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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15254-1
COMMISSIONER LEWIN
C2006/2696
WILSON PARKING AUSTRALIA 1992 PTY LTD
AND
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/2696)
MELBOURNE
11.36AM, THURSDAY, 15 JUNE 2006
PN1
MR R LEVIN: I seek leave to appear on behalf of the applicant.
PN2
MR B REDFORD: I appear for the LHMU in this matter and I’m joined at the bar table by MS J WALSH, the assistant secretary of the LHMU.
PN3
THE COMMISSIONER: Thank you very much, Mr Redford. Any objection to the application for leave?
PN4
MR REDFORD: No objection, Commissioner.
PN5
THE COMMISSIONER: Leave is granted, Mr Levin.
PN6
MR REDFORD: I omitted to mention, I'm sorry, Ms Walsh is going to need to leave in about half an hour so if you see her leaving the room that's why. Thanks, Commissioner.
PN7
THE COMMISSIONER: Yes, thank you, Mr Redford. Yes, Mr Levin.
PN8
MR LEVIN: Sir, I wonder if I might initially just hand up a bundle of material which I would like to ask to be tendered, which are a bundle of right of entry notices. I've been provided with only one spare set so my friends if they wish to look, they are the notices.
PN9
THE COMMISSIONER: Yes, thank you. These are all documents addressed to the company from the LHMU, is that right?
PN10
MR LEVIN: Yes, sir.
PN11
THE COMMISSIONER: Very well. I'll just give Mr Redford a moment.
PN12
MR LEVIN: I actually have been provided a third set so my friend can keep those.
PN13
THE COMMISSIONER: I've got one. I bundled them altogether, do you want me to bundle everything together?
PN14
MR LEVIN: Yes, as a bundle.
PN15
THE COMMISSIONER: All right. Well, if you hand those up I'll add them to what I've got in front of me at the moment.
PN16
MR LEVIN: No, sir, you have a copy.
PN17
THE COMMISSIONER: Sorry, I beg your pardon.
PN18
MR LEVIN: Thank you, yes.
PN19
THE COMMISSIONER: Mr Redford, is there any objection to the tender?
MR REDFORD: No objection, Commissioner.
EXHIBIT #A1 BUNDLE OF RIGHT OF ENTRY NOTICES
PN21
MR LEVIN: I also hand up a copy of a proposed order which I ask be marked exhibit A2. I have provided my friend a copy. While that's being brought up I might draw your attention, sir, that in the application a photocopy of the proposed rally notice was included. I have an original should you require it.
PN22
THE COMMISSIONER: Yes, could I have that, please?
PN23
MR LEVIN: Yes, certainly, sir.
PN24
THE COMMISSIONER: I take it you have a copy of it?
PN25
MR LEVIN: I'm sorry?
PN26
THE COMMISSIONER: I take it you have a copy of it?
PN27
MR LEVIN: I do have a copy of the application, yes, sir.
PN28
THE COMMISSIONER: Do you have a copy of this, Mr Redford?
PN29
MR REDFORD: I've got a copy of that, Commissioner, yes.
PN30
THE COMMISSIONER: Very well. Any objection to the tender?
PN31
MR REDFORD: I'm interested to know how that document is proved, Commissioner.
PN32
MR LEVIN: I'll be calling evidence.
PN33
MR REDFORD: All right. No objection, Commissioner.
THE COMMISSIONER: Very well.
EXHIBIT #A2 DRAFT ORDER
EXHIBIT #A3 RALLY NOTICE
PN35
MR LEVIN: Thank you, sir. This is an application pursuant to section 496(1) of the Workplace Relations Act 1996. I will read into transcript that it says -
PN36
If it appears to the Commission that industrial action by an employee or employees or by an employer that is not ...(reads)... industrial action stop, not occur and not be organised.
PN37
I will call evidence to the effect that the company is a constitutional corporation and that the employees as defined in section 496(1) are employees as properly defined. It's submitted, sir, that if you are satisfied after hearing the evidence that there is industrial action in this case, threatened, impending or probable under subsection (b) and/or subsection (c) is being organised that you should make an order in the terms of exhibit A2. I will take you to that order subsequent to the evidence as that might be a most appropriate time to look to that. Unlike section 127, sir, there is no process for conciliation and no obligation on you to seek to resolve the matters that are underlying and there is no requirement for you to consider whether the proposed action is illegitimate or not.
PN38
It's our submission that if the evidence substantiates that there is industrial action being organised that is not protected that the order must then be made. I call Darren Smith to the witness stand, please.
THE COMMISSIONER: Mr Smith.
<DARREN BRUCE SMITH, SWORN [11.44AM]
<EXAMINATION-IN-CHIEF BY MR LEVIN
PN40
THE COMMISSIONER: Thank you, please be seated, Mr Smith. Are there any other witnesses, Mr Levin?
PN41
MR LEVIN: No, sir.
PN42
THE COMMISSIONER: Go ahead.
PN43
MR LEVIN: Sir, I wonder if you could tell the Commission your full name and your position in the company?---Darren Bruce, State Manager of Wilson Security.
PN44
Is the company you're employed by Wilson Parking 1992 Pty Ltd, is that the company?---Yes.
PN45
Are you aware if that's an incorporated corporation?---Yes.
PN46
I wonder if you could describe briefly the service that Wilson provides in relation to security staff at sites and explain to the Commissioner what you do?---We are predominantly a manpower business so in the engagement and employment of security officers at various sites.
PN47
Are you aware in December 2005 of some informal discussions occurring and if so could you briefly describe them to the Commissioner?
PN48
THE COMMISSIONER: Sorry, could I just clarify something that was just stated in the evidence.
PN49
MR LEVIN: Please.
PN50
THE COMMISSIONER: These are your employees?---Yes.
PN51
These security guards are the employees of - are they the employees of Wilson Security or are they employees of Wilson Parking?---Wilson Parking is the employer.
PN52
Is the employer, is the holding company?---Yes, and Wilson Security is a trading name.
PN53
It's a trading name so I assume the employees are employees of Wilson Parking?
**** DARREN BRUCE SMITH XN MR LEVIN
PN54
MR LEVIN: I am instructed that they - I will get instructions from the HR manager but to confirm whether they are employees of Wilson Parking 1992 Pty Ltd or - - -
PN55
THE COMMISSIONER: Trading as Wilson Security.
PN56
MR LEVIN: Yes. Yes, I'm instructed that's correct.
PN57
THE COMMISSIONER: Very well.
PN58
MR LEVIN: Can you tell the Commissioner briefly any informal discussions occurring in December 2005 regarding an EBA with the LHMU?---Yes, we had some preliminary discussion about the opportunity to replace an existing EBA within the business.
PN59
Whose desire was it to enter into an EBA?---It was being proposed by the LHMU.
PN60
In January 2006 was there any industrial action that occurred and if so could you briefly describe it to the Commissioner?---I believe it was 6 January that a stop work meeting was held at the National Gallery International on St Kilda a number of staff members for up to approximately three hours.
PN61
What was the nature as you understand it as to what that rally was about?---The premise appeared to be about the initiation by Wilson of a workplace agreement for casual staff on site to facilitate traineeships.
PN62
Had there been any notices to make that protected industrial action served on the company before that 6 January stop work meeting?---No, no.
PN63
Subsequent to that - I will just state, it's correct, isn't it, that a bargaining notice initiating a bargaining period was served on the company?---Yes.
PN64
In relation to the period after 27 March 2006 has there been any notices served on the company seeking to commence a secret ballot process or to take industrial action?---No.
PN65
If I could draw the Commissioner's attention to the proposed order you'll see schedule 1 I'm going to take the witness to that. I wonder if this could be shown to the witness?
**** DARREN BRUCE SMITH XN MR LEVIN
PN66
THE COMMISSIONER: Yes.
PN67
MR LEVIN: The question I'm going to ask the witness is whether schedule 1 describes the sites at which Wilson - which I will hereafter refer to as just Wilson but Wilson Parking 1992 Pty Ltd, that Wilson employs security personnel, is that the correct list?---Yes.
PN68
Thank you. In relation to the right of entry notices that have been served by the LHMU on Wilson do they cover all or part of the
list of sites in schedule 1?
---They cover part of the list.
PN69
Is there something in common about the nature of the sites in respect of which right of entry has been requested?---It has tended to be our more significant sites in terms of numbers of employees.
PN70
Between what number and what high number of employees would be at each site?---Of the right of entry sites are we talking about?
PN71
Yes?---Let's say from 12 to 160.
PN72
Which is the largest site in terms of staffing numbers?---The National Gallery.
PN73
Has Wilson authorised any employees to not attend work tomorrow and attend any rallies?---No.
PN74
I wonder if I could draw your attention to - I wonder if the witness could be shown exhibit A3, please?
PN75
THE COMMISSIONER: Yes.
PN76
MR LEVIN: Have you seen that notice before?---I have.
PN77
Could I ask you how you became aware of this notice and describe to the Commissioner the extent to your knowledge of where it's been provided and by whom?---The physical notice itself I received a copy yesterday. We were alerted to the potential action on Tuesday afternoon from a number of our sites. Sorry, what was part 2 of the question?
PN78
Do you know - well, I will just ask you, how many sites are you aware of at which it has been served?---Sorry. My understanding is five.
**** DARREN BRUCE SMITH XN MR LEVIN
PN79
Smaller, larger, medium size?---Larger.
PN80
Larger?---Yes.
PN81
In respect of the notices in relation to right of entry are you aware of whether they - well, perhaps I might rephrase that. The notices that have been handed up to the Commission relating to right of entry refer to visits that are going to occur today, are you aware of that?---Yes.
PN82
Do you have any knowledge as to what is likely to be discussed at those right of entry meetings?---I would speculate that it would be suggestion of attendance tomorrow at the proposed rally.
PN83
What can you tell the Commissioner about why this action, this proposed rally is being called?---It appears to be timeline driven more than anything.
PN84
What do you mean by timeline driven?---That we don't seem to be acting as a company at the speed that the LHMU would like us to.
