C2006/3320, Transcript of Proceedings [2006] AIRCTrans 1239 (29 November 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16110-1

COMMISSIONER LARKIN

C2006/3320

HYDRO ALUMINIUM KURRI KURRI PTY LTD
AND
THE AUSTRALIAN WORKERS’ UNION
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/3320)

SYDNEY

11.10AM, TUESDAY, 14 NOVEMBER 2006

PN1

THE COMMISSIONER: Could I take appearances, please.

PN2

MS R BERNASCONI: I seek leave to appear on behalf of Hydro Aluminium Kurri Kurri Pty Ltd with MR P NAYLOR, human resources manager and
MS T ROSS, solicitor with Blake Dawson Waldron.

PN3

MR G BEARD: I appear on behalf of the Australian Workers Union.

PN4

THE COMMISSIONER: You are seeking leave, Ms Bernasconi?

PN5

MS BERNASCONI: Yes, I did seek leave, Commissioner.

PN6

THE COMMISSIONER: Yes, I thought so. Mr Beard, do you have a view on that at all?

PN7

MR BEARD: Under the circumstances, Commissioner, I have no objection.

PN8

THE COMMISSIONER: Thank you for that. Leave is granted. .My associate advised me that the parties have been having discussions prior to me coming onto the bench. Is there anything you wish to advise me, Ms Bernasconi?

PN9

MS BERNASCONI: No, Commissioner. I think Mr Beard was suggesting that perhaps we proceed immediately into conference. Our preference would be to put before the Commission the basis of our application and then to the extent that there's some benefit in going off record into conference, we can do that, but I'm not sure that anything that, based on what Mr Beard's instructions are, will lead to some other resolution of the matter, other than us pressing our application. We would be happy, once we set out the background to the matter, to go into conference if the Commission thinks that would be of assistance.

PN10

THE COMMISSIONER: Yes, thank you. Mr Beard, is there anything that you seek to put before me?

PN11

MR BEARD: Not really. The only thing I can say, Commissioner, is that I received the documents in regard to this matter late yesterday afternoon. I had a brief conversation with Mr Mark Stoker, the assistant secretary of our Newcastle branch. At that stage I hadn't had an opportunity to have a close look at the documents. I sought to contact him on three occasions this morning and haven't been able to do so. Unfortunately, at this stage, my instructions are not clear and I thought it may have been of benefit - I still think it may be of benefit to go into conference at some stage during this proceedings to see if there may in fact be an alternative method of alleviating the problems that raised this application. We're all very aware that applications under 496(1) are very serious and as I say I think it's fair and reasonable that we make every effort to try and resolve that situation probably those orders are made. If it please the Commission.

PN12

THE COMMISSIONER: What I might do is I might hear Ms Bernasconi's submissions. Mr Beard, if you seek then to put something on the record, please do. If you seek a period of time to get further instructions, then you can put that to me and I'll hear what Ms Bernasconi has to say about that.

PN13

MS BERNASCONI: Thank you, Commissioner. Yesterday on behalf of the company we filed an application for orders under section 496(1). The basis for the application really is what we say is a threat by employees for organisation of industrial action by the AWU at the company's Kurri Kurri smelter. If I could hand up, Commissioner, the letter which is referred to ground E of our application. Commissioner, this is a letter dated 31 October 2006 from
Mr Mark Stoker, the assistant secretary of the AWU on AWU letterhead to Mr Naylor of the company. It refers to the day of community protest which has been organised by various unions in Unions New South Wales on 30 November 2006.

PN14

The letter clearly states that the union is proposing to hold a series of pre-shift meetings to put recommendations to the members and we say that the threat is in the last line of that second paragraph that if those recommendations are carried, a stoppage will be from 7 am on 30 November until 7 am 1 December. Those
pre-shift meetings have not yet been held. I'm instructed that following receipt of that letter on or around 31 October from Mr Stoker of the union, the company arranged a meeting with Mr Stoker on 6 November to discuss the contents of that letter and the company's concerns about the threat that was in that letter were raised with the union.

