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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 15294-1
COMMISSIONER SIMMONDS
C2006/2731
NESTLE AUSTRALIA LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/2731)
MELBOURNE
8.12AM, MONDAY, 26 JUNE 2006
Continued from 23/6/2006
PN1
THE COMMISSIONER: Yes, Mr Bourke?
MR BOURKE: Thank you, Commissioner. I call Mr Michael Karakatsanis.
<MICHAEL KARAKATSANIS, SWORN [8.13AM]
<EXAMINATION-IN-CHIEF BY MR BOURKE
PN3
MR BOURKE: Commissioner, could the witness be provided with a copy of B1?
PN4
Mr Karakatsanis, could you please face the Commissioner and state your full name?---Michael Karakatsanis.
PN5
And your professional address?---650 Lorimer Street, Port Melbourne.
PN6
And your occupation?---I'm the Employee Relations Manager for Victoria working at Nestle.
PN7
Now, can you open up the folder in front of you behind tab 4, and then if you go to tab A, behind tab A?---Yes.
PN8
Is that a statutory declaration you've made in this proceeding?---Yes, it is.
PN9
That you declared on 23 June 2006?---Correct.
PN10
And you're familiar with the contents of that declaration?---Yes, I am.
PN11
Are the contents true and correct?---Yes, they are.
PN12
Now, can I provide you this document please. Is that a document that came to your attention after the hearing last Friday afternoon?---Yes, it is.
PN13
And have you communicated to the union agreeing to those meetings?---We - no, I haven't communicated to the union. We received the letter on Friday afternoon.
PN14
Do you take no objection to the meetings?---No.
I tender that document, if the Commission pleases.
EXHIBIT #B2 LETTER TO MR SCOTT FROM
MS HALFPENNY DATED 23/06/2006
MR BOURKE: Just remain there please.
<CROSS-EXAMINATION BY MS GOOLEY [8.16AM]
PN17
MS GOOLEY: Now, the company approached the union didn't it in relation to the national day of protest on 28 June?---The company approached the delegates at first instance, but also approached the union, that's correct.
**** MICHAEL KARAKATSANIS XXN MS GOOLEY
PN18
And if we just limit it to the site that you seek in the orders in relation to which is Campbellfield. So the company approached the union?---Correct.
PN19
The union didn't initiate any meetings with its members prior to that approach?
---Not that I'm aware of.
PN20
And on your knowledge to date no decision has been made by your workers at that site to attend the rally?---On my knowledge that's correct.
PN21
And there has been no meeting at which the union has made any recommendation to the members to attend the rally?---There has been a meeting regarding the compromised position put by the company.
PN22
And that the union put the compromised position to the employees?---That's correct, that's my understanding.
PN23
And the employees rejected that compromised position?---To my understanding that's correct.
PN24
And to your knowledge no resolution was put by the union at that time for the employees to attend the rally?---To my understanding that's correct.
PN25
Thank you. No questions.
PN26
MR BOURKE: No re-examination.
THE COMMISSIONER: Yes, thank you, Mr Karakatsanis. You can stand down. You're free to remain if you wish.
<THE WITNESS WITHDREW [8.17AM]
MR BOURKE: Commissioner, I now call Roger Scott.
<ROGER IAN SCOTT, SWORN [8.17AM]
<EXAMINATION-IN-CHIEF BY MR BOURKE
PN29
MR BOURKE: Mr Scott, would you face the Commissioner and state your full name?---Roger Ian Scott.
PN30
And your professional address?---1585 Hume Highway, Campbellfield.
PN31
And your occupation?---I'm the factory manager of the site there at Campbellfield.
PN32
Now, you have a folder there in front of you, can you turn over to tab B. Is that a statutory declaration you've made for this proceeding,
declared 23 June 2006?
---That's correct.
PN33
And you're familiar with its contents?---Yes.
PN34
And is the contents of that statutory declaration true and correct?---Correct.
PN35
Can I just show you a document. Now, are you aware where that document was from?---This is a scan I think of the document that was taken from our union noticeboard.
PN36
At Campbellfield?---Yes.
PN37
And when was it taken?---Friday, last Friday.
I tender that, if the Commission pleases.
EXHIBIT #B3 AMWU NORTHERN NEWS
MR BOURKE: I have no further questions.
<CROSS-EXAMINATION BY MS GOOLEY [9.19AM]
PN40
MS GOOLEY: Good morning, Mr Scott?---Good morning.
PN41
You're responsible - you're the factory manager at Campbellfield?---Yes.
PN42
And at that site prior to the company initiating discussions with the stewards about the national day of protest on the 28th, are you aware of any meetings of members of - sorry, of any workers at your site to discuss that rally?---Prior to us engaging in discussions?
**** ROGER IAN SCOTT XXN MS GOOLEY
PN43
Prior to you engaging in discussions?---I am not aware of that, no.
PN44
So the sequence of events was you initiated discussions with the
stewards?---Correct.
PN45
They told you that no decision had been made?---They told me that they needed to discuss that with Bronwyn.
PN46
And then you had meetings at which Ms Halfpenny was in attendance?---We have had some meetings, yes.
PN47
And you put a proposal to the union to put to your work force?---We put a number of proposals, but we did place one minimisation strategy by letter, yes.
PN48
And you were advised that that was rejected by your employees?---Correct.
PN49
And were you advised whether any resolution had been passed by your employees in relation to attending that rally on the 28th?---I was advised that there hadn't been a meeting to discuss the 28th.
PN50
Now, you made reference in your statement to the deed?---Correct.
PN51
Are you familiar with the content of that deed?---I am not fully familiar with it, no.
PN52
So you can't tell me whether that deed contains an undertaking by the AMWU that it won't, if the deed is signed it won't participate
in any national days of protest?