PN85
In respect of what?---In respect of exploring the opportunity to establish a revised EBA.
PN86
What EBA is being sought by the union to your knowledge, what coverage of the EBA is being sought by the union?---Sorry, a general state wide EBA.
PN87
To cover?---Security staff.
PN88
Thank you. Do you have any knowledge from any of the five sites that you've referred to as to what the employees have been told is to be discussed tomorrow at the rally?---No.
PN89
Have you spoken with Tony Norris?---Yes.
PN90
What's Tony Norris been able to tell you?---He has told me that at the proposed rally that discussions will be held about potential action, stop work action on that day, ie. Friday, but also taking a vote to initiate stop work action on June 30th.
PN91
What's significant about 30 June at the National Gallery?---June 30th is the commencement date for a major exhibition at the gallery, the Picasso exhibition, and our obligation for that is based on a significant increase in the number of guards being utilised on that day to cope with increased visitor numbers.
**** DARREN BRUCE SMITH XN MR LEVIN
PN92
And in terms of the impact on - well, what would the impact if security staff from other sites were to leave their workplaces tomorrow to attend that rally or hypothetically on 30 June?---I suppose by the very nature that we're employed to secure premises would expose the various sites to a safety risk for both property and public and people working at that site.
PN93
Finally, who has been handing around that notice? Are you aware of who's been handing the notice around?---My understanding representatives of the LHMU.
PN94
Thank you. No further questions.
PN95
THE COMMISSIONER: Thank you. Mr Redford, are you ready to cross-examine?
MR REDFORD: Yes, thank you. Thanks, Commissioner.
<CROSS-EXAMINATION BY MR REDFORD [11.55AM]
PN97
MR REDFORD: I didn't want to interrupt my learned friend's flow but for the avoidance of any doubt I'm concerned about the evidence that's purportedly been given about what Mr Norris says to Mr Smith.
PN98
THE COMMISSIONER: I understand. I understand its hearsay.
PN99
MR REDFORD: I'm submitting that you accord it due weight, Commissioner.
PN100
THE COMMISSIONER: Who is Mr Norris?
PN101
MR LEVIN: If I may assist, he is the site manager for the National Gallery, the manager for Wilson.
PN102
THE COMMISSIONER: Thank you.
PN103
MR REDFORD: Mr Smith, you're the general manager of Victoria and Tasmania of the company, aren't you?---No.
PN104
What's your position?---State manager.
PN105
State manager, and you're responsible for the general management of the company, is that right, of the business in Victoria and Tasmania?---More operations focused.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN106
Is there someone in charge of you who has responsibility for the running of the business in Victoria and Tasmania?---Yes.
PN107
Who is that?---At the present it's Mr John Larkin.
PN108
And what's his position?---He's our - he's just had a change in title so sorry, chief executive officer group business development.
PN109
With respect to what geographical area?---Australia.
PN110
Australia?---Yes.
PN111
So you know about the operations of the business in Victoria and Tasmania?
---Mm.
PN112
So you're aware of, for example, the detail of the negotiations that have occurred between the union and the company about enterprise agreements in the last 12 months?---Yes. Maybe not 12.
PN113
And you're aware that in the second half of 2005 there were negotiations between the LHMU and your company about an enterprise agreement to cover casual trainees?---Yes.
PN114
And you've given evidence about the fact that you were thinking of introducing a workplace agreement to cover those employees in the second half of 2005?---As a company, yes.
PN115
And by workplace agreement you mean Australian Workplace Agreement, don't you?---Yes.
PN116
And you're aware that the LHMU and your company had discussions about that Australian Workplace Agreement in the second half of 2005?---Yes.
PN117
And you're aware that it was agreed that the parties would enter into a collective agreement to cover those employees?---Yes.
PN118
And you're aware that drafts of that agreement were exchanged between the parties in around about December 2005?---Yes.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN119
And you contacted the assistant secretary of the LHMU around about 2 January 2006 to inform her that in fact you've decided to revert to the Australian Workplace Agreement, is that right?---I can't recall.
PN120
THE COMMISSIONER: What is it that you can't recall, the timing or the proposition?---Probably the proposition and the timing to be quite honest.
PN121
So is it your intention to do so?---To?
PN122
Is it your intention to revert to AWAs?---For this particular instance?
PN123
Yes?---My understanding was that by that time we were - sorry, I'm just going through the chronology. We were still investigating it, so 2 January probably still investigating it.
PN124
MR REDFORD: I mean what I'm suggesting to you is that on or about 2 January 2006 you contacted the assistant secretary, Ms Walsh, and told her that you had decided to revert to the Australian Workplace Agreement?---That's your position.
PN125
Is that right, because I can call evidence about that if you like?---I'll say yes.
PN126
And that was - - -
PN127
MR LEVIN: Can I just raise objection, please. Sir - - -
PN128
THE COMMISSIONER: What exactly are you objecting to?
PN129
MR LEVIN: Grounds of relevance.
PN130
THE COMMISSIONER: To that question and are you asking that answer be struck?
PN131
MR LEVIN: I do and I ask that if my friend continues along the line of examination of - - -
PN132
THE COMMISSIONER: Well, didn't you raise the question of why that stoppage took place and the answer from the witness was that he was concerned about this issue?
**** DARREN BRUCE SMITH XXN MR REDFORD
PN133
MR LEVIN: Yes, I did raise the question, sir, about the fact of it but I just raise the question of relevance as to how my friend asks that the line of questioning appears following as to how that came about and the change of mind alleged against the company can be relevant to whether there is action that is threatened, impending or probable or being organised.
PN134
THE COMMISSIONER: Well, we can do this in the absence of the witness, I certainly would want to. I wouldn't want the witness to hear this discussion. The relevance is going to be exposed by the representatives.
PN135
MR LEVIN: Yes, well, I will await my friend demonstrating that relevance and withdraw the objection at this time.
PN136
THE COMMISSIONER: Yes.
PN137
MR LEVIN: If it proves to become relevant.
PN138
THE COMMISSIONER: Do you want the witness withdrawn, Mr Redford?
PN139
MR REDFORD: If the objection is withdrawn I'm happy to continue - - -
PN140
THE COMMISSIONER: You're withdrawing the objection, I'm sorry?
PN141
MR LEVIN: I'll withdraw it but if the relevance isn't soon demonstrated to the section 496 - - -
PN142
THE COMMISSIONER: You'll refresh it?
PN143
MR LEVIN: Yes.
PN144
THE COMMISSIONER: Okay. Go ahead, Mr Redford.
PN145
MR REDFORD: So you've given evidence, Mr Smith, that you contacted the branch secretary on about 2 January and you told her that you decided to revert to the Australian Workplace Agreement and this was not withstanding that, as you've evidence about, the LHMU and your company had exchanged draft collective agreements to cover those employees prior to that time?---The problem I have is that you're asking me for detail at a level which I do not have on this particular instance given that I was on two periods of annual leave in November and December.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN146
Yes, well, I'm not sure that I am. I've asked you whether there were draft of a collective agreement exchanged and you've said yes?---Yes.
PN147
And I've asked you whether you contacted the assistance branch secretary?
---That's my - my understanding about the exchange of drafts is that yes, that did occur.
PN148
And that you contacted the assistant branch secretary and said that you were reverting to the Australian Workplace Agreements?---I can't confirm that but - - -
PN149
Well, you have?---From my chronology point of view it sounds possible.
PN150
And the action that occurred that you've given evidence that occurred on
6 January occurred immediately after you'd contacted the assistant secretary to tell her about your change of mind. That's right,
isn't it?---Four days after it?
PN151
Soon after it?---From my memory any call to the LHMU would have been made only after consultation with staff at various sites.
PN152
And when you gave evidence about what that action was about you said that it was about the introduction of a workplace agreement but it's correct, isn't it, that what that action was about was about your change of mind with respect to using that agreement, that's right, isn't it?---No.
PN153
Just bear with me a second, sorry, Commissioner. You recall Mr Smith, that on about 21 February 2006 there were proceedings brought by your company against the union in this Commission, don't you?---Could you give me more information?
PN154
Did you attend the Commission on about 21 February for proceedings brought by your company against the union?---I'll take advice on that. Yes.
PN155
THE COMMISSIONER: Well, that's not really appropriate with all due respect. It's not appropriate for - - -?---No, sorry, I'm only taking advice on dates for instance.
PN156
Yes, I know but that's not appropriate either. When you're giving evidence in this proceeding you have to give it entirely from your own knowledge, not prompted from the bar table or from the body of the court room. If we allowed that it would be a shamble?---Sure.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN157
You'd appreciate they'd just imagine what would be going on.
PN158
MR REDFORD: I'm going to ask you about a few dates, Mr Smith, and I'm going to ask you - I'm going to use about a particular date and hopefully that makes it a little bit easier. In the proceedings on 21 February it was agreed between the parties that there would be discussions about an enterprise agreement covering Wilson Victorian security guards to ensue over the next few weeks, that's right, isn't it?---Sorry, can you ask that again?
PN159
In the proceedings before the Commission on 21 February it was agreed between the parties that there would be discussions between the parties to ensue over the next few weeks about a collective agreement to cover Wilson security guards in Victoria?---There were discussions to continue, discussions if you like.
PN160
Yes. And there was agreement that those discussions would take place between the company and between the union including some of your employees acting as union delegates?---Yes.
PN161
And between 21 February and 14 March there were four or five meetings between that group?---Certainly a number of meetings.
PN162
And on 14 March there was a meeting held at the LHMU offices that you attended, yes, that's right?---I'd assume so.
PN163
MR LEVIN: I now have to renew my objection. I've waited for relevance to the matters of section 496 to be demonstrated. I now press that objection.
PN164
THE COMMISSIONER: You will have to explain it, Mr Redford. Would you leave us for a moment, please?---Yes.
Just remove yourself to a position where you are not within hearing of the matter.