PN15

One alternative which was raised, which in a general sense was that the usual process for meetings of this sort would be for a representative or representatives of the union to be released from work to attend the meeting, but that otherwise work would not be disrupted and this is the way that these similar meetings have been dealt with in the past. Mr Stoker indicated to the company that that was not a satisfactory outcome. The company indicated to Mr Stoker that it would need to take steps to protect its position, including two bring the application which is before the Commission today.

PN16

In terms of those submissions that I've just made, Commissioner, Mr Naylor was present at that meeting on 6 November and he's available here today to give evidence to that effect if required. However, we say that the letter in itself is sufficient evidence to ground an order under section 496. It's clear on the authorities of the Commission and in particular - and I can hand up a copy if necessary, Commissioner - the Full Bench decision of July of this year of the Transport Workers Union v TNT Australia Pty Ltd which is 154 IR 256. Would it assist the Commission to provide a copy of that decision? I have a copy.

PN17

THE COMMISSIONER: I might actually. I don't have the IR print.

PN18

MS BERNASCONI: I'll hand up a copy, Commissioner. Commissioner, on page 259 at paragraph 9 the Full Bench makes it clear that what is necessary to attract the Commission's jurisdiction is that it appears to the Commission that industrial action by employees that is or would not be protected is happening, threatened, impending or probable or being organised. Once one of those conditions is fulfilled the Commission may make an order which has a rational or logical tendency to stop or prevent the industrial action and/or its organisation.

PN19

We say that the letter of 31 October constitutes the AWU organising industrial action. It also constitutes a threat by the AWU on behalf of the relevant employees threatening industrial action in respect of work carried out by the employees. The work which is performed by employees is covered by the Hydro Aluminium Kurri Kurri Pty Ltd Enterprise Agreement 2004 which is AG837502. It came into force on 16 November 2004 and does not expire until 15 October 2007. Accordingly, that agreement is within its nominal term and we say that any industrial action which was to be taken as threatened in the letter on 30 November to 1 December would not be protected action under the Act and if that action occurs it would be in contravention of section 494 of the Act.

PN20

For those reasons, Commissioner, we say that the Commission ought be satisfied that industrial action is being organised by the AWU and/or is being threatened by employees of the company and we press that orders in the form set out in our application be made.

PN21

Commissioner, in terms of the orders which are sought, they are restricted to employees of the company who are members or eligible to be members of the AWU and who are covered by the agreement. The orders are directed to ensuring at paragraph 4 that the AWU - the orders are set out there, but essentially that they stop and not organise any restriction of employees attending for and performing work, not organise or authorise employees to engage in industrial action, immediately advise their delegates and the employees that any such action is not to take place and in respect of employees at 4(b) that employees must not engage in or threaten to engage in industrial action.

PN22

In terms of the term and date of effect, we have only sought that the orders cover the period of the threatened stoppage which is referred to in the letter which is 30 November and 1 December and that the orders would expire thereafter. We say that the orders themselves are sufficiently limited and in accordance with the TNT decision, are orders which have a rational or logical tendency to stop or prevent the industrial action and/or organisation which is occurring.

PN23

THE COMMISSIONER: I'm sorry just to interrupt you there. The date of effect of the order, what do you say the date of the effect of the order should be, Ms Bernasconi?

PN24

MS BERNASCONI: Commissioner, that should be today's date. It was left blank simply because we weren't sure which date it would be listed on.

PN25

THE COMMISSIONER: To remain in force until the 2nd?

PN26

MS BERNASCONI: That's correct. Commissioner, those are our submissions. As I say if the Commission requires further evidence Mr Naylor is here. We say that it is not necessary but if it is, please let us know and those are my submissions unless you have any further questions, Commissioner.

PN27

THE COMMISSIONER: You don't know what date the pre-shift meetings have been planned to occur?

PN28

MS BERNASCONI: No, Commissioner, and in terms of the pre-shift meetings, they themselves would not constitute industrial action, being pre-shift meetings, but no, we have not been advised even when those meetings have been arranged for.

