C2006/267, Transcript of Proceedings [2006] AIRCTrans 1261 (4 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16166-1

SENIOR DEPUTY PRESIDENT MARSH

C2006/267

COMMONWEALTH STEEL COMPANY LTD T/AS SMORGAN STEEL
AND
THE AUSTRALIAN WORKERS’ UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/267)

SYDNEY

3.00PM, TUESDAY, 21 NOVEMBER 2006

MR G HOLLAND: Yes, your Honour, I appear for the company.

MR A NEILSON: If your Honour pleases, I appear on behalf of the AMWU.

MS R MISFUD: If the Commission pleases, I appear for the CEPU.

MR G BEARD: If it please, your Honour, I appear on behalf of the Australian Workers Union.

MS L CHARLSON: Thank you, your Honour, I appear for the CFMEU.

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Holland, this is your application.

MR HOLLAND: Yes, your Honour.

MR NEILSON: Your Honour, perhaps before Mr Holland starts, can I note that the AMWU in particular, and I don't know about the other unions, I only just arrived, was not served with a copy of the application in accordance with rule 24 and rule 72. The only time effectively I was provided with a copy of the application was approximately five seconds before coming on to deal with this matter today and I haven't had an opportunity to read both the application and the orders sought, and certainly that would place the AMWU in a prejudicial position insofar as being able to defend the application.

MS MISFUD: If I may add, your Honour, nor has the CEPU been served and provided with a copy of the application. I only just received a copy when I asked the applicant when I arrived here this afternoon.

MR BEARD: Your Honour, the AWU is in the same situation with regard to the national office this morning.

MS CHARLSON: Your Honour, I might as well add, the documents were served to the Newcastle office of the CFMEU at approximately 11 am this morning. We were notified of that after lunch and a copy was sent through, and prior to that, Rita Mallia, who is the senior legal officer, contacted your associate and asked for a copy to be faxed across to her, which occurred.

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Holland, what do you say about that?

MR HOLLAND: Your Honour, the application was served by fax on the Newcastle offices of each of the unions this morning after I received notification of today's listing. I can indicate the times - - -

THE SENIOR DEPUTY PRESIDENT: Yes. I have it. Well, I haven't got that, I've got the fact of who was notified. What do you say about that, Mr Neilson, Ms Misfud and Mr Beard? Why wouldn't that be sufficient service?

MR NEILSON: Your Honour, the rules require that service be effected upon the individuals named in the application. The respective secretaries of the organisations are based in Sydney. My instructions to appear in this matter were conveyed to me in Wollongong earlier today, and obviously I made inquiries with our Granville office, as to whether or not the application had in fact been served so that I could pick it up on my way through to attending today. That was not done. We don't say that service upon our Newcastle office is sufficient service for the purposes of the rules, and in fact, on the notice of listing the applicant was made aware of the fact that he was required to comply with at least rule 24.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR NEILSON: It would appear that he hasn't done that.

THE SENIOR DEPUTY PRESIDENT: What do you say should happen?

MR NEILSON: The proceedings should be stood over, your Honour, until such time as we're given ample opportunity to obtain instructions in relation to the nature of the application and the order sought so as to be able to mount a proper defence to the application and the orders sought.

THE SENIOR DEPUTY PRESIDENT: Would there be any difficulty in hearing from Mr Holland then standing the matter over?

MR NEILSON: Perhaps there would be, your Honour. But perhaps my friends have some other views on that, but certainly we'd probably prefer for the matter to be dealt with at once.

THE SENIOR DEPUTY PRESIDENT: Well, I can't see how you're prejudiced by hearing from Mr Holland. In fact, he might be prejudiced by it not being heard at one time. What do you say, Mr Holland? It does appear you were required on the notification to notify the parties as per rule 24. The parties on the notification have not been notified.

MR HOLLAND: In my submission, your Honour, the parties, as referred to in the application and indeed the unions that are the parties to the applicable award, have been notified.

THE SENIOR DEPUTY PRESIDENT: But the parties notified of the listing are the parties set out in the application, I think that's where the complaint comes from.

MR HOLLAND: Yes.

THE SENIOR DEPUTY PRESIDENT: As we are required to do.

MR HOLLAND: Yes. Your Honour, I can indicate that I had a - - -

THE SENIOR DEPUTY PRESIDENT: We don't always notify branches.