---I was indicated to by Tony Mavromatis that if the deed was signed that there would be strong consideration that there would be
no involvement in the national day of protest, and just as recent as last Thursday in a meeting with Ms Halfpenny I was advised that
if we had have signed the deed we wouldn't be discussing this matter now.
PN53
So you're saying that your evidence is that if the deed was signed there would be no national day of protest at which AMWU members would participate in?---I don't have any written evidence of that. That's what was indicated to me in discussions.
PN54
I put it to you that the AMWU did not tell you that if the deed was signed that their members would not participate in the national day of action?---Sorry, that's not correct.
**** ROGER IAN SCOTT XXN MS GOOLEY
PN55
Thank you.
PN56
MR BOURKE: No re-examination, sir.
THE COMMISSIONER: Yes, thanks, Mr Scott. You're free to go. You can remain if you wish?---Thank you.
<THE WITNESS WITHDREW [8.22AM]
PN58
MR BOURKE: Commissioner, I call John Newman. I'm just warned that he has a bit of a hearing difficulty.
PN59
THE COMMISSIONER: We're a bit that way I think.
PN60
MR BOURKE: Sorry?
PN61
THE COMMISSIONER: It happens as you get older I'm afraid.
PN62
MS GOOLEY: Sorry, Commissioner, I don't require this witness for cross-examination.
PN63
THE COMMISSIONER: All right. You're happy to accept the documentation?
PN64
MS GOOLEY: Can I just have five minutes?
PN65
THE COMMISSIONER: Certainly. Well, subject to what Mr Bourke might say.
PN66
MR BOURKE: Well, yes, I've got no objection to it. If I could just close my case?
PN67
THE COMMISSIONER: Do you want to do it now? It's a question of whether you're going to bring any evidence I think before he closes his case.
PN68
MS GOOLEY: Well, that's what I want to discuss.
PN69
THE COMMISSIONER: Yes. So we'll adjourn until 8.30.
<SHORT ADJOURNMENT [8.23AM]
<RESUMED [8.33AM]
PN70
THE COMMISSIONER: Ms Gooley?
MS GOOLEY: I call Bronwyn Halfpenny.
<BRONWYN HALFPENNY, AFFIRMED [8.34AM]
<EXAMINATION-IN-CHIEF BY MS GOOLEY
PN72
MS GOOLEY: Thank you, Ms Halfpenny. Could you tell the Commission your name and work address please?---Bronwyn Halfpenny, 440 Elizabeth Street, Melbourne.
PN73
And, Ms Halfpenny, what position do you hold with the AMWU?---I am the Regional Secretary of the Food and Confectionary Division of the AMWU.
PN74
Thank you. Ms Halfpenny, you were in the Commission when Mr Scott gave his evidence?---Yes, I was.
PN75
And you heard Mr Scott say that - no, sorry, can I ask you this question, Ms Halfpenny. Did you tell Mr Scott that if Nestle signed the deed that there would be no discussions about the national day of protest?---No, I didn't because that wouldn't be correct.
PN76
Thank you. And, Ms Halfpenny, you notified Nestle that you intended attending the site at Campbellfield today. For what purpose
are you attending that site?
---Well, to avoid any problems with right of entry we gave notice, I put in the letter to give notice, basically to see people during
their breaks, members, to really let them know what's happening today because, you know, I think that we should know that we're considering
them and what their companies do.
Thank you. I have no further questions.
<CROSS-EXAMINATION BY MR BOURKE [8.35AM]
PN78
MR BOURKE: Thank you, Commissioner.
PN79
Ms Halfpenny, I want to ask you some questions first about 30 June 2005, the first protest rally, do you understand?---Yes.
PN80
Do you remember that event?---Yes.
PN81
And I want to ask you in particular about the Campbellfield site, okay?---Mm.
PN82
Now, the AMWUs position was to support that protest rally back in 30 June 2005?---Well, I don't know in terms of resolutions. I don't think there was any resolutions or overall formal decisions.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN83
Just come back to the AMWU as an organisation. They were supporting the protest rally?---Yes.
PN84
And they put out notices out at Campbellfield to urge workers to attend the rally?
---I don't remember their notice but I think there probably would have been stuff sent out to shop stewards.
PN85
Okay. And you'd be well aware what - you attend Campbellfield from time to time?---I do.
PN86
And you have a feeling for the views of the work force at Campbellfield?---Well, yes, sometimes - yes, I do, but sometimes they surprise me.
PN87
A view back on 30 June 2005 was a view to support the protest of the Work Choices legislation, correct?---Yes.
PN88
And in fact of that work force is that 400 people at that work force in Campbellfield?---I think so, yes.
PN89
And 100 per cent of them went out on that day, 30 June 2005, didn't they?---We had a meeting and our members voted to do that by a majority.
PN90
If you just concentrate on answering my question?---Yes, sure.
PN91
100 per cent of that - - -?---Well, no one told me that nobody worked - that anybody worked that was a member of the AMWU. Although I'm not sure about the, like, the Skilled Engineering and sort of the contractors and that.
PN92
I see. But it was essentially all three shifts went out?---Yes, they did.
PN93
Yes. And it was essentially one out all out in relation to that rally?---No. Well, we had a - the resolution was I think at that time, yes, by a majority vote people decided to participate in the day of protest.
PN94
Well, just concentrate. So it was effectively one out it was all out across all three shifts?---That was not the decision. The decision was, there was a majority vote to note work and to participate in the rally.
PN95
The outcome - - -?---I'm not sure what the - is there a difference?
**** BRONWYN HALFPENNY XXN MR BOURKE
PN96
No, okay. Well, the outcome was that all the three shifts went out that touched that day?---Yes, that's right.
PN97
And you had a meeting, you had a mass meeting that you conducted three days before the 30 June 2005 protest rally didn't you, at Campbellfield?---Look, I can't - we had a meeting but whether it was three days before or.