<THE WITNESS WITHDREW [12.07PM]
PN166
MR REDFORD: Commissioner, the witness has given evidence about the - has suggested that there's an action being organised to take place tomorrow and that he understands that the reason for that action is, in his words, that the company's not meeting a timeline set by the union. I want to ask the witness questions about that timeline and what he means by that timeline.
PN167
THE COMMISSIONER: It goes to probability.
PN168
MR REDFORD: It does and it's relevant, Commissioner - - -
PN169
THE COMMISSIONER: Well, I assume that this line of questioning would inexorably lead to issues of probability.
PN170
MR REDFORD: Indeed, Commissioner.
PN171
THE COMMISSIONER: I thought that was sort of looming very large on the horizon that what was being sought to elicit from the witness was evidence which is relevant to the question of whether or not industrial action is pending or probable.
PN172
MR LEVIN: If it relates to that, that is so.
PN173
THE COMMISSIONER: Well, we can only find out when the questions are answered and it's all put together.
PN174
MR LEVIN: Well, that is right. I would ask that the Commission in respect of questions my friend asks continue to be conscious of the objection that's been raised when you make your determination. I'm not going to quibble with your determination, I just ask that you ensure, that you consider, sir, to quarantine the questions to issues of whether further action is impending, likely or probably. My friend - - -
PN175
THE COMMISSIONER: Yes, being organised.
PN176
MR LEVIN: Being organised, well, impending or probable or being organised but not into the whys and the wherefores.
PN177
THE COMMISSIONER: Yes, but I mean Mr Redford is not required to ask this witness that question. That's a question for the Tribunal, of which you fully appreciate I know.
PN178
MR LEVIN: Absolutely, sir.
PN179
THE COMMISSIONER: But I think these facts are facts which on the basis of affording a fair hearing are legitimate subjects of cross-examination.
PN180
MR LEVIN: If they're going to assist you, sir, in that - - -
PN181
THE COMMISSIONER: Yes, well, particularly as this witness in-chief has said that he thinks and he's identified at least two matters which thinks it is irrelevant to his speculative view that industrial action is being organised and is pending and is probable, which I think is inferred from his evidence.
PN182
MR LEVIN: If the Commission pleases.
PN183
THE COMMISSIONER: From his point of view is because there was a stoppage about these AWAs, and secondly, because there's ongoing negotiations for an EBA which people see as the union is dissatisfied about not so much in relation to the substance of them but in relation to the progress.
PN184
MR LEVIN: There's no doubt, sir, that - - -
PN185
THE COMMISSIONER: I think they're wide open frankly.
MR LEVIN: Yes, sir. Thank you, sir.
<DARREN BRUCE SMITH, RECALLED ON FORMER OATH [12.11PM]
<CROSS-EXAMINATION BY MR REDFORD, CONTINUING
PN187
THE COMMISSIONER: All right, good. Thank you. Good, thank you very much for that and if you would be good enough, please, Mr Smith, to resume your seat in the witness stand. Sometimes when the questions of the admissibility or otherwise of evidence are raised it's appropriate for the witness not to hear the discussion. Thank you. Mr Redford.
PN188
MR REDFORD: Thank you, Commissioner.
PN189
Before I ask you, Mr Smith, about some more dates I'm just going to ask you a question that I omitted to ask you earlier and that was that it's the case, isn't it, that the parties have since, the LHMU and Wilson have since entered into a collective agreement covering the casual trainees that would have been covered by the workplace agreement, that's right, isn't it?---Yes, my understanding is that a short term enterprise bargaining or certified agreement has been utilised to supersede the AWA proposal.
PN190
And it's been made and certified by this Commission?---That's my understanding.
PN191
Thank you. Now, I was asking you about a meeting that occurred at the LHMU offices on 14 March and I suggest to you that at that meeting that the parties concluded the negotiations that they were having in the preceding weeks about the conceptual elements of the enterprise agreement that was being negotiated?---We, without being specific about the date, over the period of the number of meetings that we've had we certainly discussed conceptual elements, as you said. I can't - I don't recall ever making an absolute definitive statement to say right, everything is ready for green light.
PN192
Yes. But there was agreement that the parties would enter into a collective agreement at some future time?---I wouldn't say that.
PN193
There was agreement that if the parties were to enter into a collective agreement at some future time it would be based largely on the terms of the Security Employees Victoria Award 1998?---Our conceptual discussions throughout those meetings was certainly founded on that basis.
PN194
There were some matters agreed which would have represented a divergence from the terms of that award, for example, that the company's current rostering clause will be used in the collective agreement instead of the hours of work clause that exists in the award?---Could you be more specific, please?
**** DARREN BRUCE SMITH XXN MR REDFORD
PN195
I'm suggesting that one of the things that was agreed was that instead of using the hours of work clause in the Security Employees Victoria Award that the parties agreed to use the rosters clause that exists in the current Wilson's and LHMU Enterprise Agreement?---Yes, could be more specific about the rosters clause, sorry, what's that?
PN196
There's a clause in your current enterprise agreement that deals with rosters and hours of work?---Mm.
PN197
That's the clause I'm talking about?---Are you alluding to a variation of the 38 hours per week application of overtime? Sorry, I don't - - -
PN198
THE COMMISSIONER: I think we could complicate this by you questioning. Mr Redford will start a dialogue that will be a bit unmanageable I think. It's my apprehension of the question that's being put to you is quite simply actually. Was it agreed conceptually that if there was to be a collective agreement in the future in relation to the rostering of employees and their hours of work the provisions of the award would not apply, but rather the company's existing rostering arrangements would apply?---I don't think it was that specific.
PN199
You don't think it was that specific?---No.
PN200
MR REDFORD: There was agreement with respect to overtime while currently the award provides for overtime payable at time and a half for the first two hours worked and double time thereafter that instead the new collective agreement will provide for a loading of 1.85 of the ordinary rate payable on overtime hours worked, that was agreed?---That was certainly one - - -
PN201
MR LEVIN: Which of the two? There were two propositions put about two different clauses. Perhaps if the witness could be asked about each clause.
PN202
MR REDFORD: I think the witness had already answered, Commissioner.
PN203
THE COMMISSIONER: Do I understand the proposition that was put to him is that all overtime paid at 1.85 ordinary time rate?---Correct. That was certainly one of the conceptual elements that we spoke about, yes.
PN204
MR REDFORD: Yes. And it was also agreed that there would be pay increases to the agreement - in the agreement of an amount of 4 per cent payable on 30 June 2006 and 2007?---I wouldn't say agreement I don't think is the right word.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN205
What would be the word that you would use to describe where the parties ended with that matter?---We had a number of conceptual elements, to use your words, that we worked through and over a period of time our positions were becoming more clarified.
PN206
THE COMMISSIONER: Were they becoming more convergent?---More?
PN207
Convergent?---Yes, yes, to a point where we were approaching a position of, yes, convergence.
PN208
MR REDFORD: I might just go back a step. The question I put to you was that the parties agreed about 4 per cent in June 2006 and June 2007. You said in answer to that question you wouldn't use that word.
PN209
THE COMMISSIONER: Sorry, I mean we are in an Industrial Tribunal, it is an expert Tribunal. The process of negotiation is a matter
of acute familiarity and expertise to the Tribunal. We are on the public record in relation to an application concerning industrial
action. The cross-examination concerns negotiations between parties for the making of an agreement. I am cautious that we should
be very, very careful about the way questions and answers are given in relation to this matter because there may be a dispute about
these issues and other things may flow from that. One of those is that in particular circumstances it is not unimaginable that the
Commission may have to be involved in arbitral circumstance. Now, I think it's unlikely but I have to have this in mind presiding
over these proceedings under the Act and I think it would be highly undesirable if any imprecision about discussions between parties
in these circumstances was to give rise to controversies separate to the nature of the controversy currently being considered under
this application. My understanding, Mr Smith, is that what
Mr Redford is putting to you, and correct me if I'm wrong before the witness answers, is that what he's saying is that if agreement
was reached then the agreement could include wage increases of the amounts and timing that are being proposed but the company has
not agreed to increase wages by those amounts on those dates, rather it has been involved in a discussion which is provisional and
conditional upon the execution of a final agreement, is that right?---Yes.
PN210
MR REDFORD: I'm going to move past that issue.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN211
THE COMMISSIONER: You weren't putting to him that they had agreed to pay these matters and that they are now bound to do so, were you?
PN212
MR REDFORD: I put to the witness that the parties had agreed that the pay increases would be 4 per cent in June 2006 and in June 2007.
PN213
THE COMMISSIONER: In the context of an agreement being envisaged by the parties, or are you putting it to him and if you are I think you need to put it to him fairly and squarely, that the company has agreed that it will increase the wages of the employees by 4 per cent on those dates regardless of anything else?
PN214
MR REDFORD: Yes. No, can I say this, Commissioner, I accept what you've said. With your permission I intend to move past this matter. The witness has given evidence in response to your question.
PN215
THE COMMISSIONER: Well, we've heard what the witness has said.
PN216
MR REDFORD: Yes.
PN217
THE COMMISSIONER: And you've had the opportunity to question him. He has not said and in fact he has by his evidence rejected the proposition that the company has agreed that regardless of anything else that may happen between the parties it will increase the wages of the employees by the amounts mentioned by you on the dates mentioned by you.
PN218
MR REDFORD: Yes.
PN219
THE COMMISSIONER: All right.
PN220
MR REDFORD: There was a consultant employed by you from a firm called EMA that was present at that meeting on 14 March, that's right,
isn't it?
---Certainly there was a consultant employed. I can't confirm whether he was at the 14 March but he was certainly involved in a number
of meetings.
PN221
Yes. I suggest to you that in that meeting it was agreed that because of the, in your words, convergence of views of the parties, that the parties would move into what we describe as a drafting process and that might involve more meetings but those meetings would not involve your employee union delegates who had been present at the preceding meetings?---I think the overriding sentiment was that we appeared to be reaching a point where that was possible.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN222
And there were more meetings held after 14 March to discuss the collective agreement and the employee union delegates weren't present at those meetings. That's right, isn't it?---Yes.
