C2006/61, Transcript of Proceedings [2006] AIRCTrans 488 (30 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14530-1

DEPUTY PRESIDENT MCCARTHY

C2006/61

MONADELPHOUS ENGINEERING PTY LTD SOUTHERN CROSS ELECTRICAL ENGINEERING PTY LTD
AND
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.127(2) - Appln to stop or prevent industrial action
(C2006/61)

PERTH

10.29AM, THURSDAY, 16 MARCH 2006

Continued from 21/2/2006

Hearing continuing

PN431

THE DEPUTY PRESIDENT: Any changes to appearances?

PN432

MR A D LUCEV: If it pleases the Commission I now seek leave to appear on behalf of the applicants in this matter.

PN433

THE DEPUTY PRESIDENT: Leave is granted, Mr Lucev. Firstly, I'm sorry about the delay. The last advice we had was that there was a request that there be a video link to Karratha and therefore the appropriate room was booked on that basis and apparently that's not needed and therefore the change of rooms caused some delay. I think we left this matter at the stage where each of the unions had reserved their rights to cross-examine witnesses that had given evidence and also to present any evidence themselves and any submissions on a more fulsome basis and they said they'd had the opportunity to do on the previous occasion. So unless there's been any alteration to that status, that's the status I thought I'd left it at.

PN434

MR LUCEV: There certainly has been an alteration to that status, your Honour, and if I can put it in these terms. We were last here, I think, on 21 February. Since that time there have been a number of factual developments in relation to the matter and if I can just outline those briefly to you. Since 21 February 2006 employees of Southern Cross Electrical have continued to refuse to undertake drug and alcohol testing when that drug and alcohol testing has been directed to be performed by the resident mine manager.

PN435

As a consequence of that, certain of the Southern Cross electrical employees have been stood down from the project, and at least in one case, one of those employees has been found at work at another mine in the north-west. That employee, according to the evidence we intend to lead, had to do both a pre-employment drug and alcohol test and will also be subject to re-testing.

PN436

MR ELLIS: Your Honour, if I may, I'm just not quite sure of the relevance of the last statement. If an employee has left the employ of the applicant company and has gone somewhere else, whether he be tested or not be tested, I can't see what the relevance would be.

PN437

THE DEPUTY PRESIDENT: Yes, that's the way I'd view it, Mr Lucev.

PN438

MR LUCEV: Well, if I can go on and indicate to you further what we say are the changed factual circumstances are.

PN439

THE DEPUTY PRESIDENT: If you can confine it to this matter on this site, these employees at this site, I think that's the - and any circumstances that may have changed at this site relating to this matter, yes, if you can confine it to that, Mr Lucev.

PN440

MR LUCEV: With respect to employees at Monadelphous, various employees of Monadelphous have continued to oppose and refuse to undertake drug and alcohol testing during the period from 21 February to 8 March and various of those employees have been alternately stood down from the project and returned to point of hire or resigned.

PN441

MR EDMONDS: Sir, those comments still don't seem to be confining themselves to the application that exists before the Commission, which is an allegation that industrial action arose on 20 February 2006, that's the basis of the application in front of the Commission at the moment. Either that industrial action is continuing or that industrial action is ceased. If it's ceased, that's really the issue that needs to be put to the Commission today and the other factors about whether or not employees are complying with drug and alcohol testing, we say it's simply not relevant to the application which is in front of the Commission. It's a related issue, but it's not relevant to the alleged industrial action which occurred on 20 February 2006.

PN442

THE DEPUTY PRESIDENT: Mr Lucev, do you have any comment on that?

PN443

MR LUCEV: Yes, your Honour. We allege that the industrial action is ongoing and even on 21 February when we were here, we were dealing with industrial action on both 20 and 21 February 2006 and what I'm doing in the course of the submission that I'm presently making is, as I indicated at the outset, indicating to the Commission, the changed factual circumstances since 20 February in respect of which we would intend to lead evidence so as to put the Commission in a position to make an order in respect of what we say is ongoing industrial action.

PN444

THE DEPUTY PRESIDENT: The evidence you intend to lead, is that from those persons that have already given evidence?

PN445

MR LUCEV: Well, in part. We intend to lead evidence from Mr Dodgson, who I think last time was stymied by the video. We intend to lead evidence from Mr Ecker who gave some evidence last time, some evidence from Mr Wall who I don't think gave evidence last time, and some evidence from Mr Hill and that evidence, which we have reduced to writing, was served on the parties.

PN446

MR EDMONDS: Sir, if I could those changed facts and circumstances that Mr Lucev refers to have not been disclosed to us. I have received a witness statement which I only, some 75 pages long, received this morning, sir, prior to coming here and I haven't had an opportunity to go through it. I certainly haven't had an opportunity to take substantive instructions of the issues raised in this application.