PN98
But you agree it was only a couple of days beforehand?---It was about something else as well wasn't it, that meeting?
PN99
Well, can you just concentrate on my question? Do you agree it was only a few days before the protest rally occurred?---I couldn't say if it was only a few days. I'm not disagreeing with you, but I don't know if it was.
PN100
And at that meeting you voiced the AMWUs position to support the protest rally didn't you?---I would have, yes.
PN101
Yes. And you knew that supporting the protest rally would encourage people to stop work and attend the rally?---Yes.
PN102
Yes. And you supported the decision that there be a 24 hour stoppage that day on 30 June at that meeting didn't you?---Was that - that was the first one?
PN103
Yes, the first one?---Okay. Because that wasn't - I didn't support that. I think it was for the second. I'm not sure about the first, but that wasn't the proposal that was put, to have the 24 hour stoppage.
PN104
What you said - - -?---But I'm not sure if it was for the first one or the second one.
PN105
Okay. But going back to the first rally, your position was consistent with the AMWUs position as to that rally?---To support people going to the rally, yes.
PN106
Yes. Now, I want to take you to the second rally. You recall that occurred on
15 November 2005?---Yes, I remember that one more, yes.
PN107
And the AMWUs position had not changed in relation to the second rally had it? It remained the same?---It was still about participating in the rally, going to the rally, yes, protesting against the laws.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN108
It was about showing support against the legislation?---Yes. It was making a public protest that the people weren't happy or were opposed to the laws that were going to be introduced.
PN109
And it was also about the union movement showing an act of solidarity against this type of legislation?---Well, I think it was more about having lots of people demonstrating against the new laws that were about to be introduced.
PN110
Numbers were seen as a good sign, if you could get a lot of people?---Yes, I suppose that was the public sort of image, yes.
PN111
And part of that public image, wanting to present that public image the AMWU if necessary wanted people to stop work in order to make up those numbers to show - for that - to give an indication of objection?---Yes. I think the - well, from my side of things it was about encouraging and supporting people to be at the protest.
PN112
Yes. And the AMWU put out pamphlets again for that rally urging people to attend the rally?---Yes.
PN113
And you attended the mass meeting, you conducted the mass meeting prior to
15 November when it was decided to have a 24 hour stoppage so people could attend the rally, correct?---Yes, I was at that meeting.
PN114
And you urged at the meeting for people to attend the rally?---Yes.
PN115
And for people if necessary to not attend work in order to attend the rally?---Well, I think we put up a - the resolution was that people attend the rally and there - I think it was at the - the recommendation was for four hours to attend the rally, so by the time to get in there and come back and so on.
PN116
At that meeting Nestle had put up a proposal to minimise the disruption at the Campbellfield plant hadn't they for 15 November?---Yes, there had been discussions, yes.
PN117
And that was rejected at that meeting?---Was that the proposal for the four hours, that was the company's proposal?
PN118
Yes. That was rejected?---That was rejected, yes.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN119
And you supported that proposal being rejected didn't you, at that meeting?
---Well, actually no. I put up as a recommendation that people should stop for the four hours.
PN120
I see. So you were supporting at least some form of stoppage to attend the rally?
---Well, we were supporting the company's proposal.
PN121
Okay. Well, you were supporting some form of stoppage to attend the rally then?
---Yes. The company proposed people stopping for the four hours to go to the rally, and that was put and recommended to the meeting.
PN122
Yes. So you were supporting some form of stoppage to attend the rally.
PN123
MS GOOLEY: Commissioner, Ms Halfpenny has answered that question now twice, and just repeating the same question which she's already answered twice is not necessary. She's answered the question, and just because Mr Bourke doesn't like the answer is no justification for just repeating the same question.
PN124
MR BOURKE: And on 15 November again 100 per cent of the work force at Campbellfield went out and stopped work didn't they?---Yes. I'm not being difficult, but I'm assuming because no one complained that somebody worked or something, yes. I don't know of anyone that worked.
PN125
Yes. And that was across all three shifts?---Yes.
PN126
And again from your dealings with the work force at Campbellfield you would say the attitude of the work force had not changed and that they had a strong view against the proposed legislation?---They did, yes.
PN127
And that was consistent with the AMWUs view?---That's right.
PN128
They had a strong view against the legislation?---Yes.
PN129
Now, can I come to the lead up to the third protest rally which is on Wednesday, right, 28 June?---Mm.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN130
You, through your delegates and organisers, made it known to the work force at Campbellfield that the AMWU was supporting this rally?---Well, actually there hadn't been a lot of - I hadn't been during the breaks, which is sort of where the main communication is, and I think members were asking about what was sort of happening about 28 June.
PN131
But would you expect your delegates and organisers would be speaking to the work force about the AMWUs position concerning the 28
June 2006 protest?
---They were talking to them about the laws, and the laws are terrible, and examples of what the laws had already done in places
like Finlay and Greer Industries and so on. So the discussions that I guess the stewards had, because I don't think I'd been in
the lead up to the rally - well, look, I may have been during some debates - but basically there had been talk, yes, about how the
laws had affected people at various places.
PN132
And the AMWU supported this rally, the third rally?---I don't know if there was - I think there was some Trades Hall leaflets and posters at the plant.
PN133
And your delegates would have organised to put those leaflets up?---Well, it could have been - well, it may have been them, yes.
PN134
And is it fair to say that the AMWUs position is probably strengthened in terms of the views against the legislation now that the legislation is in place?---It's always been pretty much the same.
PN135
It's always been a strong position?---Mm.
PN136
Right. And from your dealings with the work force you've got no reason to take the view of the work force's attitude to the legislation as changed, have you? If anything it's probably got stronger hasn't it?---Well, their views on how to deal with the new legislation may have slightly changed, because the first two rallies before - were before the legislation was passed, and it was a matter of protesting against something to try to make it not happen or to change it or to make it - to water it down or whatever. I guess there's probably a slight change in the attitude now that legislation is there, and what do you do about it once it's there.