PN223
And on round about 21 March 2006 you were provided with a draft agreement from the union?---It was certainly - have been provided with draft agreements in the past.
PN224
And you're aware that on around about 3 April 2006 the LHMU met with your consultant from EMA about issues arising from the draft?---That's my understanding.
PN225
And are you aware that there were about 40 or so issues arising from the draft?---I wasn't aware of the scope of the number of issues but my understanding was there issues arising, yes.
PN226
And you're aware that a number of those issues related to the Commonwealth Government's Work Choices Legislation which had become
operative on
27 March 2006?---Yes.
PN227
And a second draft was provided to you, a second draft agreement was provided to you on about 7 April 2006?---Possibly, yes.
PN228
And that draft encompassed a range of amendments to deal with the issues that had been identified by EMA?---Yes.
PN229
And during April, following 7 April, you were engaged with things such as Easter and the Grand Prix?---Certainly.
PN230
But on 1 May 2006 you provided feedback about the draft?---Yes.
PN231
To the LHMU?---Assuming that the date's correct.
PN232
Yes. Do you recall that on 12 May 2006 you attended a meeting at the LHMU offices?---I've attended a meeting at the office, yes, I'm not sure of the date.
PN233
You attended a meeting on about 12 May though?---Yes.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN234
And you were presented with another draft of the collective agreement by hand on that day?---Actually I don't recall that, sorry.
PN235
I suggest to you that you were presented with a draft agreement by hand on that day?---I don't recall.
PN236
THE COMMISSIONER: Who do you say did it, Mr Redford?
PN237
MR REDFORD: Me, Commissioner.
PN238
THE COMMISSIONER: Do you recall Mr Redford giving you anything on that day?---Not specifically.
PN239
MR REDFORD: Do you recall in that meeting advising me that you had recently - the company had recently appointed a new general manager?---Yes.
PN240
Do you recall during that meeting expressing sentiments to the effect that you were happy with the size of the agreement?---No.
PN241
Do you recall expressing sentiment to the effect that most if not all of the issues arising for discussion about the agreement appeared to be resolved?---I can't recall.
PN242
I suggest to you that in that meeting your view was generally speaking that the draft - - -
PN243
MR LEVIN: Perhaps if I might ask my friend to rephrase the question rather than asking him his general view.
PN244
THE COMMISSIONER: Go ahead, Mr Redford.
PN245
MR REDFORD: I suggest to you that in that meeting you expressed the view that you believed the draft agreement was satisfactory to the company subject to you needing to speak with your general manager about it?---No.
PN246
It was the case though that you expressed that you would need to speak with your general manager about the draft agreement?---Agreed.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN247
And I suggest to you that your position was that if your general manager was comfortable with the agreement in that form it was ready to be entered into by the parties, subject to the requirements of the Workplace Relations Act about collective agreements?---My recollection is that certainly the communication about the general manager role occurred. My recollection of the meeting was more along the lines of given that our opinions appeared to be coming closer together that it certainly allowed further exploration or opportunity for an agreement to be reached.
PN248
Can I suggest to you that your view was - I withdraw that. Can I suggest to you that your position was, your stated position was
that all of the issues that had arisen for resolution about the collective agreement were resolved by that draft?
---No.
PN249
What were the outstanding issues?---I - - -
PN250
I might ask that question again. I withdraw it and ask you what were the outstanding issues that you raised during the meeting?---Without recalling specific detail, certainly you intimidated that I had raised the concern about work choice legislation, for instance, which I never profess to be an expert on. We hadn't agreed or finalised any proposed rates of pay at that stage. Two things which I think are fairly significant issues.
PN251
Well, can I go back then, the draft agreement that was being discussed contained rates of pay, didn't it?---Yes.
PN252
And you raised an issue about those rates in that meeting?---I think we had an ongoing issue about the calculation of such rates.
PN253
So you raised an issue in that meeting about the calculation of the rates in that draft?---I'm not saying specifically that yes, I did. The point I'm trying to make is that I believe I did - sorry, I'm contradicting myself. It was a position raised at - if we had five meetings on the subject I suggest it was raised at four of them at least.
PN254
So your evidence is that in that meeting you expressed that you had outstanding concerns about the rates?---Mm.
PN255
That you had outstanding concerns about Work Choices Legislation and - - -
**** DARREN BRUCE SMITH XXN MR REDFORD
PN256
MR LEVIN: Commissioner, the witness nodded, I might remind.
PN257
THE COMMISSIONER: Yes, very well?---Sorry, yes.
PN258
Sorry, I didn't notice, I was writing.
PN259
MR REDFORD: And they were the only issues you raised with the document?
---I can't recall.
PN260
You undertook to revert to the union on around about the Tuesday of the following week about the views of your general manager. That's right, isn't it?---I remember we had a phone conversation at some stage.
PN261
That is yourself and myself?---Yes.
PN262
And in that phone conversation you told me that you would advise me of the views of your general manager the following week, yes?---Correct.
PN263
And you didn't do that, that's right, isn't it?---That's not correct.
PN264
Well, let me suggest to you that the next contact from the company with the union occurred on around about 24 May 2006?---I can't recall. Sorry, my recollection is that there were a number of messages left between yourself and myself on our respective mobile phones.
PN265
You have given evidence that on 12 May you told me you would come back to the union about the views of the general manager on about the following Tuesday. That's 16 May or thereabouts. You didn't contact the union to tell the union about your views of your general manager on 16 May, did you?---I dispute that.
PN266
You did?---I dispute that.
PN267
THE COMMISSIONER: Are you saying you did?---Without being absolutely clear on dates, if it wasn't the 16th it would have been the 17th.
PN268
MR REDFORD: What did you tell the union about the views of your general manager?---The difficulty at the time was that the incoming general manager was bound by an employment agreement and that it was very difficult to A, get a hold of him, and B, to get him to commit to a position.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN269
So you told the union that in a message left on a phone?---That's my recollection.
PN270
Okay. The parties next met on 26 May 2006, that's right, isn't it?---We had a subsequent meeting.
PN271
Well, that was the next meeting, wasn't it?---I just - all I'm trying to say is that without my diary in front of me I cannot say that yes, it was 26 May.
PN272
THE COMMISSIONER: Would it be around that date?---I suggest it was likely, yes.
PN273
MR REDFORD: And there was no other meeting between 12 May and - I withdraw that. There was no other meeting between about 12 May
and about
26 May between the parties, was there?---From recollection, no.
PN274
And the meeting on 26 May occurred at the Wilson head office?---Yes.
PN275
And you didn't talk at all in that meeting about the views of the general manager, did you?---I didn't necessarily flag them as being direct quotes from the general manager, no.
PN276
And you said in that meeting to the union that the company had a range of problems with the proposed collective agreement?---Yes.
PN277
The union asked you to provide it with detail about those problems. That's right, isn't it?---Yes.
PN278
And you explained that you wouldn't be in a position to do that until the end of the following week?---I think the meeting that we initially held was on a Friday and I think we committed to get our concerns to you as soon as possible and from recollection it may have been the Wednesday that that feedback was given to you.
PN279
In the meeting, whilst you said you had a range of concerns, you also said you weren't able to give the union detail about those concerns until the end of the following week. That's right, isn't it?---I think we were reasonably clear in that meeting what our concerns were, to which you took umbrage at from memory.
PN280
So your evidence is that in that meeting when the union asked for detail of the concerns you detailed all of those concerns?---Not all of them, no.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN281
On around about 2 June 2006 you provided the union with a written
document - - -
PN282
THE COMMISSIONER: Sorry, what date?
PN283
MR REDFORD: 2 June, Commissioner.
PN284
THE COMMISSIONER: 2 June.
PN285
MR REDFORD: A written document outlining your concerns with the proposed EBA. That's right, isn't it?---Yes.
PN286
And there were about 30 items on that list. That's right, isn't it?---I'm surprised at the number but there was a significant number.
PN287
And in the meeting that was held on 26 May 2006 you provided the union with detail about how many of those 30 concerns?---My understanding is that out of those 30 concerns roughly three quarters of them pertained to drafting and drafting in line with prohibitive content and that was certainly one of the points that we discussed in a meeting at our offices.
PN288
Well, let me suggest to you that on that list of 30 concerns there were in fact only five of those items identified as relating to prohibited content. Is that right?---I don't know.
PN289
Well, you've given evidence, Mr Smith, that roughly three quarters of those items related to prohibited content?---That was my understanding.
PN290
And what I’m suggesting to you that in fact it was five?---That's your - - -
PN291
You say you don't know?---I don't profess to be an industrial relations lawyer.
PN292
I'm not asking you an industrial relations question. I'm asking you about a document - - -?---Well - - -
PN293
THE COMMISSIONER: With all due respect, you are asking him an industrial relations question but you may not be asking him a legal question?---I suppose to clarify, I was making the assumption that where we were asking for a redrafting of a paragraph or a clause my right or wrong assumption was that that was pertaining to Work Choices Legislation.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN294
MR REDFORD: I understand. The union provided you with a response to that document on 6 June, is that correct?---It sounds about right.
PN295
And in that response the union advised you that many of the issues that you'd raised were not possible to respond to properly without the specific proposal that you were making being provided to the union?---Certainly I noted that you did ask for our revised - you did ask us for our revised wording or redrafting.
PN296
And what I mean by that is that, for example, one of the issues you raised was that you had a concern with the part time employment clause in the agreement. That's right, isn't it?---My understanding is that was our concern from a company perspective.
PN297
That you said simply that with respect to the part time employees' clause it was too prescriptive and inflexible. That's right, isn't it?---You're asking me to make comment on content that I didn't draft. But there was certainly a document presented to you and if that's in that document, agree.
PN298
Yes. So you're prepared to concede that in that document you've identified a problem with the part time employees clause and that the part time employees clause was, in your words, too prescriptive and inflexible?---Without remembering the details, we certainly raised that issue on a number of clauses.
PN299
And the LHMU response to that was that if you had a problem with the prescription or inflexibility of the clause that you'd need to provide the union with the words that you felt would address your concerns?---That was your feedback on a number of clauses.