PN447

So I'd say firstly that the changed circumstances that Mr Lucev refers to we say should be disclosed as an amended application or, indeed, as a new application, and further, that if they do intend to lead evidence of different factual circumstances and they do intend to go by the way of witness statements, then those witness statements should be provided to the parties or to the respondents with enough time to take instructions on them and enough time to read and digest the contents of the witness statements.

PN448

THE DEPUTY PRESIDENT: Mr Lucev?

PN449

MR LUCEV: With great respect, your Honour, if my friends weren't suffering quite so much from premature interjection they would hear the outline of what we say are the changed facts and circumstances. They would hear that I have an amended application to tender to you. They ought know that the various witness statements have been served on them. If there is an issue with respect to time and the necessity to obtain instructions, which always seems to be the case with these sorts of proceedings, strangely enough, then that's a matter that we can - - -

PN450

MR EDMONDS: Well, hang on, the reason why these things are in issue is because the applicant has provided the witness statements to us until immediately prior to attending for this hearing, so if there's a - - -

PN451

THE DEPUTY PRESIDENT: Mr Edmonds, I'll let Mr Lucev finish and if there's any need for you to respond to that, you'll be given the opportunity. I'm at the moment trying to establish what the status of this is so that the matter proceeds one way or another. I'd ask Mr Lucev to continue so that I can be informed of the status and how this can best be programmed to proceed.

PN452

MR LUCEV: And if the issue of service of the witness statements gives rise to an issue, that's a matter on which we would expect submissions to be made and we'll make submissions on that and your Honour will doubtless make a decision in that respect. So if I can then return to what we say are the changed facts and circumstances, the facts and circumstances since we were last here. Your Honour, as I indicated, various employees of Monadelphous have continued to oppose or continued to oppose and refused to undertake drug testing during the period from 21 February to 8 March and as a consequence people were stood down and returned to point of hire or resigned.

PN453

THE DEPUTY PRESIDENT: Mr Lucev, can I just interject there myself. What you're proposing is for you to recall some witnesses and call other witnesses today, is that what you're intending to do?

PN454

MR LUCEV: Yes.

PN455

THE DEPUTY PRESIDENT: And what have you provided to the unions here in respect of that intention?

PN456

MR LUCEV: My instructions are that Mr Dodgson's statement is provided by facsimile to the unions last evening prior to 5 pm. In respect of the other three witnesses, Wall, Ecker and Hill, I'm instructed that those witness statements were served on the unions this morning.

PN457

THE DEPUTY PRESIDENT: This morning, because this has been listed for some time, hasn't it?

PN458

MR LUCEV: It's been listed - I'm not sure when it's been listed from, but I know that it was a consequence of Mr Bull's departure from CCI, that events have arisen in that respect.

PN459

THE DEPUTY PRESIDENT: The last notice of listing I've got that was sent out was 3 March, I think. So it's been listed for a while. Yes.

PN460

MR LUCEV: So that's what we intend to do or propose to do, to call that evidence, and that's on the basis that we say that industrial action is ongoing. If I can return just to give your Honour a flavour of the - - -

PN461

THE DEPUTY PRESIDENT: Just a moment, before you do. Messrs Edmonds, Ellis and Maclean, that would seem to be in order, to proceed in that way. Whether you are then in a position to either cross-examine or make submissions or, indeed, be in a position to call your own evidence might be another matter. But do you have any issues with that manner of proceeding?

PN462

MR EDMONDS: I do, sir. If I could just say firstly, sir, that since receiving the notice of listing I have on numerous times attempted to contact the CCI, to contact Mr Bull who, as I mentioned, I was told that he had left. I then endeavoured - I was talking to Mr Stillman about the conduct of the matter, endeavoured to contact Mr Stillman a number of times until, not last evening but the evening before, I was told that Mr Dodgson had the conduct of this matter on behalf of the CCI and I haven't had an opportunity to contact him in relation to that and he's based in Dampier, is my understanding, sir.

PN463

So my attempts to contact the CCI to discuss the conduct of this matter have been unsuccessful due, I think, to them not quite running the matter on their behalf. I have certainly received no notice that the application is intending to be amended until Mr Lucev advised me of that a few minutes ago. I received a witness statement from Mr Dodgson at approximately 20 past nine, was when it was received in our office - sorry, 20 past five was when it was received in our office yesterday afternoon. I was the last person to leave the office yesterday and that was at 5 o'clock. So I haven't seen that statement till this morning.

PN464

I also haven't had an opportunity to take instructions on the content of that witness statement. I haven't had an opportunity to even read it fully. As for the alleged statements of Mr Wall, I think it was, Mr Hill and Mr Ecker, I have not seen those witness statements and I'm not aware of them being served on the CEPU. If the application is going to be amended we would simply not be in a position to respond to that today, to call any witnesses, to cross-examine anyone or even to really form a view as to whether the witness statements, which are being talked about, which I haven't received, to form any view as to whether they should be allowed to be tendered as evidence in this matter.