PN137
But there's still a strong feeling within the work force, as with the AMWU, about the legislation?---I think - yes, I think so, but, yes.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN138
Now, are you aware there's been negotiations either through you, organisers or delegates at other Nestle sites to minimise disruption for 28 June?---Yes, I know there's been meetings with stewards, and I've been involved in some of them. We're talking about Broadford, Campbellfield, Echuca and Pakenham. Yes, I probably don't know a lot about Pakenham.
PN139
But you're aware that at Broadford there was an arrangement struck with the AMWU about an RDO for that day?---Well, my understanding was that the company used - the enterprise agreement there provides to have the factory shut down every second Monday for their 36 hour week, and the company used a provision of their agreement which said that there could be one or two RDOs per year changed at the discretion of the company. So basically a notice was put up on the board signed by the factory manager of that plant that due to production requirements or whatever the 28 June would be an RDO in accordance with the EBA, that at their discretion they were able to change it.
PN140
You indicated to management you were happy that that arrangement was put in place to allow everyone to get to the rally, didn't you?---No, we had no talk about that.
PN141
Did you indicate to management that you were happy that that arrangement had been put in place?---I don't think so, no. I didn't make any comment on it. That was at Broadford.
PN142
I see?---I think the discussions there were with the stewards, where it was basically told to them that that was what was happening, or whether they just saw it because the notice was on the board, but one or the other, and the stewards told me.
PN143
I see. Well, were you aware that there was an arrangement in place at Pakenham?---I'm not - as I said before, I'm not sure of what the arrangements are.
PN144
I see. And are you aware that in Echuca no agreement was reached, the proposal for a skeleton staff of seven people was rejected, are you aware of that at Echuca?---Yes.
PN145
Now, are you aware that negotiations concerning Campbellfield started some time in early June?---Yes, I knew that the company, I think through the shop stewards, I knew that the company was wanting to meet and talk about what was going to happen. Actually I think it was even before June.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN146
Do you have a folder in front of you? No. Can the witness be provided with B1, the folder? Ms Halfpenny, can you go behind tab 4, and then go to tab A?---Mm.
PN147
And then if you go to the last document it will have MK4 on the right hand corner. Have you got that?---Yes.
PN148
Now, you received that letter from Roger Scott, the factory manager at Campbellfield?---Yes, I think late on the Thursday.
PN149
Right. And the first paragraph is correct, he referred to some previous meetings?
---Yes.
PN150
And then he indicated what his minimum requirements were?---Yes. I've read the letter, yes.
PN151
And it was brought to your attention the critical concerns at the three dot points about low stocks?---Yes.
PN152
And difficulties with key customers?---Yes, I've read the letter.
PN153
And also are you aware that there's negotiations going on regarding capital investment at that location?---Yes. That's what the letter says.
PN154
And it was then set out, the proposal in terms of staffing?---Yes.
PN155
Right. And are you aware that night shift at Campbellfield starts at 11 pm and finishes at 7.25?---I knew it was around that time, yes.
PN156
Yes. And that would involve about 47 employees?---I'm not sure of the numbers.
PN157
But that sounds about right?---I'm not disagreeing.
PN158
And that as a result in theory - the rally starts at 10 am doesn't it?---Yes.
PN159
That shift could attend the rally and attend work the night before?---Yes, with not much sleep.
PN160
Yes. But in the past are you aware that that shift has stopped work for the previous two protests?---They did, yes.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN161
Yes. And then you have the afternoon shift, 105 employees, does that sound about right?---Yes. I'm not - - -
PN162
And that starts at 3.20 pm and goes through to 11.50 pm, does that sound about right?---Yes.
PN163
And that you agree also that they could also attend the rally without having to stop work?---They could, yes.
PN164
But you agree in the last two protests that they have all gone, they have all stopped work for their entire shift?---That's right, yes.
PN165
And then you have the day shift which starts at 7 am and goes through to
3.25 pm?---Yes.
PN166
And that involves about 184 employees?---Yes. Well, that doesn't add up to - what does that add up to? Was that 140, 107 and 47? We're saying there's about 400 people.
PN167
Well, roughly?---Is that just production workers then we're talking about?
PN168
I'm talking people, yes, under the award, the certified agreement?---Because there's a maintenance crew as well.
PN169
Well, let's not get bogged down with the numbers for a minute?---Okay.
PN170
Now, did you understand that letter, the initial proposal was that one third of the day shift would go to the rally, could go to the rally?---Yes. That's what this says, yes.
PN171
And are you aware now that the company has calculated that they in fact need 93 people on day shift to work?---Out of the - - -
PN172
Out of the day shift group?---Out of the 170?
PN173
Out of about 184 I think. Are you aware that they need about half to work that day to keep the necessary lines going?---It might have been mentioned, I'm not sure.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN174
All right. Okay. Now, you conducted two mass meetings on 19 June 2006?
---Yes. The company wanted us to - well, actually looking back it looks like the whole thing was sort of set up to come to this
today.
PN175
Sorry, can you just answer my question please?---And I understand that the company asked us to, well, to have meetings on the Monday, and that's what we did in order to cooperate with them.
PN176
Well, can you just come back to my question. Did you conduct two mass meetings on 19 June?---Yes.
PN177
Yes. And you spoke to the work force about the proposal put by Nestle didn't you?---Yes. Because on the Friday I think I'd spoken to John Newman, who is the sort of human resources manager, and they wanted the meetings early, so that was why the Monday, and he asked what would we be putting to the meetings? And I said that we would - and how would we do it? And I said that we would - - -
PN178
Well, I hadn't really asked you about that conversation. Just try and - - -?
---Would give copies of this letter to every - to members, so we made photocopies.