PN300
Yes. Well, that was what I was going to suggest to you, that the vast majority of responses made by the union were along those lines?---That's my recollection, yes.
PN301
And that was provided to you on 6 June 2006, that response from the union?
---Yes.
PN302
And that you've not provided the union with those proposed clauses or amendments to date?---That is correct I believe.
PN303
And finally on these timing issues, the list of concerns that you, the company, provided the union with were concerns about a draft agreement that had been provided to you on 12 May 2006. That's correct, isn't it?---I can't recall specific dates.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN304
THE COMMISSIONER: Would it have been in May?---It possibly would have, yes.
PN305
MR REDFORD: Would it have been in early May?---If you're talking about the version 7 document or whatever?
PN306
Yes, I'm talking about version 7?---Yes, I can't recall but I know that there's a date down the bottom of that document for instance.
PN307
THE COMMISSIONER: Do you have any reason to believe that it wouldn't have been in early May?---No.
PN308
MR REDFORD: Now, I just want to refer you, Mr Smith, to exhibit A3 which is the notice.
PN309
THE COMMISSIONER: You might give that to the witness?---Thank you.
PN310
MR REDFORD: Where did you get this document?---It was left in my office.
PN311
It was left anonymously in your office?---(No audible reply).
PN312
If I could just take your attention away from the document for just a moment, at the NGVA site, the National Gallery of Victoria Australia site, what time did the security guards commence work?---I believe it is I think just after nine.
PN313
Just after nine, I'm sorry?---Yes.
PN314
And at the NGVI site, the National Gallery of Victoria International which is on St Kilda Road?---This is the larger body of guards we're talking about? I'm assuming we're talking about general body of security officers.
PN315
Yes, perhaps I should have asked you when the morning shift starts?---Sure.
PN316
I take your evidence to be that shift starts at just after nine to the best of your recollection?---(No audible reply).
PN317
And I note again that the witness is nodding. The NGVI site, National Gallery of Victoria International on St Kilda Road, the security guards at that site start the morning shift at what time?---I believe it's 9.40.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN318
Can I take you to exhibit A3. It's the case that this notice, Mr Smith, advises its recipients that the rally referred to in the notice is timed to commence at 8.15 am?---Correct.
PN319
Can I also take you to the part of the notice in around about the centre of the document there's a sentence that reads "The action" and it says:
PN320
Guards who are not working are being asked to rally together to get Wilson to listen this Friday.
PN321
That's right, isn't it?---Correct.
PN322
And it's clearly the case, isn't it, that that refers to guards who are not working, that's correct, isn't it?---That's what it says.
PN323
And - I withdraw that. Just bear with me for just a moment I'm sorry. And you've not been advised that there'll be a rally taking place at the National Gallery of Victoria International tomorrow during the ordinary hours of your employees work, have you?---I suppose that's where the contentious issue comes in.
PN324
I mean that's a direct question. You've not been told?---If I could answer it directly then, we have staff on shift at that site at that time.
PN325
You've not been told, nor do you have any reason to believe that the staff that are rostered to work on shift at that time will not be working, do you?---Yes, I do.
PN326
You have reason to believe that the guards who are working - sorry, the guards who are rostered to work at 8.15 tomorrow morning at NGVI will not be working?---Sorry, I misunderstood your question, no.
PN327
You've not been told, nor do you have reason to believe that any rally that takes place in the vicinity of that site tomorrow will obstruct or hinder the entry of any person to the site?---If we base it on the actions of January 6, yes, I do.
PN328
You don't know, do you, the location of the apparent rally with respect to the building itself, do you?---Only what's on the flier.
PN329
And the flier simply says the National Gallery of Victoria International, doesn't it?---Mm.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN330
And it's the case, isn't it, that the security guards who work at the National Gallery of Victoria International enter the building for work through the entry point that is located at the back of the building?---Not all, no.
PN331
Most, I suggest to you?---No.
PN332
Most of your employees who work at the NGVI enter from the St Kilda Road entrance or the front of the building?---I can only go on the actions again of January 6 where there is certainly a core of people that start at 9.40 who enter via the rear exit entry, however as we saw on 6 January the throng clearly and - - -
PN333
THE COMMISSIONER: Are you talking about NGVI?---I, yes.
PN334
You are?---Yes.
PN335
So they start at 9.40?---Yes.
PN336
Right?---It's the concern after that, as it was on January 6, that the group went to the front of the building and started harassing people as they arrived for work through the front door.
PN337
MR REDFORD: You've given evidence that some of your employees who work at NGVI enter the work through the front door?---Yes.
PN338
And the front door is the St Kilda Road entrance?---Yes.
PN339
And what I've suggested to you is that most of your employees enter through the back door. That's right, isn't it?---That's probably over 50 per cent so I would say most.
PN340
And again you don't know whether the rally will be held near the back door of the premises or the front door of the premises, or indeed
some other place, do you?
---No.
PN341
And it's the case, isn't it, that at 8.15 am the front door of that premises is shut?
---Yes.
PN342
The gallery itself opens to the general public at 10 am. That's right, isn't it?---I'll take it, yes, thereabouts.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN343
How do employees who arrive for work before 10 am get into the front door?---I don't think they do.
PN344
Employees who arrive for work before 10 am are going to have to go in the back door, aren't they?---I assume so.
PN345
So it's the case, isn't it, that if this rally is held somewhere near the front door those persons arriving for work will not be hindered or obstructed from commencing work, that's right, isn't it?---I can't say that because for instance - - -
PN346
Well, they just go in the back door, won't they?---Well, it's all about how they get to the back door I suppose. If they catch a tram on St Kilda Road and get off at St Kilda Road and have to walk around the back they may encounter some of your members.
PN347
And there's not been any employee of yours, or indeed any union official that you've come into contact with, who has told you that your employees at the NGVI will not be commencing work on time tomorrow? Do you want me to ask you that again?---Yes, sorry, just the first part of it.
PN348
There's not been any of your employees, or indeed any union official that you've come into contact with, who has told you that your employees at NGVI and NGVA won't be commencing work on time tomorrow?---The suggestion has been made to us - - -
PN349
No, no, I'm asking you whether any of your employees or any union official you've come in contact with - - -
PN350
THE COMMISSIONER: Has told you?---To me directly?
PN351
MR REDFORD: To you?---Personally?
PN352
Yes?---No. Sorry, you said employees, didn't you?
PN353
THE COMMISSIONER: You did.
PN354
MR REDFORD: Yes.
PN355
THE COMMISSIONER: Your employees?---Yes, sorry. The suggestion has come from one of my employees.
**** DARREN BRUCE SMITH XXN MR REDFORD
PN356
MR REDFORD: And the suggestion has come from your site manager?---Yes.
PN357
Mr Norris. And you don't expect Mr Norris to be participating in any rally or action tomorrow, do you?---I don't.
PN358
So there's been no suggestion made to you by any employee other than Mr Norris, or any union official that your employees of NGVI and NGVA won't be commencing work on time tomorrow?---To me directly, no.
PN359
Thank you, Commissioner.
PN360
THE COMMISSIONER: Thank you. Re-examination, Mr Levin?
MR LEVIN: Yes, and in light of the last questions I may call another witness being Mr Norris.
<RE-EXAMINATION BY MR LEVIN [12.56PM]
PN362
MR LEVIN: What happened on 6 January that you made you say you believe the rally will affect employees who are due to be at work?---The similarity of circumstance was that we were initially instructed on January 6 that a meeting at the rear of the building was to be held. It suggested that during that meeting that a motion was passed to escalate the meeting whereby the group involved made their way to the front of the building and over a period of time approached staff members as they were arriving for work.
PN363
Approached them in what way or to do what, what knowledge do you have?--- I would suggest the approach was made to join the stop work meeting.
PN364
MR REDFORD: I’m sorry, Commissioner, the problem with this is that again this is, I suspect, hearsay, although I'm not likely to have an opportunity to cross-examine - - -
PN365
THE COMMISSIONER: Well, you might if you ask to re-open the cross-examination on the basis and we'll see how Mr Levin proceeds with the evidence having regard to what was said.
PN366
MR REDFORD: Thank you, Commissioner.
PN367
MR LEVIN: I will just respond to that by saying that short of calling Mr Redford and Ms Walsh who's not here to be called to give evidence, they choose to bring no evidence that implications can be drawn.
**** DARREN BRUCE SMITH RXN MR LEVIN
PN368
In relation to the sites that you were referring to where this notice to your knowledge has been distributed, do any of those sites have employees who work at 8.15 am?---Yes.
PN369
Are there any employees at NGVI or A that work at 8.15 am?---Yes.
PN370
Are there, in relation to schedule 1 that I've shown you with the list of sites, in respect of those sites where there are rights of entry, in respect of any of the sites where rights of entry are being effected today, do you have then employees who would ordinarily be at work at 8.15 am?---Yes.
PN371
Do you have a new CEO for the security business commencing on 1 July 2006?
---Yes.
PN372
Will it be his decision as to whether an EBA is agreed and if so on what terms?
---Yes.
PN373
He will be the decision maker on both of those questions?---Yes.
PN374
If you would bear with me for one moment, sir. What numbers of employees are we talking about in respect of the five sites where the notice has been issued, a total number?---I would say just over 200.
PN375
Yes. And the total workforce?---Is around about 400.
PN376
Yes. I have no further questions for this witness but pending just someone coming back into the room I may have another witness.
PN377
THE COMMISSIONER: Is there any application to re-open the cross-examination?
PN378
MR REDFORD: No, there's not, Commissioner. The only thing - - -
THE COMMISSIONER: In that case I'll release the witness. Thank you for your evidence, Mr Smith. You're released from your oath and you're free to come and go as you please.
<THE WITNESS WITHDREW [1.00PM]
PN380
MR REDFORD: Sorry, Commissioner. The only thing I would like to flag at this stage is that I might have the opportunity to speak with my learned friend about this matter if we're about to break for lunch.