PN465

We would simply ask, sir, that this matter be adjourned, the applicant be directed to amend its application and provide a copy of its amended application and provide a copy of the witness statements to the respondents and the matter actually be listed at some point in the future to allow us to properly defend ourselves in this matter. If the applicant alleges that industrial action is ongoing, well, there is simply the matter that an interim order be issued in this matter. That was issued on 21 February 2006. Sir, if the applicant alleges that industrial action is ongoing, ie, that it didn't cease, then it's simply a matter of enforcement in the Federal Court, I would think.

PN466

THE DEPUTY PRESIDENT: Mr Ellis and Mr Maclean, is that the position that you both have?

PN467

MR MACLEAN: Yes. I certainly support the comments of Mr Edmonds. There is simply no need in my submission for this matter to proceed by way of ambush. The parties have been aware of the statements for some time. To make a fundamental alteration to the application and also to tender a number of witness statements, is quite a substantial number of documents, the morning of the hearing, in my submission, isn't consistent with fairness, and I would suggest by way of ambush. All the parties have been aware that the matter was listed today and there's simply no justification in my submission for this number of documents to be summarily lodged on our side of the table as of this morning.

PN468

Now, there are important reasons why witness statements are served on parties prior to a matter going to hearing. That is, to allow them the opportunity to view the material so they can, subject to hearing, to at least form a preliminary view as to whether those materials should be admissible in the hearing or not. So even in respect to the first stage of the hearing, simply giving evidence, in my submission, it's essential that the parties are made aware of witness statements prior to the hearing actually going ahead. We've simply had no opportunity to view these. So in substance it remains that we have not been served - or we've been served this morning, but it certainly doesn't put us in a position where we've been informed as to the substance of witness statements.

PN469

THE DEPUTY PRESIDENT: Mr Ellis?

PN470

MR ELLIS: I concur with the submissions of Mr Edmonds and Mr Maclean. However, I would like to suggest, sir, that in relation to the application before the Commission today, it's our view that you might want to give some thought to this missing application and inviting a further, fresher application. It's our view that the allegation of industrial action which occurred on about - which gave rise to the initial application has not passed. It's our view, Commissioner, there's no industrial action issues that are ongoing under section 27 which are capping ….. in our view the application before you today, the Commission has no jurisdiction to hear that application. That matter should be dismissed.

PN471

Then the applicant, it is suggested, that they bring a further fresh application which involves - - -

PN472

THE DEPUTY PRESIDENT: No, there's an interim order in place. Jurisdiction existed when the order was made, otherwise it wouldn't have been made, with a view that it was - just a moment. The purpose of the proceeding this morning is as to whether that order should be revoked or an order put in place of a non interim nature.

PN473

MR ELLIS: Indeed, that is our view, because of the facts which gave rise to the application which did occur in the jurisdiction of the Commission and has now lapsed and - - -

PN474

THE DEPUTY PRESIDENT: Well, it might be that there was one jurisdictional basis that existed then. It might be that there's another jurisdictional basis that exists now. Mr Lucev, do you have any response to - - -

PN475

MR LUCEV: Yes. It is interesting that you observe that, because that's precisely the point that I was endeavouring to get across, that there is, from our point of view, further facts and changed facts which still result in the Commission being seized of jurisdiction in this matter.

PN476

THE DEPUTY PRESIDENT: What do you say about the asserted or alleged ambush in the procedure this morning, Mr Lucev?

PN477

MR LUCEV: Well, there are two ways in which you can do these things. One, you can lead oral evidence and the parties don't hear it till the witness goes in the witness box, and one assumes that, properly instructed, the parties then proceed to cross-examine. I suspect what might happen today if we led oral evidence is we'd get the same line. We've got no instructions, haven't checked it, so it wouldn't make any difference in any event. We don't say that it's trial by ambush. I mean, it's not unusual in the circumstances of 127 in this place, the witness statements to be filed the evening before a hearing, the morning of a hearing or even during a hearing and for the Commission to adjourn for 15 minutes or half an hour or an hour for people to go away and get instructions on those particular statements.

PN478

THE DEPUTY PRESIDENT: They're not usually 65 page witness statements, though.

PN479

MR LUCEV: Well, that's, if I might say so, not an exact exaggeration but encompasses some hyperbole because the witness statements do have documents attached. Those documents are there to prove the existence, for example, of contracts between Hammersley and the contractors, they're there to prove that the site manager has certain rights with respect of Occupational Health & Safety and deals with certain health and safety issues on site. So while there might be a document of 20 pages, it's probably only one page which is relevant in some cases.