PN29

THE COMMISSIONER: Yes, thank you. Mr Beard.

PN30

MR BEARD: Thank you, Commissioner, I explained earlier, unfortunately I haven't had the opportunity to have discussions today with Mr Stoker in regard to this matter, however, on the surface it seems to me that the seriousness of section 496(1) orders in this particular matter mean that we do need to have a look at the specifics of the application and ensure that they do in fact meet the requirements of 496(1).

PN31

496(1) goes to events that are happening. Well, obviously, industrial action isn't happening at this stage. The company is saying that it's threatened or impending or probable or is being organised. In the company's application, the grounds upon which this application is made at (e) it states that:

PN32

The AWU has advised the company that it is proposing to recommend to employees to take industrial action.

PN33

In the letter of 31 October that Mr Stoker forwarded to Mr Naylor I understand that this letter says that the union intends to hold pre-shift meetings with the employees to put Unions New South Wales recommendations to our members. On the face of it I don't see where that is actually organising industrial action. It would seem to me that it is in fact advising members of the situation and then the members would have the opportunity of taking that matter further if necessary.

PN34

THE COMMISSIONER: You say that's not organising. I just want clarity of the submission.

PN35

MR BEARD: That's correct. Commissioner. These meetings that are set out in the letter from Mr Stoker of 31 October advise that they are before shift, that I see it more in terms of advising the members of the current situation in regard to the day of community protest concerning the Work Choices legislation. If in fact those meetings have taken place and the employees had voted to endorse the recommendation from Unions New South Wales and to participate in that day of community protest and not go to work, well, obviously that would be a different situation entirely to what we have at this present stage.

PN36

I think at this stage, Commissioner, because of the uncertain nature of - I find the uncertain nature of whether this industrial action will actually take place or is being organised or whatever, it's something that it's in the future. Whilst it's in the near future, I believe that the maturity of the industrial parties with the help of the Commission may in fact be able to, as I said before, find a solution to this issue prior to orders of 496 being issued. As I say the circumstances at this stage, I believe, don't warrant those orders being issued, however, I understand the situation where the company is looking to to have the protection, that things aren't left until the last minute because we do not in fact know when the pre-shift meetings are to be organised. There may be another way that the company will in fact ensure that the workers do not embark on industrial action as they are covered the current enterprise agreement. We do have the time to address this issue. If the Commission pleases.

PN37

THE COMMISSIONER: In that regard, Mr Beard, then you seek that we go into conference. I think that's what you're putting to me.

PN38

MR BEARD: Yes, I probably should make that quite clear that that was the stance at the start of my initial submission, Commissioner. I continue - put it much clearer, I suppose, than yes, we would ask that we go into conference. The company has put forward that they want to put their position, which is fair enough. I think going into conference would be of assistance. Thank you.

PN39

THE COMMISSIONER: Anything further, Ms Bernasconi?

PN40

MS BERNASCONI: Commissioner, I just would like to on the record just respond to a couple of points and then I'm happy to go into conference. In relation Mr Beard's submissions we say that the effect of the letter of 31 October is to advise the company that the union is organising meetings of employees. The purpose of the meeting is to put recommendations to the members. It is not clear from the letter what those recommendations are but it is pretty clear that if the recommendations are carried, the outcome will be a stoppage. The implication is that the recommendation is a stoppage from 7 am on 30 November until 7 am on 1 December.

PN41

We say that is clearly sufficient grounds to satisfy the Commission, or for it to appear to the Commission that industrial action is being threatened or organised. Mr Bear's submission that the fact that that hasn't happened yet and it may happen in the future, we say that can't possibly be the test that is intended by section 496(1) in circumstances where we are clearly on notice of a threat of this sort and it can't be said that what we should do is wait and see once the meeting is happening, what the outcome of that is. Our orders are directed to the union to ensure that no such recommendation is put to employees and that no such action is further organised and for employees to cease threatening and not to take industrial action.

PN42

Again we say that the test in 496(1) is that the jurisdiction, if it appears to the Commission that one of those preconditions are satisfied, then we say that the Commission ought be so satisfied. In relation to the timing, again the Commission must hear and determine the matter within 48 hours of the application being filed.