PN381
THE COMMISSIONER: Well, it's 1 o'clock now.
PN382
MR REDFORD: But it may be necessary for me to call a witness, depending on what further evidence is led by the company and it's likely that that witness will be a person, an employee of the company who will need to be released from work for that purpose should it be necessary which may be a matter of discussion during the break.
PN383
THE COMMISSIONER: Well, let's find out first of all who else will give evidence for the company if anybody.
PN384
MR REDFORD: Thank you, Commissioner.
PN385
THE COMMISSIONER: When we will know that, Mr Levin, after lunch?
PN386
MR LEVIN: During lunch. A phone call is being made at the moment, sir.
PN387
THE COMMISSIONER: Yes, very well.
PN388
MR LEVIN: I must say I'm inclined from the answers that have just been given in respect of the matters that I'm likely not to bother calling that further witness.
PN389
THE COMMISSIONER: Well, let's resume at 2 o'clock.
PN390
MR LEVIN: If the Commission pleases.
<LUNCHEON ADJOURNMENT [1.02PM]
<RESUMED [2.14PM]
PN391
THE COMMISSIONER: Yes, please be seated. I'm sorry to keep you, we just had a couple of things come up over lunch, that's all.
PN392
MR LEVIN: Certainly, sir. I seek leave to recall Darren Smith. There won't be any other witnesses called. I have informed my friend as to the nature of the questions that will be asked.
PN393
MR REDFORD: Yes, I am happy to consent to that, Commissioner.
PN394
THE COMMISSIONER: Very well.
PN395
MR REDFORD: Just while I'm on my feet can I just indicate to you that I've attempted to seek some instructions during the break from the union and unfortunately have not been able to do so. So I've taken the liberty of leaving my phone on. I think it's on vibration.
PN396
THE COMMISSIONER: Silent, yes, all right.
PN397
MR REDFORD: So it may go off.
THE COMMISSIONER: Yes, that's right, do that. Yes, Mr Smith, you can take the stand again will you, please. Unfortunately we have to swear you again because I have released you from your oath.
<DARREN BRUCE SMITH, RECALLED AND RESWORN [2.15PM]
<FURTHER EXAMINATION BY MR LEVIN
PN399
THE COMMISSIONER: Thank you, please be seated, Mr Smith.
PN400
MR LEVIN: Commissioner, before - - -
PN401
THE COMMISSIONER: Yes, just a moment. Yes, Mr Levin.
PN402
MR LEVIN: Before your associate takes her seat, I think that I handed my copy of the proposed order to the witness.
PN403
THE COMMISSIONER: Yes.
PN404
MR LEVIN: And I wonder if I could get it back, please?
PN405
THE COMMISSIONER: Yes, I beg your pardon.
PN406
MR LEVIN: There may need to be some changes to that proposed order.
PN407
THE COMMISSIONER: Right.
PN408
MR LEVIN: Excuse my lunch, sir.
PN409
THE COMMISSIONER: That's all right. There is a, I guess as age catches up with me, I'm observing some habits that I learned when I first started appearing in industrial jurisdictions in 1970, but I notice that the cultural is changing but nevertheless I think I'll sort of be old and honorary.
PN410
MR LEVIN: It was unintended, sir, I can assure you.
PN411
Have you made some phone calls during the luncheon adjournment?---I have.
PN412
Are you able to list for the Commissioner those sites that you've had direct contact with the supervisors in respect of which there have been notices - that the notice exhibit A3 has been served and how has it been provided to the employees?---The following sites received notice of the rally via visitation of LHMU officials and the distribution of the exhibited flier on the site, the National Gallery of Victoria International, National Gallery of Victoria Australia, Commonwealth Law Courts, Southern Cross Station, Melbourne Museum, Deakin Burwood.
**** DARREN BRUCE SMITH FXN MR LEVIN
PN413
I think if the Commissioner wants to write - - -
PN414
THE COMMISSIONER: Yes. No, that's all right?---Sorry.
PN415
I'm with you. Go ahead?---Deakin Burwood, Box Hill Hospital, Safeway Distribution Centre in Broadmeadows and Orica. We also were notified that the Immigration Museum on Flinders Street received notification via email and it was further suggested by a number of the sites that fliers were mailed to the home addresses.
PN416
MR LEVIN: Sorry, when you say suggested, suggested or said?---It was said.
PN417
Said to you or to someone else?---It was said to me by the supervisors.
PN418
Yes. What was said to you?---That a copy of the fliers were being mailed to the home addresses of what appeared LHMU members.
PN419
Were or had been mailed?---Had been.
PN420
Did you get any information in relation to the telephone calls or not?---Yes.
PN421
What information did you obtained?---We also received - I was told by site supervisors that a number of employees had reported the fact that they had received telephone calls from the LHMU.
PN422
At each of the sites that you've listed do they have employees that ordinarily be at work between 8 o'clock and 9 o'clock in the morning?---Yes.
PN423
Going to the question of whether employees are likely to be at this rally during their work hours I want to ask you whether you recall a right of entry notice being sent by LHMU to Wilson in respect of visiting the NGVI site on 6 January at proposed 9 o'clock, do you recall that notice of entry?---Yes, yes.
PN424
Sir, I have informed my friend in asking these questions I intend to lead a little bit. Do you recall a letter sent to Dusko Petrovic of the LHMU on 5 January, the day before that, that says -
PN425
We note that you have sought right of entry for a meeting at NGVI for Friday, 6 January at 9 am.
**** DARREN BRUCE SMITH FXN MR LEVIN
PN426
A letter that then goes on to say that the nominated break times of between 11 and one, given the location of where the nominated break times are, the entry for where those break times are, do you recall that letter?---It was sent as a fax, yes, I do.
Perhaps if I could tender that, please.
EXHIBIT #A4 LETTER TO THE LHMU, 05/01/2006
PN428
MR LEVIN: I ask if the witness be shown that and identify if that is the letter
PN429
Is that the letter?---Yes.
PN430
I ask that be tendered. I think you may have already marked that as A4, sir.
PN431
THE COMMISSIONER: Well, I've given the number I identified, thank you.
PN432
MR LEVIN: Did you attend the site on 6 January?---Yes, I did.
PN433
Did the rally of employees go from approximately 9 am to 1 pm?---Yes.
PN434
At 9.40 am did you observe any employees leave the rally to go back to work at the start time of their employment?---No.
PN435
Did you see employees remain there who you know to be employees who should have continued - who should have returned to work at 9.40 am?---Yes.
PN436
From your discussions both at lunch time and prior to that are you aware of anything other than the wording of the notice in the communications with the employees to emphasise to them either that the rally will finish at a particular time?---No.
**** DARREN BRUCE SMITH FXN MR LEVIN
PN437
No. Have you been informed of anything that suggests that in the phone calls that have been made to them not to turn up if it would be at a time when they should be at work?---No.
PN438
No further questions.
THE COMMISSIONER: Thank you. Mr Redford.
<FURTHER CROSS-EXAMINATION BY MR REDFORD [2.23PM]
PN440
MR REDFORD: Mr Smith, the letter that's been marked A4 says that your company has a problem with the right of entry notice that you received with respect to that proposed entry, doesn't it?---Yes.
PN441
And the problems are that no reason was given for the proposed entry. I realise you may not have it in front of you. I wonder if the witness could be shown A4, Commissioner. That no reason was given for entry, I’m referring to the front page of the fax and forgive me because I don't have it in front of me, but on the front page it says that your company has a problem with the proposed entry because there's been no reason given for the proposed entry?---Yes.
PN442
And that also the proposed entry is not during work time?---No, we're saying - it says it was during work time and not a nominated break time.
PN443
Right. And the entry sought to be made by union officials on the following day was denied, wasn't it?---On the 6th?
PN444
Yes?---I believe so.
PN445
It's right, isn't it, that nearly all of the people who you say engaged in the action on 6 January 2006, that nearly all of your employees who you say engaged in that action were issued with written warnings advising them that in the event of a repeat of that behaviour that they may be subject to further disciplinary action and even termination of employment?---Largely, yes. There were varying degrees because there was associated issues. In other words, taking what is a closed circuit security radio off the site, so there was compounding issues for a number of them.
PN446
So all of the employees were issued with warnings, some of the employees were issued with a higher level of warning than others?---I'm not sure it was a higher level. I think it was more about just reiterating our extra concerns.
**** DARREN BRUCE SMITH FXXN MR REDFORD
PN447
You've given evidence to the effect that you've had some phone calls with people in the break and those people have told you that among other things some of your employees have been contacted by telephone with respect to a rally proposed for tomorrow?---Yes.
PN448
You have no idea of the nature of those calls, do you?---No.
PN449
For example, you don't know that the employees concerned weren't told if they were working to go to work?---No.
PN450
Finally, how many people, how many employees do you have scheduled to work between the hours of 8 am and 9.15 am tomorrow at NGVI?---At NGVI I'd suggest it'd be less than a dozen.
PN451
And NGVA?---Maybe six to eight.
PN452
Can I suggest to you that at NGVI there are less than half a dozen people rostered on to work prior to about 9.30 am?---You can suggest it.
PN453
Is that right?---I said six to eight, that's my impression.
PN454
Thank you. Thank you, Commissioner.
PN455
THE COMMISSIONER: Very well. Thank you once again for your evidence. Yes, I take it there's no re-examination?
PN456
MR LEVIN: No, sir.
THE COMMISSIONER: Sorry, I beg your pardon. Yes, thank you again for your evidence and once again you're released from your oath, Mr Smith. Thank you.
PN458
THE COMMISSIONER: That's your evidence, Mr Levin?
PN459
MR LEVIN: That is, sir.
PN460
THE COMMISSIONER: Very well.
PN461
MR LEVIN: Commissioner, it is always difficult when we are dealing with an application about proposed industrial action.
PN462
THE COMMISSIONER: Or pending or probable.
PN463
MR LEVIN: Yes, indeed.
PN464
THE COMMISSIONER: Well, pending perhaps is not as - - -
PN465
MR LEVIN: Threatened, impending.