PN179
THE COMMISSIONER: Can I make the point, Ms Halfpenny; just answer the questions. Ms Gooley will have an opportunity to re-examine you, and if you want to - she will pick up what you need to explain?---Yes, no worries, okay.
PN180
It will just speed things all together?---Okay.
PN181
MR BOURKE: I'm just asking you some questions about what occurred at that two mass meetings that you conducted on 19 June, do you understand?---Okay.
PN182
And you read out that letter to the work force at those meetings didn't you?---Yes.
PN183
Yes. And you described the offer in that letter as a joke didn't you?---I don't think so.
PN184
Well, I suggest to you, you used the word joke didn't you?---I don't think I did.
PN185
You used something similar to that expression didn't you? You attacked the proposal?---I think what we did, we read it out. The history of that place is that you - - -
**** BRONWYN HALFPENNY XXN MR BOURKE
PN186
I'm not asking the history. I'm trying to concentrate your mind on how you put the recommendation and explained it to the members at that meeting, those two meetings?---This was not recommended. I didn't recommend this proposal.
PN187
No. Your position was to recommend that the proposal be rejected?---I think what we - look, I'm just going through what happened. I read out the thing and we did photocopies of it, and I didn't, I definitely didn't recommend it, that's true. I don't know whether I denigrated it and said it was a joke.
PN188
You did think it was a joke didn't you, personally?---Well, actually, no I didn't. What I said to Roger Scott and to John Newman - - -
PN189
No, concentrate on the answer?---But I've already explained what my position of it was, that I didn't believe that people would accept it because it was half the plant working and half not working, and that was a problem. Some people were off work without pay and some people were at work with pay, that was a problem. And that's what I explained to management when we had our meeting.
PN190
At this time you knew that the management were very anxious to know or to get a resolution concerning 28 June?---Yes, they were, yes.
PN191
And at that meeting you had management's proposal rejected?---Mm.
PN192
Could you answer because it's being recorded?---Sorry. Yes, the management proposal was rejected, yes.
PN193
And if you were serious about trying to negotiate a resolution with Nestle the best thing to do would then to work out at the meeting
a counter proposal, correct?
---Well, that wasn't what was proposed - that was not what was thought of to be done.
PN194
You've done a lot of negotiating over the years haven't you, Ms Halfpenny?---I have, yes.
PN195
And your usual arrangement is if a proposal is rejected, correct?---But this is a completely different thing.
PN196
Just listen to me. Can I just finish the question?---Yes.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN197
The usual thing is if a proposal is rejected, if you want to keep the negotiation doors open you might come up with a counter proposal, correct?---Well, that wasn't the thinking at the time. It was a last minute fitting in with the company to have the meeting to put their proposal, and as we said to the company before the meetings, that this proposal we didn't think would be acceptable to members.
PN198
Are you seriously saying you did not even think of trying to work out a counter proposal for Campbellfield?---I'm thinking that - I think there was talk with the stewards about, you know, a variety of different things and all of that, but nothing was really - this was it from the company, that's my understanding. There was not really any other proposal. I notice looking through the stuff there was a discussion or reference to people taking an RDO on that day, which is like Broadford, but as far as I'm aware that wasn't put up as a proposal. It was maybe thought about and mentioned to one or two people, but not actually put up as a proposal.
PN199
As you've said, there have been discussions since, you think late May. You weren't prepared to formulate a counter proposal at that meeting?---The company was - kept sort of saying that they were - or pleading that they wanted to know what was going to happen for operational purposes, they wanted to know what was going to happen on 28 June. And the stewards and myself had constantly said we don't know what members will decide to do. But as I said, it seems more that it was all about setting up to this day.
PN200
You didn't want to put a counter proposal did you because your position has always been an uncompromising one in Campbellfield, that everyone would go out again on 28 June?---Well, that's not right because the last, I think it was the last meeting at least, and I can't remember the one before that, the last rally, that we actually recommended people stop for four hours so they could attend the rally for the protest. So there had been.
PN201
Your position has hardened since that second rally haven't you? You're wanting everyone out at Campbellfield?---But everybody went out last - - -
PN202
No. Your position, you are wanting everyone out at Campbellfield aren't you?
---Well, as I said, in this case we put the company proposal, we didn't think it would get up, and it was rejected. People at the
plant, it's true, don't normally make a decision that some people work and some people don't, so that is true.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN203
Do you agree there's no point in rejecting a minimisation strategy if people aren't planning to stop work on 28 June?---Well, as I said before, there is a different attitude, and I don't know whether people would be saying that they want to stop or not to be honest. The laws are in now.
PN204
Look, you deal with the work force on a regular basis don't you at Campbellfield?---And there's been many occasions where what I've thought people would do, they haven't done.
PN205
Your best guess?---I can give a number of examples of that happening, and I wouldn't want to speak for those members. They often have different views to the union.
PN206
No indication that the attitude on this legislation has gone soft is there, no indication of that?---There's an indication that the laws are in now and what can you do once the laws are in? I don't know whether you call that being soft. Probably just more of a - - -
PN207
You told that meeting - it could have been convenient for you at that meeting to have a motion as to what people wanted to do on 28 June. It could have easily been convenient to have a motion on that day couldn't it? There was nothing stopping you. Did you think of that at the time?---About having the - - -
PN208
Okay, you rejected - you've had to discuss Nestle's minimisation proposal, that's rejected. There was nothing stopping you then to say, well, what are we going to do on 28 June?---Well, we'd agreed to have a meeting to put the company's proposal and have that voted on. That's what we agreed to do with the company, there was a paid meeting.
PN209
But you agree you couldn't look at whether you would reject the proposal unless you wanted to know what you were going to do on 28 June. They go hand in glove don't they, those issues?---Well, this was about some people working and some people not, and as opposed to whether everyone works or everyone doesn't.