MR HOLLAND: Yes. I did have telephone conversations with representatives of the AWU, the AMWU and the CEPU, and no objection was raised at that time. They were telephone conversations this morning. I was unable to contact a representative of the CFMEU. I might add, your Honour, that I was taken by surprise when I received the notice of listing as well, not expecting that it would be listed so early.

THE SENIOR DEPUTY PRESIDENT: Well, we are required to list the matters and issue interim orders within 48 hours of receiving the application.

MR HOLLAND: Yes, your Honour. I'm aware of that. I am aware of that.

THE SENIOR DEPUTY PRESIDENT: So it had to be listed - I received it last night at 1712. There's an obligation to have the matter finalised by, at least to the extent of interim orders, 5 o'clock tomorrow afternoon. If you felt it was too soon, you were at liberty to seek an adjournment, which you did for one hour, to have it on tomorrow.

MR HOLLAND: Yes, your Honour.

THE SENIOR DEPUTY PRESIDENT: That doesn't overcome the fact that the wrong people have been notified. I am aware that you have travelled down from Newcastle, and I am concerned that that's inconvenient if I do stand it over, but do you want to proceed to put your submissions?

MR HOLLAND: Yes, your Honour.

THE SENIOR DEPUTY PRESIDENT: I think we should proceed on the basis that we hear Mr Holland's submissions, and then in light of them, an application for an adjournment can be renewed. The alternative is that I adjourn for some time this afternoon and we come back later on today. Would that be a preferable course of action?

MR NEILSON: Perhaps if we can listen to what Mr Holland has to put - - -

THE SENIOR DEPUTY PRESIDENT: Yes. That's what I thought, in light of what he says. There's just one other thing I should raise, and I was not going to raise it at the outset, but maybe I should, and that is without hearing from you, Mr Holland, it's not unusual with these sorts of matters that the parties enter into some arrangement with respect to delegations and making up work and those sorts of things. I don't know whether any discussions have taken place, or whether there would be any merit in holding discussions to explore that sort of avenue?

MR HOLLAND: There may well be, your Honour. I can't speak for the other parties.

THE SENIOR DEPUTY PRESIDENT: What do the unions say about that?

MR NEILSON: Your Honour, I don't have any instructions in relation to delegations or whether that's been discussed.

THE SENIOR DEPUTY PRESIDENT: Yes. But you understand what I'm saying?

MR NEILSON: I do, yes.

THE SENIOR DEPUTY PRESIDENT: I mean, you understand the nature of the Act in terms of issuing orders?

MR NEILSON: I do, your Honour. Yes.

THE SENIOR DEPUTY PRESIDENT: I'm speaking to all of you. Yes. So it may be at an appropriate time you could get instructions on entering into a conference to discuss that sort of approach to resolving the foreshadowed issue. The unions, I'm speaking to you, all of you. Would that be appropriate?

MR BEARD: Yes. Your Honour, on behalf of the AWU, we wouldn't have any problems in that regard, in having discussions.

THE SENIOR DEPUTY PRESIDENT: Okay. Is it appropriate we hear from Mr Holland and then take it from there? All right. Mr Holland?

MR HOLLAND: Thank you, your Honour. Your Honour, the company and the unions are parties to the Smorgon Steel Group, Reinforcing and Steel Products Division, Manufacturing and Grinding Media Waratah Award 2006. That award took effect on and from 24 February this year, your Honour, and remains in force until 30 September 2008. Your Honour, on Friday of last week, the company received information from three separate and reliable sources that there was proposed a mass stoppage of work for 30 November and then attendance at a public rally which has been organised in Newcastle. Your Honour, the company submits that the planned stoppage of work constitutes industrial action within the meaning of the Act an as such, is prohibited under section 494.

Accordingly, your Honour, the company seeks orders as requested to prevent the proposed industrial action from taking place. Those are my submissions, your Honour.

THE SENIOR DEPUTY PRESIDENT: Are you going to lead any evidence as to the sources of your information?

MR HOLLAND: Well, your Honour, the difficulty I have is that if I were to disclose the identity of those sources, it would in my submission be a breach of the confidentiality that was requested from the sources who disclosed the information. They, each of them, are members of one or other of the unions and the parties to the award and on that basis, your Honour, I am not at liberty to call evidence which would result in a breach of that confidentiality.

THE SENIOR DEPUTY PRESIDENT: Mr Holland, I am not sure how I can be satisfied that industrial action is threatened, impending or probable on the basis of not having that evidence before me.

MR HOLLAND: Your Honour, I am prepared to give evidence under oath that I was the person to whom that information was disclosed, but I would not be at liberty to disclose the identities of the persons who provided that information.