PN466
THE COMMISSIONER: Threatened, impending or probable.
PN467
MR LEVIN: Yes. It's perhaps easier for you - - -
PN468
THE COMMISSIONER: Or organising, being organised.
PN469
MR LEVIN: Correct, correct. The history that you have in the evidence before you says that we have - and indeed the cross-examination questions themselves by my friend indicate an increasing frustration on the part of the LHMU and the word frustration is used in their notice. They have been informed, as was the evidence, that there was a new CEO, or I think might have been a GM coming. There has not been any finalisation of an EBA. There has been correspondence with the LHMU attempting to finalise negotiations to the point of having an agreement and being unable to achieve that. That is combined with the union's own notice saying that guards from all sites have expressed their frustration that Wilson has been stalling, so it's not only what I would say is the frustration of the officials and employees of the LHMU but they say, if they're to be taken at their own notice, that guards from all sites, and I emphasise all the sites, have expressed their frustration that Wilson has been stalling their EBA for over two months.
PN470
The nature of the discussions at the rally tomorrow are not of a nature, sir, where it is to be expected on the face of this notice
that it's a happy meeting. It's not a meeting to discuss good progress or indeed a meeting to discuss something that's not contentious
or to get a vote. It's to discuss the frustrations about that which I've raised. Also the notice talks about that you're being
paid less than Group 4, another security company. It's exploiting people to get their work mates to the rally. It implies that
Wilson - or states that Wilson has made a promise and to help make Wilson keep their promise. It's signed at the bottom by - or
authorised I should say, not signed, by Jess Walsh, the assistant branch secretary, dated
9 June 2006.
PN471
There's been no suggestion that it's not an official notice of the LHMU. Your own involvement, as indeed all members of the Commission, is extensive and over a long period of time. The Act in section 496 uses the phrase appears, if it appears to you, sir. That doesn't mean that you have to have rock solid evidence that it's definitely going to be a meeting that will be either, (a), attended by people who should be at work at 8.15 or that at 9.35, those at the NGVA who are supposed to be at muster, or 9.45, at muster at - I beg your pardon, 9.40 I believe, at muster at NGVI will not be at that muster. You don't have to have definitive proof that it isn't going to happen.
PN472
These matters have to be viewed in a context of industrial reality and industrial experience. It is the experience in my submission of my 18 years that rallies of a nature of this type tend to have a life of their own. The last time a meeting was held in respect of just the NGVI employees alone who in a more controlled scenario one might say, might have been able to be gotten back to work at their ordinary start time and they did not, the meeting didn't go from nine till 9.40, it went from nine till one. You've had evidence, hearsay albeit, that the employees, if I best recall the evidence, are going to be asked if it's their desire to walk off the job tomorrow and again you'll give that the appropriate weight for hearsay evidence, but it's evidence given in good faith by the witness.
PN473
You should take into account that not only the nature of the meeting being contentious but also in a Jones v Dunkel issue that the union has chosen to not call Ms Walsh who was here earlier or indeed any other official to give evidence as to what will happen. It cannot be said by them that they were able to call any evidence to give you any comfort that this is going to be a meeting that will, at least in respect of NGVA and NGVI employees, conclude in sufficient time for them to be at work. When I say conclude, I mean that the actual rally will be ceased, that the officers of the union will depart that location and again I would ask you to take account of industrial reality and your own observations over the years that officials of the union are extremely unlikely to in their face of their members wanting to continue discussing topics as keen, of interest to them as their wage rates in an EBA that they're going to say no, we just have to go now, we have to finish the meeting, sorry, our time's run out, you've got to go back to work.
PN474
I would ask you to take account of the fact that this rally notice does not have an end time on it. It doesn't say time 8.15, for example, to 9.25. It's just an open start time. I ask you to take account of what you think, what it appears to you is likely to happen tomorrow because that at the end of the day is really the decision you have to make on the evidence before you, but not just as I say, crystal ball of absolute evidence as my friend would have you focus on. He will no doubt say, well, you can't know that they're not going to go back to work, you can't know that people will turn and look at our notice he will say, it says under the action in exhibit 3, guards who are not working are being asked to rally.
PN475
What I would ask you to do is take account again of the reality and draw the natural and probable implication that what this is is not a notice designed to ensure that this is a meeting that is to occur outside of working hours but a notice designed and crafted in our submission with the intent that it will look like that but in all likelihood and industrial reality will indeed attract people who otherwise should be at work because they are keen to hear about the "being left behind", "Wilson being stalling their EBA" and "making Wilson keep their promise". They have a strong motivation to do so and so in terms of how I would suggest to you you should form a view as to how it would appear to you - - -
PN476
THE COMMISSIONER: You're asking me to see it as a provocation.
PN477
MR LEVIN: Yes, I am. And to take that into the context under subsection (1)(b) of 496, to not look just at the wording of the notice but to look at the industrial reality of is there some unprotected action, and there's no suggestion that anything is protected. The suggestion by my friend will be that it's lawful because it doesn't ask people to come if they are supposed to be at work and it doesn't suggest that people won't finish either, that they won't finish in time to start their jobs elsewhere.
PN478
THE COMMISSIONER: What you're really asking me to conclude as a matter of fact is that at two levels, first of all, that the notice is more than it appears to be, that it actually constitutes provocation to industrial action.
PN479
MR LEVIN: Yes.
PN480
THE COMMISSIONER: And secondly, quite apart from the notice, that there's a probability the employees may take their own initiatives.
PN481
MR LEVIN: And thirdly I would add to that, that it is likely that the officials of the union will not cease the meeting in sufficient time and in a sufficiently clear manner to actually ensure that people return to work because again we know from many cases that even if the officials were to depart the scene and were to tell people that it's now legally time to stop the meeting, that a meeting that is an hour in dealing with these issues is likely just to continue and that the employees are likely to in fact of their own momentum continue it. In other words, there is nothing that the union will be able to do once it has begun the snowball rolling to stop it even if they walk away from the site.
PN482
I also ask you to take account of the fact that I have asked my friend whether they would be prepared to issue a notice on letterhead this afternoon to each and every site - well, I in fact more accurately ask them to provide us by 4 o'clock today on LHMU letterhead a notice that is headed LHMU rally to say Wilson and LHMU attended today at the Australian Industrial Relations Commission, please be aware that the LHMU notice is stated to be only for -
PN483
Guards who are not working. It is unlawful for any employee to attend the rally if it means you will not be at work for all of your shift. Breach of this may result in warning or dismissal.
PN484
And he does not have instructions to provide that to me by 4 o'clock today in order to at least make it further and clearer to employees and I think an implication can be drawn from that that regardless of the actions of the union that may happen tomorrow and its officials, that the actions that have already occurred leave it very much the case that you should draw the view that it appears to you that industrial action by employees of Wilson that's not protected action is impending tomorrow, impending in that it is about to occur, that it is separately probable, if not impending, probable, which again means you don't have to form a view that it is going to happen but that it's probable that it's going to happen, and/or thirdly, that what is being organised is industrial action and not a notice and indeed a system of controlling the nature of the rally that is clearly designed to ensure that it will be lawful action.
PN485
I think that although not directly analogous it's consistent with the approach in our submission taken on 6 January where the meeting beings at nine but just rolls on after hours and I'd submit that you could draw the inference that had the officials left at 9.40 at that time the meeting in all likelihood would have continued on because people were heated up at that time about proposed AWAs for trainees. You also should take into account, sir, the fact that the union has now gone wider than the larger sites of NGVA and NGVI into other large sites and indeed more widely so that there is now an intent to rally all sites as expressed in exhibit A3.
PN486
So again what should draw you to the view that it's impending or probable or what's being organised as industrial action is also in our submission a widening of the type of action from a controlled people at one site only to all sites getting this notice. I would submit to you, sir, that there's also been evidence that this is only the start of potentially further industrial action, not a limited short time rally about one item and therefore in accordance with the draft order that we've submitted in exhibit A2 that it should apply in paragraph 6 for two months and not just either tomorrow and/or 30 June for the Picasso opening, that there are appropriate and lawful ways for unions to meet members who wish to hold discussions, that although it is true that the Act has changed the right of entry provisions in relation to holding discussions so that you can be directed as to a route and to a location.
PN487
It is still the right of any union to call meetings of - or to inform members that they're having a meeting during lunch breaks and for those members to attend during those lunch breaks and be informed. So it is not as if they couldn't have taken a different approach that was consistent with the right of entry provisions and the right of unions to hold discussions with affected employees that want to participate in those discussions. We have to think as well about the implications of the industrial action not in the sense of legitimacy as required by section 127.
PN488
THE COMMISSIONER: Why do we have to take the implications of the industrial action into account?
PN489
MR LEVIN: I withdraw that, sir. I withdraw that.
PN490
THE COMMISSIONER: It seems to me the amendment has removed that consideration entirely as a relevant factor.
PN491
MR LEVIN: Indeed, indeed. The nature of this dispute is not over, sir. This is a dispute that until the new CEO starts on 1 July 2006 comes to grips with the issues and makes decisions about what the terms might be and whether there'll be an EBA, but this isn't a dispute likely to finish quickly. It's a matter of, understandably, great concern to any union to get EBAs in place that protect conditions that they wish to protect and that uncertainty is likely to lead to ongoing frustration and tension between the parties and it's our submission that this Commission should ensure that in making a decision about orders under this section that it give effect to the intent of the legislature which we would submit is a tighter and more direct and swifter outcome for a party who is the subject of proposed unlawful action and that to given an interpretation to these provisions that would suggest that you need to know for sure it isn't going to be - I beg your pardon - know for sure that it will be unlawful before an order would be made would be too conservation an approach for this Commission to pursue moving forward.
PN492
In terms of the wording of the order I would like, if I could, to take you to paragraph 4(a) because I would like to propose an amendment to that and that is to say in the second sentence where it says:
PN493
This includes without limitation the obligation to not attend the rally proposed by the LHMU for Friday, 16 June 2006.