PN210
Well, did you think about, okay, well, let's decide so we can tell Nestle what are we going to do on 28 June, did you think about dealing with that at the meeting, the two meetings on 19 June?---No, because we only put the company's proposal.
PN211
You told the meeting, you told the - at both of those meetings you said we're not going to put a proposal about 28 June because if we decide to stop work we want to be able to ensure they haven't got time to get an order from the Commission, you told the meeting that didn't you?---I did say that we shouldn't be making - that there shouldn't be a decision made about 28 June at that meeting.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN212
You knew - - -?---I asked them, should we make a decision about 28 June at the meeting?
PN213
Your strategy all along in this has been to delay to the very last minute getting motions to go out on 28 June hasn't it?---Well, it depends - well, I'm not sure though whether that is going to be what the decision will be at that plant.
PN214
THE COMMISSIONER: Just talking about what your strategy is?---Okay.
PN215
MR BOURKE: Your strategy has been not to have a vote on whether people are going out on 28 June until the very last minute so that if they decide to go out the company won't have enough time to come to the Commission and stop it?---But if that was the case you wouldn't have had the Nestle meetings at Echuca last week.
PN216
Sorry, I'm talking Campbellfield, okay?---Mm.
PN217
That's been your strategy at Campbellfield hasn't it?---To have the meetings late? Yes, I suppose the decision was to have the meetings late then.
PN218
And to have the vote as late as possible to stop - - -?---Yes.
PN219
Yes. Because you know that most likely the vote is going to be for everyone to go out?---I don't know that.
PN220
I know you don't know that. But from your own experience being responsible for that work force, most probably that is going to be the outcome isn't it?---Not based on the feedback that we had at the last meetings to talk about this proposal.
PN221
I see. Although the Nestle proposal is rejected?---Yes, based on everyone out or everyone in.
PN222
Yes, I see. And the AMWUs position at Campbellfield at all times has been to encourage support for the rally on 28 June?---To go to the rally, yes.
PN223
You have made it known to the work force - or I'll go back a step. The AMWU are encouraging employers to sign a site deed aren't they?---Yes.
PN224
And the site deed is to operate alongside an enterprise or certified agreement, correct?---It's a deed to protect - well, basically to have an overall thing where you're protecting all current conditions and rights and so on.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN225
And it's to cover a lot of issues that cannot under the current Work Choices legislation be able to put into an industrial agreement, correct?---Yes.
PN226
And there's a substantial AMWU campaign to get employers to sign up to this deed, correct?---Yes.
PN227
And the AMWU sees it as a very important part of it's strategy to protect it's members rights to get employees to sign up to this deed, correct?---And members see that too because it's about maintaining - - -
PN228
We'll just take it bit by bit. We'll just talk about the AMWU. You see it as very important?---Yes.
PN229
And you agree that the work force at Campbellfield will see it as very important?
---Yes.
PN230
And you have told the work force at these meetings that Nestle has not signed one of these deeds haven't you?---Yes.
PN231
And you have linked the protest against Work Choices and loss of worker entitlements with the fact that Nestle won't help the situation, are not helping the situation by signing one of these deeds. You've put the two issues together haven't you?---Well, it is all one, yes.
PN232
Yes. And you made that clear to the work force those issues are together?---Well, if you didn't have Work Choices you wouldn't need the deed.
PN233
Yes, I see. And part of your strategy to encourage people to go out and stop work at Campbellfield has been to highlight to the work force that Nestle are not signing this deed, hasn't it?---I don't know if that's part of the strategy. It's about telling people what's going on. And one of the things, when we've had the meetings with the company, the most recent meetings, of course the company has organised them because they want to keep talking about the 28 June - - -
PN234
Can I just ask about your strategy. Could you just deal with that?---Yes.
PN235
Is it part of your strategy - it's been part of your strategy I'm suggesting to encourage people to go out at Campbellfield to highlight
the fact that the rally is about the loss of rights because of Work Choices and also because Nestle are refusing to sign a deed that
would assist workers in terms of their entitlements?
---We talk about all of those things, but the 28 June is about the rally and protesting against the Work Choices legislation.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN236
Could the witness, Commissioner, be shown B3, the AMWU Northern News? I have an extra copy.
PN237
Are you aware that that's one of the bulletins put up at the Campbellfield site?
---No.
PN238
I see. Do you argue with that?---That it's been put up there?
PN239
Yes?---No. But I do know - I actually haven't - I don't know what this is.
PN240
Okay. Can you go down to the third dot point on the left hand side. Do you see there's a reference the second half of that dot point
about a site agreement to confirm conditions and company statements against you is in the legislation?
---Yes.
PN241
And then at the fifth dot point there's a note about these protests are a crucial part of the campaign, do you see that?---Yes. I'm just - I've never seen - I haven't seen this document before, I don't know.
PN242
Okay, thank you. Now, I want to take you to the 19th, come back to the 19th. You can return that please?---Okay. So what did you want to ask about the fifth dot point?
PN243
That's fine, can you just return it. I want to take you back to 19 June. At about 2.30 you received a telephone call from Roger Scott, the factory manager at Campbellfield?---Sorry, on what day?
PN244
On 19 June, the day you had these mass meetings?---Yes.
PN245
And he asked you what was going to happen on 28 June?---Yes.
PN246
You knew he was going to want to know that if you had rejected his minimisation proposal, you knew the company, that's what they wanted to know, what's going to happen on 28 June?---Yes.
PN247
Right. And you said we haven't made a decision, correct?---The members hadn't made a decision.
PN248
Yes. And you said we have to protect ourselves?---What I said, and I think what I understood - was this the one where John Newman was listening and I didn't know?
**** BRONWYN HALFPENNY XXN MR BOURKE
PN249
Correct?---Okay. Well, I suppose all the way through this the company - - -
PN250
Just concentrating - - -?---Yes, I'm trying to explain.