THE SENIOR DEPUTY PRESIDENT: I'll hear from the unions.

MR NEILSON: Your Honour, perhaps can we have a five-minute adjournment, in light of what Mr Holland has put?

THE SENIOR DEPUTY PRESIDENT: Yes.

MR NEILSON: I think what he has put might affect how we think the discussion procedure - - -

THE SENIOR DEPUTY PRESIDENT: Pardon?

MR NEILSON: I think what he has put might affect how we think that this case should proceed, your Honour.

THE SENIOR DEPUTY PRESIDENT: All right. Have you any objection to that, Mr Holland?

MR HOLLAND: No, your Honour.

THE SENIOR DEPUTY PRESIDENT: Would it be possible to perhaps get - I'll leave it at that at this stage. All right. Thank you. We will adjourn for a few minutes, thank you.

<SHORT ADJOURNMENT [3.11PM]
<RESUMED [3.16PM]

MR NEILSON: Your Honour, the unions have had the opportunity to have a discussion in relation to the submissions that have been put by Mr Holland. We don't think that on the basis of those submissions that an adjournment will be necessary. We intend to make a submission that the application should be dismissed on the basis that the Commission cannot be satisfied that the jurisdictional prerequisites of section 496 have indeed been satisfied. We note that the applicant to the proceedings bears the onus of demonstrating that industrial action is in fact being engaged, organised or is impending, threatened or probable and we say that, clearly, on the basis of the submissions of Mr Holland, which we don't accept, that the Commission cannot be satisfied in lieu of his failure to call any evidence to demonstrate or to substantiate the allegations that he put at the bar table, that therefore the application under section 496 must be dismissed.

Those are the only brief submissions that we make, your Honour, and it's on that basis that we wouldn't see an adjournment as being strictly necessary. If it please.

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything else from the unions? Yes, Mr Beard?

MR BEARD: Yes, just briefly, your Honour. In fact, due to the improper service of the documents, it may be an opportune time for the company to redo the matter properly, if necessary at this stage.

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Holland, what do you want to say?

MR HOLLAND: Your Honour, the only submission I can make is that I would request an adjournment to enable me to determine whether or not I am in a position to call evidence in support of the application. I haven't had the opportunity to fully speak to the sources of my information. It may well be that I can persuade one or more of them to be available to give evidence, and I request that opportunity, your Honour.

THE SENIOR DEPUTY PRESIDENT: Yes. The difficulty with that is that I have a time constraint, a mandatory time constraint, so the matter would have to be re-listed tomorrow. Otherwise, you could withdraw the application and reapply, but as I said when I brought the matter on, because we are required to issue orders, interim orders, within 48 hours after the application is made and there's no discretion there, and at this stage I am not inclined to issue interim orders, particularly in light of the fact you have asked for an adjournment; so what is your preference?

Is your preference to seek an adjournment and have the matter re-listed tomorrow, or is your preference to refile and to serve the unions correctly, if the evidence that I have required to be satisfied, that I have the jurisdiction to issue the order. Once I have that jurisdiction I must issue the order, so I have to be certain that the jurisdiction is there because it is a mandatory step, but only on the basis of satisfaction as to jurisdiction. So what is your preference?

MR HOLLAND: It might be better, your Honour, if I refile.

THE SENIOR DEPUTY PRESIDENT: Yes. I think that might put it beyond difficulties of having to issue interim orders tomorrow afternoon. I think if you note what has been said about the service and the fact that thus far I have only hearsay evidence in front of me which the unions have rejected, and the fact you have asked for an adjournment, that it is probably more practicable to withdraw this application and refile in due course.

MR HOLLAND: Yes.

THE SENIOR DEPUTY PRESIDENT: If the parties could also bear in mind that if there is any intention to attend any rallies or whatever on 30 November, that there may be some arrangements put in place, but that's a matter for the parties, rather than orders having to be issued in due course. But that's down the line. So would that be appropriate, if the application - you are seeking to, what, dismiss the application? That I dismiss this application and withdraw it, with the ability to reapply later on if you wish to?

MR HOLLAND: We would certainly be refiling, your Honour, there's no doubt about that.

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Obviously once you refile - well, it will be a fresh application.

MR HOLLAND: Yes.

THE SENIOR DEPUTY PRESIDENT: A fresh application, let's make that clear. So this application is dismissed for the reasons given, and certainly it will be brought on at short notice in light of the statutory requirements. All right? Thank you. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [3.22PM]