PN494
To amend that to say at the end after June 2006 and if you'll bear with me I'll just get some instructions on this. I am instructed to suggest an amendment to our proposed in the second sentence that deletes the phrase in the third line -
PN495
obligation to not attend the -
PN496
If you would be kind to put a line through "obligation to not attend the" and in its place insert - I'm sorry, also if you could delete the word "the" before. So it should say -
PN497
This includes without limitation, that in respect of the -
PN498
It will then continue with the existing words -
PN499
rally proposed by the LHMU for Friday, 16 June 2006,
PN500
and insert about 10 words that say -
PN501
employees shall ensure that they fully attend and complete their work shift on that day.
PN502
Fully attend and complete their work shift on that day.
PN503
THE COMMISSIONER: I will read to you what I understand to be the amended paragraph of part 4.
PN504
MR LEVIN: Thank you, sir.
PN505
THE COMMISSIONER:
PN506
Each employee must immediately stop, not take and not engage in or threaten to engage in industrial action. This includes without limitation, that in respect of the rally proposed by the LHMU for Friday, 15 16 June 2006, employees shall ensure that they fully attend and complete their work shift on that day.
PN507
MR LEVIN: Thank you, that would be the proposed amendment to the order that we're seeking. Sir, in conclusion we would say that if notices of this nature are to be given legitimacy by this Commission that the consequence will be that that will become then the precedent and the form that people then may attempt to use in the future to, in our submission and I don't wish to put this too highly, but to disguise what is intended to be unlawful industrial action in a form that may appear to have legitimacy to it but which industrial reality is likely to be impending action, probable action and indeed action being organised by the LHMU in this case which would be industrial action as defined in the Act. If the Commission pleases. Unless you have any questions you wish to ask me, sir?
PN508
THE COMMISSIONER: No, thank you, Mr Levin.
PN509
MR LEVIN: Thank you, sir.
PN510
THE COMMISSIONER: Mr Redford.
PN511
MR REDFORD: Commissioner, I would like to seek a short adjournment of no more than 10 minutes to get instructions if that's all right.
PN512
THE COMMISSIONER: 10 minutes.
<SHORT ADJOURNMENT [2.50PM]
<RESUMED [3.18PM]
PN513
THE COMMISSIONER: Yes, Mr Redford.
PN514
MR REDFORD: Commissioner, before I begin submissions I'm going to give some undertakings on behalf of the union on the record and those undertakings are that the LHMU will at the commencement of any rally that takes place tomorrow, 16 June 2006 in the vicinity of the NGVI site advise any security officer present who is supposed to be working at that time - - -
PN515
MR LEVIN: Sorry, if I could ask Mr Redford just to go a little slower for my hand, advising?
PN516
MR REDFORD: Security officer present at the rally who is supposed to be working at that time that they should return to work. Sorry, Commissioner. Advise will be provided to persons present at the action that persons absence from work is not protected action and that accordingly employees engaging in such action are not immune from discipline or indeed any other action that the company may wish to take. The LHMU will also advise all persons present that security officers who are rostered to begin work at a particular time should begin work on time and that a failure to do so would be action of an unprotected nature.
PN517
The LHMU has also offered the company that the union would be prepared to put together a modified version of exhibit A3 which is a
notice entitled Wilson Action and the modification would be to make it clear that the proposed action does not involve security officers
who are supposed to be working and that on Friday,
16 June 2006 security officers who are rostered to work should start on time. Commissioner, it's been put that what you're required
to do within the meaning of section 496 of the Act is determine whether it appears that industrial action is happening or is threatened,
impending, probable or being organised and that you can form your view about whether such action appears to be deemed organised or
is threatened or is probable on the basis of something less than rock solid evidence.
PN518
You're being asked to form a view about your jurisdiction in this matter on the basis of what you think might happen or indeed you're being asked to predict, Commissioner, what might happen on the basis of a small amount of evidence and to start with, Commissioner, I take issue with that approach. It's my submission that you need to satisfy yourself of your jurisdiction on the basis of clear evidence and you need to do something more than simply predict whether something may or may not occur. There has not been evidence in my submission presented to you that any employee of the applicant has been organised or encouraged to perform work in a manner different from the manner in which it is customarily performed, or engage in a ban or limitation or restriction on the performance of work, or most importantly, refuse to or fail to attend work on 16 June 2006.
PN519
There has not been any evidence, Commissioner, presented to you that any employee intends to do so. There's not been any evidence presented to you that any person including any employee will be hindered or obstructed in their attempt to gain entry to the National Galley of Victoria International tomorrow. It's my submission, Commissioner, that the whole jurisdictional basis for which the applicant contends in this matter is based on the evidence that you've heard of an action that took place at this site involving stop work on 6 January 2006, but the evidence has also been, Commissioner, that there were particular circumstances that gave rise to that action and that they involved, if I can put it this way, Commissioner, a broken promise engaged by the company with respect to Australian Workplace Agreements, and it's my submission that a single incident of this nature is not enough to ground a finding of probability that industrial action of that kind will occur tomorrow.
PN520
I just want to emphasise, Commissioner, that that's the only evidence of any action of an unprotected nature having been engaged in by these employees at this site that's been presented to you and it's my submission that the approach of the Commission generally to this question of a course of conduct giving rise to a finding that industrial action is probable has been a cautious approach and that more than a single special case is required to ground such a finding. You're entitled to find in my submission, Commissioner, that all the evidence shows is that there has been a peaceful small community protest organised to take place in the vicinity of the NGVI site tomorrow, that that protest has been arranged by the union, that that protest may involve some employees of the applicant, none of which - none of whom, I'm sorry, will be engaged in cessation of work or absence of work in order that they attend.
PN521
Can I suggest to you, Commissioner, that any doubts you may have about that are relayed by the undertakings that have been given by the union. Can I move from that then, Commissioner, to simply just make a quick comment about the nature of the order sought. We take issue with the length of the order sought. It's my submission that an order of two months in duration is not appropriate if you were to find that you have jurisdiction in this matter, because if you find that you have jurisdiction in this matter it's only with respect to something that's apparently been organised to occur tomorrow, that any suggestion of any other action has not been ground in any sort of evidence that you should take account of and that therefore your jurisdiction which I submit doesn't exist but your jurisdiction if it did exist begins and ends with tomorrow, Commissioner, and then an order simply with respect to tomorrow is all that's appropriate.
PN522
Unless you have any questions, Commissioner, that's all I have. If it please the Commission.
PN523
THE COMMISSIONER: Thank you. Mr Levin.
PN524
MR LEVIN: Only a couple of small points, sir. In respect my friend has read out the undertakings, I understand they were undertakings, is that correct?
PN525
MR REDFORD: That's correct, Commissioner.
PN526
MR LEVIN: What they don't address is the undertaking which was sought which was a specific notice that my client could have actually exhibited at each site now and we ask for it by 4 o'clock so that we'd actually have time before people actually knock off work to actually see it and if it's just the modification of an existing notice I'd suggest that people won't look at it again because they won't know it's a modified notice and they won't - the average employee is not going to have the time to re-read it to see what the amendments might be. So the other thing that we'd ask for was some undertaking that the meeting would end at 9.30. We had different discussions about how that could be but we weren't able to reach any agreement.
PN527
So in the absence of any undertaking that the meeting will actually end at 9.30 and no agreement to post some stand alone notice today to ensure that any doubt about whether people are going to not be at work tomorrow to attend the rally or that if at the rally they're going to continue beyond is removed, that doubt still remains and we'd suggest that that adds to the probability of it being - that tomorrow there'll be unlawful action. And you would note that the form of the order we have sought is not don't have the rally. It's to take account of ensuring that that rally does not become unlawful industrial action.
PN528
Finally, I haven't, in case there's any doubt in the Commission's mind, I haven't asked you to form a view based on any prediction. I ask you in effect to draw an inference from the evidence before you and from the Commission's industrial understanding of how these matters tend to go and history is a great predictor and we obviously ask you to draw on the evidence that has been given in relation to the history, not only of the incident of the 6th but of the discussions and the frustration. If the Commission pleases.
PN529
THE COMMISSIONER: Thank you. I will reserve my decision - sorry.
PN530
MR REDFORD: I'm very sorry, Commissioner. Sorry, Commissioner, I think I just need to clarify a point and that's that the union has given undertakings about what will be said to the rally tomorrow. With respect to what I've said about a modified notice, I prefaced my comment with the words if the company is interested. I realise now that's less than clear. What I am suggesting is if the company want to have discussions about the orders that they're seeking and would be interested in a notice, modified notice prepared by the union to allay any concern that they have, we're happy to have those discussions.
PN531
I am not giving an undertaking that we would produce that notice in any event, Commissioner. I'm sorry for the confusion about that.
PN532
THE COMMISSIONER: Understood. I will reserve my decision but I hope to have it posted electronically by no later than 4.30. Thank you.
PN533
MR LEVIN: If the Commission pleases.
PN534
MR REDFORD: If the Commission pleases.
<ADJOURNED INDEFINITELY [3.33PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 BUNDLE OF RIGHT OF ENTRY NOTICES PN20
EXHIBIT #A2 DRAFT ORDER PN34
EXHIBIT #A3 RALLY NOTICE PN34
DARREN BRUCE SMITH, SWORN PN39
EXAMINATION-IN-CHIEF BY MR LEVIN PN39
CROSS-EXAMINATION BY MR REDFORD PN96
THE WITNESS WITHDREW PN165
DARREN BRUCE SMITH, RECALLED ON FORMER OATH PN186
CROSS-EXAMINATION BY MR REDFORD, CONTINUING PN186
RE-EXAMINATION BY MR LEVIN PN361
THE WITNESS WITHDREW PN379
DARREN BRUCE SMITH, RECALLED AND RESWORN PN398
FURTHER EXAMINATION BY MR LEVIN PN398
EXHIBIT #A4 LETTER TO THE LHMU, 05/01/2006 PN427
FURTHER CROSS-EXAMINATION BY MR REDFORD PN439
THE WITNESS WITHDREW PN457
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