PN251
No, I'm not - - -?---Okay, yes.
PN252
So the way this works is that subject to the Commissioner's leave I ask questions and you answer them. It's not an opportunity for you to comment just generally about the case?---Okay, yes.
PN253
I'm trying to ask you what was said at the meeting, this telephone discussion, do you understand?---Mm.
PN254
Do you agree you used the expression, we have to protect ourselves?---Not in the context of that affidavit.
PN255
Okay. And he said to you, can we expect a bombshell next week, do you agree he said that?---I honestly can't remember if he did. I don't deny that he might have said it.
PN256
You don't dispute that. And I suggest you said, if we don't wait till next week the company is likely to take action which will damage
the union and the employees?
---I may have said something, but again it was out of context because we were talking more generally about I suppose relations between
the union and the company and what they wanted from the union.
PN257
Okay. Now, I want to take you to the meeting you had. You had a meeting with Mr Scott, the HR manager at Campbellfield, Mr Newman,
a number of AMWU delegates and yourself on 22 June starting at around 2.50 in the afternoon?
---Okay. Was that the one that Tony Mavromatis was at?
PN258
No, I don't believe he was there?---Okay. So was that the one where I - the original intention was that I was going to meet the shop stewards, and then when I got there the managers were there too?
PN259
That's correct. You got there a little bit late as I recollect?---Yes.
PN260
Do you recall that meeting?---Yes.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN261
Okay. And Mr Scott again asked you what's going on, on 28 June, agreed, at that meeting?---I'm sure he would have.
PN262
And you said we'll have mass meetings on Monday and Tuesday?---I might have said that we, yes, that we hadn't had meetings and we've only got till Wednesday to have them, so it could have been if we were going to have them they'd be the Monday or Tuesday.
PN263
Okay. And you then said the AMWUs thinking behind this is related to a section 127 order Nestle obtained back in October 2005, do you remember saying something about that?---Again that's out of context because I remember talking about that, yes.
PN264
And you mentioned the fact there had been a trade unionist visit, a person from the Philippines, and that a 127 order was obtained by Nestle?---I might have spoken about that, yes.
PN265
And you were effectively saying we're going to leave this to the last minute so you don't get another order from the Commission this time around?---No, because we were talking in a more general sense. And I don't know if I can go through what the conversation was and everything?
PN266
And you again said we have to protect ourselves here, you said that didn't you?
---Again I might have said something like that.
PN267
And you then said, if Nestle had just got the deed resolved we would not be having these discussions?---I disagree with that because I don't think that would be the case. Where there are deeds there's still being meetings of members and there's still being talk about the Work Choices legislation and protests and so on.
PN268
Well, whether that is true or not, you told Mr Scott and Mr Newman that basically it's their fault because they haven't signed up on the deed, otherwise they wouldn't have this trouble. You told them that didn't you?---I didn't think I told them that.
PN269
Yes, I see. And I suggest to you, you effectively indicated there would be a resolution at Campbellfield if Nestle came to the party and signed one of these deeds?---Whenever we have a meeting with any company at every opportunity we talk about the deed.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN270
No, I'm not - can you just answer my question please?---Well, say it again.
PN271
I'm not asking about other meetings with other companies. I suggest to you, you made it clear at that meeting that if they had have signed the deed there effectively would be a resolution to this matter?---No.
PN272
I see. And then Mr Scott again asked, well, is the meeting going to be Monday or Tuesday, he asked you that didn't he?---He may have.
PN273
Yes. And you said you will find out tomorrow?---I don't - no, I don't think that was said.
PN274
And you said we can't tell you now, we have to protect ourselves?---I don't think I said that like that.
PN275
I see. I have no further questions.
THE COMMISSIONER: Re-examination?
<RE-EXAMINATION BY MS GOOLEY [9.20AM]
PN277
MS GOOLEY: Ms Halfpenny, who first raised the deed in the context of this rally?---What do you mean, sorry?
PN278
Mr Bourke has put to you that you made the deed an issue in relation to whether this rally would go ahead. I'm saying to you, who first raised this, who first linked the deed and the rally?---Well, I think today from what the company is saying they're linking the deed and the rally. We had meetings - every time we have meetings with companies we use that as an opportunity to talk about people wanting to maintain and protect their existing conditions. It doesn't matter what the meeting is about, it's raised at every opportunity. So when the company has organised meetings to talk about 28 June, we have also raised the issue about the deed. And I remember one occasion, that's why I wasn't sure if it was the meeting that Tony Mavromatis was at as well, where there seems to be a lot of misinformation from factory managers about what is the problem with the deed, and we were talking about that with Roger Scott and John Newman, and we sort of said - I remember saying, why can't we have a meeting with all the factory managers, some stewards from each plant and, say Michael Karakatsanis to try to at least understand what are their problems about a deed and what some of this misinformation, or whatever. And it was the company at that meeting, I think it was John Newman that said, well, if we organised a meeting with, you know, with part of Nestle, would that stop anything happening on 28 June? And we sort of said at that, I remember saying at that, that no, that wouldn't be the case. Whatever - that wouldn't make it any different, whether people do something on the 28th or not, you know, would not be changed by having a meeting of Nestle managers at the various plants to talk about the deed.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN279
Ms Halfpenny, what was the purpose of the meeting on the 19th?---The?
PN280
The meeting of the employees at Campbellfield?---Well, the company had put up their proposal on what they wanted people to do on 28 June, and they wanted the union, or they wanted to give us paid union meetings to meet with the workers to decide on that. And it was all going sort of very quickly, because I guess our view was, well, we never miss an opportunity to have a paid union meeting for communication purposes with the members, and so we said yes. And that's why at one meeting - I actually only conducted two, not three, because I had something else that I couldn't change, and that's where another organiser did that meeting.
PN281
And it wasn't a stop work meeting?---Well, it was a stop work meeting.