PN43

Finally, Commissioner, if in terms of addressing this point about the union organising industrial action, there is a decision, and I don't have a spare copy, but it's a decision of the Full Bench in Australia Post v CEPU which is PR974241. That was an appeal from orders issued by Commissioner Foggo in relation to the previous national day of action. The Full Bench actually overturned the orders, however, it is quite instructive about how to, I suppose, approach the question of whether the union is in fact organising industrial action or not and we would say that if the Commission - I'm happy to go into more detail if it's necessary to address that.

PN44

Finally, Commissioner, Mr Beard is seeking to rely on what he says is some uncertainty about the intent of the letter of 31 October. The union was clearly put on notice from our application that it would be relying on the letter from Mr Stoker to the company of 31 October 2006. We rely on that letter. We have Mr Naylor here to give further oral evidence about subsequent discussions about the content of that letter if necessary. The union, for its own reasons, has not brought Mr Stoker here today to deal with the matter and that's a matter for the union. However, we say that that can't be now held against us in terms of what the intent of that letter is. Those are my submissions, Commissioner, just for the moment.

PN45

MR BEARD: Excuse me, Commissioner, please put on the record that Mr Stoker would have been here apart from business that he had to attend to in Newcastle and it wasn't a situation where he didn't want to be here or ..... that. He just can't be in two places at once.

PN46

THE COMMISSIONER: Thank you, Mr Beard, I'm aware of that. My associate has had discussions with Mr Stoker from the union and also Ms Bernasconi yesterday when the application was delivered so I'm aware of that situation. I don't take it to be any disrespect on Mr Stoker's behalf for the Commission or for the Commission's processes.

PN47

If there's nothing further I think we will adjourn into conference and we'll see where we go from there.

<SHORT ADJOURNMENT [11.35AM]
<RESUMED [12.07PM]

PN48

THE COMMISSIONER: We have returned to the record. I've had discussions with the parties in conference in an attempt to resolve the issue, but unfortunately it would appear that nothing has been resolved. It remains really, if there is anything further that Ms Bernasconi or Mr Beard you wish to place on the record, I will hear you.

PN49

MS BERNASCONI: Not from us, Commissioner.

PN50

THE COMMISSIONER: Mr Beard.

PN51

MR BEARD: Commissioner, I would just like to thank you for the opportunity of going into conference and further discussing the matter.

PN52

THE COMMISSIONER: Thank you for that. I've determined and my reasons will follow at a later date, that the order as sought will be issued. I'm satisfied on the basis of what's been put to me that the jurisdictional prerequisites do exist for the issue of the orders sought under section 496(1). I'm satisfied that in my view that industrial action is at the very least probable and I'm further satisfied that it is being organised. The basis of that view is on the basis of the material that's on the file, in particular the letter to Hydro from the union, the AWU on 31 October 2006 and the terms expressed within that letter. Furthermore, the Hydro site does have a history. If memory serves me correctly I think there has been previously three section 127 orders issued in relation to AWU members on that site and given my involvement with the Hydro site over a number of years, I'm satisfied, unfortunately, that the order should issue and that the jurisdictional prerequisites have been made out.

PN53

The order will issue possibly later this afternoon, tomorrow in the terms as sought and reasons for the issuing of the order will follow after the issuing of that order. If there is nothing further, Ms Bernasconi?

PN54

MS BERNASCONI: Commissioner, just one matter to just put on the record and for the benefit of the AWU and Mr Beard, that order 4(a)(iv) requires the union to write to the company by no later than 4 pm on 27 November to advise what steps have been taken in compliance with the clause, just to draw that to the union's attention.

PN55

THE COMMISSIONER: Yes. I think that particular provision was also considered by the Full Bench in the Australia Post matter and some comments were made in relation to that. Mr Beard, nothing further at all?

PN56

MR BEARD: Nothing further.

PN57

THE COMMISSIONER: Thank you for your attendance. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [12.11PM]