PN480

That said, I understand the point. We say it's not trial by ambush. It's simply the way in which these things are ordinarily conducted and we've endeavoured to get the witness evidence in shape to support an amended application. The amended application, I do have a copy which I can tender. It doesn't involve a significant change in the order sought for our purposes. If I can tender a copy of that. If I can indicate that substantively the change is in (a), (b), (c) and (d) of paragraph 3 and it's the addition of the words in (a), (b), (c) and (d), the last phrase, which is varied in each of them, "and/or refusal to undertake random drug and alcohol tests."

PN481

THE DEPUTY PRESIDENT: Sorry, where is that again?

PN482

MR LUCEV: Sorry, it's page 2.

PN483

THE DEPUTY PRESIDENT: Yes.

PN484

MR LUCEV: Paragraph 3, subparagraphs (a), (b), (c) and (d). It goes to the question of refusal of undertaking the random drug and alcohol test, which we say in itself is industrial action. Now, that's the substantive change to the industrial action to stop - the grounds have changed and I was endeavouring to put before the Commission before we had all the interjections, an outline of the facts which are put in the grounds and if your Honour looks from about paragraph 13 through to paragraph 22, in summary form, the grounds have been amended to deal with what has happened since the last time we were here, which founds the basis, we say, for the ongoing and amended application.

PN485

THE DEPUTY PRESIDENT: But if I do adjourn, Mr Lucev, what prejudice do you suffer?

PN486

MR LUCEV: Well, can I take some instructions on that?

PN487

THE DEPUTY PRESIDENT: Yes.

PN488

MR LUCEV: If your Honour doesn't mind, because the question of adjournment, which seems to have been in the minds of the respondents prior to any issue about the initial evidence and the amended application, or at least the dismissal of the application - - -

PN489

THE DEPUTY PRESIDENT: Well, it doesn't seem to me that that's the case from what's been said, but it might seem to you. It doesn't seem to me.

PN490

MR LUCEV: Be that as it may, your Honour, perhaps if I can just take some instructions on the question of what, if any, prejudice we suffer in the event that you do adjourn and the interim order remains in place.

PN491

THE DEPUTY PRESIDENT: Yes, and currently, I might add for the purpose of those instructions, Mr Lucev, and it might help, is that I am minded to adjourn. I'll adjourn in order that you can get those instructions and I'll reconvene shortly.

<SHORT ADJOURNMENT [10.53AM]
<RESUMED [11.08AM]

PN492

THE DEPUTY PRESIDENT: Mr Lucev?

PN493

MR LUCEV: Thank you, sir. It's our view that we do suffer prejudice by reason of having an adjournment of the matter. That prejudice includes the fact that employees have been stood down and the fact that there are additional costs incurred in the recruitment and relocation, training, induction, et cetera of new employees on this two billion dollar upgrade at the Dampier Port. We also suffer prejudice in that we have the four witnesses here today ready to give evidence. That latter prejudice in our submission could at least be part alleviated by getting their evidence in today, actually getting the witness statements in evidence and the unions might be reserving their rights to cross-examine or to object to parts of the contents of those witness statements and the witness could then be cross-examined and re-examined at a later date.

PN494

So we say that we do suffer some prejudice by reason of the adjournment, at least in part, suffer prejudice by the witnesses not being allowed to put their evidence-in-chief in today.

PN495

THE DEPUTY PRESIDENT: Yes, thank you. It's my intention to adjourn these proceedings. Uppermost in the proceedings of this nature in this commission is that all parties are afforded procedural fairness. So it's my view that it would be procedurally unfair to proceed this morning. Therefore I intend to adjourn the proceedings. The applicant will be required and is directed to provide any documents that it intends to rely on in any proceedings before me to the union respondents at least 24 hours before any further hearing. Any documents that it is intended to tender or provide today should be forthwith provided to the respondent unions.

PN496

It's my intention to list this matter again on Monday. I may not be in a position to change that date to accommodate anyone's availability. My timetable is fairly full at the moment. I'll adjourn on that basis. Yes, Mr Lucev, you wish to say something?

PN497

MR LUCEV: Sorry, this, sir, can we also seek an order that any documents et cetera that the unions intend to rely on be served on us 24 hours before the hearing?

PN498

THE DEPUTY PRESIDENT: Yes, I so direct that as well, thank you for bringing that to my attention.

PN499

MR EDMONDS: Sorry to interrupt. Sir, if the applicant could be directed to also serve copies of the application on the individual respondents which were listed at 2(c)(d), if the Commission pleases.

PN500

MR LUCEV: We will do that.

PN501

THE DEPUTY PRESIDENT: Yes, thank you, I'll adjourn.

<ADJOURNED UNTIL MONDAY 20 MARCH 2006 [11.11AM]