr Dargavel is wrong. He may well be right, but from what we have, from our knowledge, we've got reason to believe that that's not the case, your Honour, and I need to be honest about that with the Commission.

PN263

Now, if that's the case that - - -

PN264

THE SENIOR DEPUTY PRESIDENT: But they voted in the - - -

PN265

MR ADDISON: Your Honour, we supplied, as was required of us, a list of all of the employees for the AEC. Now, as I understand the process, the union then confirms a list of its members and a vote is conducted. Now, we don't necessarily get the role as such, but certainly we have it with us today, we need to have a look, but from our knowledge all of the employees had an opportunity to vote. Whether they did or not is another matter, but from our knowledge all of the employees had an opportunity to vote which includes both AMW and the CFMEU members.

PN266

And certainly from our questioning of the employees, and we have a record of that, all employees indicated in the affirmative that they attended to impose the industrial action. So from there - we've acted in good faith from there. Now, clearly, it colours a whole range of things, but it certainly colours the whole argument about acting in concert. I don't need to repeat the submissions that the AMWU have made this afternoon as regard to that particular matter, but it would certainly enliven that proposition.

PN267

I don't know where you want me to go from there, your Honour.

PN268

THE SENIOR DEPUTY PRESIDENT: Just do your submissions.

PN269

MR ADDISON: Okay. Your Honour, I was going to be as short as I could. We say in terms of the matters that are before the Commission, there's uncontested evidence and we say that my friend's role in terms of saying there's no evidence of industrial action. I hear what my friend says about hearsay, and hearsay is a matter of weight for the Commission. The rules of evidence, as we know, don't apply in the Commission and the Commission is empowered to advise itself as it sees fit. We say that there is sufficient evidence before the Commission in conversations that Mr Elliott has had with RTL and from the conduct of the delegate at Loy Yang Mine on Wednesday for the Commission to be satisfied that industrial action is occurring in concert with the employees and MEC.

PN270

We say as such that that action is unprotected and should have an order issued against it. Now, your Honour, if I can concentrate on the 432 application. As has been said, I don't think a decision has been made on the 432 application, but, and I hear the submission of my friend, that the actions that the employer have brought about the circumstances, that may or may not be the case, your Honour, but in any event the section doesn't require necessarily that you take that into consideration. The section requires that the Commission must suspend the bargaining period. If, first of all, an application is made by a negotiating party, and we are a negotiating party and we have made that application and we seek that you suspend the bargaining period.

PN271

Secondly, whether suspending the bargaining period would be beneficial to the parties in the sense of resolving the issues between them. Your Honour, there's not much that either party could put in that apart from an assertion that it will or it won't be beneficial. From our point of view we say it will be beneficial. We say an absence of industrial conflict will be beneficial to the negotiating process and would assist the parties in reaching resolution of the matters between them. Thirdly, whether suspending the bargaining period would be contrary to the public interest.

PN272

Now, that's aimed at whether actually suspending the bargaining period would be contrary to the public interest or whether it would be against the objects of the Act. My friend has referred to the objects of the Act. There are other objects of the Act and matters that have been put before you in an evidentiary sense as to the consequences of not suspending the bargaining period here. If the bargaining period is not suspended, then there is a good likelihood that 50 per cent, or thereabouts, of the workforce, this workplace, through no fault of their own, will be out of work too and we simply direct your attention to object A and object K of the Act. Object A talks about how employment, and object K particularly talks about protecting young people in the labour market, promoting youth employment and youth skills and community standards, and your Honour, we say - and the Act says in any other manner that you may think is relevant.

PN273

We say that the future of 15 apprentices should be a matter that weighs on your mind. We say that the object of the Act are designed to promote through object K the welfare of those people and we say that that is a matter of some import in terms of where we're at and we would ask that you suspend the bargaining period. I don't intend to repeat anything I put earlier. They are our submissions, if your Honour pleases.

PN274

THE SENIOR DEPUTY PRESIDENT: I'll hand down a decision at 4.15.

PN275

MR DARGAVEL: Your Honour, there is just one thing in relation to submissions made by Mr Addison and that was the method of entry and payment of dues into the AMWU, as Mr Addison knows, is not just via EFT, that many of our members pay through collector's books or receipt books and Mr Addison has led evidence suggesting that funds are not permitted via EFT in respect of a small number of persons. We say that doesn't amount to anything. It's not uncommon for people to take two tickets and pay one form in one way and one form in another way and they often take the tickets in different forms for different purposes such as attending shops and other forms of work. If your Honour pleases.

PN276

THE SENIOR DEPUTY PRESIDENT: I'll hand down a decision at 4.15.

<SHORT ADJOURNMENT [3.47PM]
<RESUMED [4.30PM]

PN277

THE SENIOR DEPUTY PRESIDENT: I've reached a decision in these matters. In the matters, Mechanical Engineering Services Pty Ltd seeks orders under section 496 and section 432 of the Workplace Relations Act. I would deal with the section 496 order that has been sought first. Section 496 concerns orders that unprotected industrial action stop, not occur and not be organised. On the evidence before me it does not appear to me that unprotected industrial action by employees of MES at the Yallourn workshop or of Silcar at the Loy Yang site is happening or is threatened, impending or probable or is being organised. As that jurisdictional prerequisite for making a section 496 order does not exist, I decline to make the section 496 order sought.

PN278

I turn secondly to the section 432 order sought. Section 432 concerns an order suspending a bargaining period for a cooling off period. The bargaining period MES seeks to have suspended is BP2006/2997 which is a bargaining period between the AMWU and MES. I decline to order the suspension of the bargaining period because I do not consider that suspension is appropriate. Accordingly the MES applications in these matters are dismissed. I will issue reasons for decision in due course. I now adjourn.

<ADJOURNED INDEFINITELY [4.32PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANTHONY GORDON ELLIOTT, SWORN PN50
EXAMINATION-IN-CHIEF BY MR ADDISON PN50
EXHIBIT #A1 DRAFT ORDER UNDER SECTION 432 PN63
EXHIBIT #A2 DRAFT ORDER UNDER SECTION 496 PN63
EXHIBIT #A3 WITNESS STATEMENT OF ANTHONY GORDON ELLIOTT PN63
THE WITNESS WITHDREW PN73
STEPHEN WILLIAM JAMES DODD, AFFIRMED PN76
EXAMINATION-IN-CHIEF BY MR MCCAULEY PN76
CROSS-EXAMINATION BY MR ADDISON PN86
RE-EXAMINATION BY MR MCCAULEY PN135
THE WITNESS WITHDREW PN139