PN282
The employees were paid to attend?---Yes.
PN283
It was an authorised meeting by the employers?---Yes.
PN284
For you to put their proposal to the employees at Campbellfield?---Yes.
PN285
It wasn't an AMWU meeting?---Well, not organised by us, but it was a meeting of AMWU members.
PN286
And the purpose of the meeting was to put the company's proposal?---Yes.
PN287
And that was all that was put?---Yes.
PN288
And did any - - -?---And we told the company that that was the - what I understood was the agreement to do.
PN289
So you didn't understand the company had given you permission to use that meeting to organise industrial action?---No.
PN290
And so you limited that meeting to what you'd agreed the company was wanting you to do at that meeting?---Yes.
PN291
And, Ms Halfpenny, have you organised mass meetings for today or tomorrow?
---No.
PN292
And you are attending site today?---Yes, just because of what's - when we're here this morning. So on Friday I just asked the office to send through a notification to say that there would be union officials attending the plant over each shift during the breaks so we can let people know what's coming out of here, just in case the company prevented us from getting into the plant.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN293
So is that going to be a mass meeting of members?---No, because it's continuous running, so everyone has staggered breaks, so the idea would be to be there and then just sort of see people as they're having their lunch or tea or whatever.
PN294
No further questions.
PN295
THE COMMISSIONER: I've got a couple of questions. Has there been some change in your organisation's proposal? Because both Mr Scott and Mr Newman have said that at that meeting on 22 June you indicated that there would be mass meetings with employees out of hours on either Monday or Tuesday, that is the 26th and 27th?---Yes.
PN296
They say that that's what you said on Friday, 22 June, which wasn't a Friday?---It was the Thursday.
PN297
Thursday. I can be more precise. Thursday, yes. You've now given evidence I think, and I want to be clear about it, that's why I'm asking the question, that there are no proposals to hold mass meetings either today or tomorrow?---We haven't made any plans and - - -
PN298
Well, sorry. Are you denying that there were plans to hold them?---Well, we still haven't made - we still haven't go - what I said - - -
PN299
No. You said - look, their evidence is that you told them - now, you can deny this evidence if you like - but both of them have said that you intended to hold mass meetings out of hours on either Monday or Tuesday?---I said if we're going to have meetings, like, there's only Monday, Tuesday until the Wednesday, which is the 28th, which is the protest rally. And then when they say I've said, and you will know by tomorrow, what I said was, if we're going to have meetings we're going to have to plan and then we're going to have to put times on and you would know by tomorrow if we're going to have those meetings. That was the context of the conversation.
PN300
Because that's not what they say?---That's right.
PN301
So I'm putting it to you as squarely as I can - unfortunately the others haven't - Mr Scott says, Bronwyn Halfpenny said to me that she was planning to have mass meetings with the employees out of hours on either Monday, 26 June or Tuesday, 27 June. You deny that that was said?---I do. What I said was that we're going to have meetings, they will have to be held before Wednesday, which is Monday or Tuesday. Because they're saying to me, what's going on, what's the workers deciding?
**** BRONWYN HALFPENNY XXN MR BOURKE
PN302
I understand what you say. I just want to put what - because both Mr Scott and Mr Newman have put words, and I want to put them to you. At paragraph 23 of Mr Newman's statement he says:
PN303
Ms Halfpenny said that this proposal, that is the minimisation proposal, had already been considered and rejected by the majority of members at the mass meetings and that further mass meetings would be held outside hours probably on Monday or Tuesday the following week.
PN304
He goes on to say:
PN305
I was surprised that you'd indicated an intention to call a further mass meeting on the issue of 28 June work stoppage, so I asked Ms Halfpenny to confirm and clarify what she had just told me, that mass meetings would be held outside the Campbellfield factory gates on Monday and Tuesday. Ms Halfpenny did not respond. She neither corrected nor denied my assertion.
PN306
Now, they're putting - their evidence is quite blunt and straightforward. There's no question of it being conditional. It is that you had proposed meetings for Monday and Tuesday outside the gates?---And that's not right.
PN307
And what do you say you said? And I'm looking for the words that you used, not what the words you would have used, but your recollection of what you actually said?---What I think I said was - it was an answer to their question, we need to know for operational purposes for planning what's going to happen on the 28th. And myself and the stewards were saying, well, that is for members to decide, they have to make a decision what they're going to do on the 28th, and there's all this thing about do we talk to them or not, do they just do what we say blindly, and all that debate. And so they continually asked what is going to happen and, you know, we need to know for planning purposes. And the end answer was, well, it's Thursday today, so if we're going to have meetings they would be early next week, Monday or Tuesday. There was no - because they hadn't been planned, they hadn't been arranged, so that was really the only response. And that's when this reference to the Philippines and the 127 orders then came in.
PN308
So is it a correct assumption that if there is no mass meetings either today or tomorrow then there would be no industrial action on Wednesday?---I can't - - -
PN309
Well, you just told me at some length that it would be the members that decide?
---Yes.
**** BRONWYN HALFPENNY XXN MR BOURKE
PN310
And the members decide other than a meeting to take industrial action?---Well, I guess I don't know.
PN311
In the context of going up till Wednesday. And you've just said you've got no plans to hold mass meetings. So how would they make a decision, if they were to make a decision to go on strike, how would they make that decision?---That's true.
PN312
So that if there was no mass meeting today or tomorrow there would be no industrial action on Wednesday?---Probably not. I haven't thought that through.
PN313
Okay. And you say there are no plans to hold mass meetings either today or tomorrow?---That's right.
PN314
Okay. Now, I've reserved people's rights on that. I've sort of asked the questions out of turn. I should have done it at the end of Mr Bourke's.
MR BOURKE: Thank you.
<FURTHER CROSS-EXAMINATION BY MR BOURKE [9.32AM]
PN316
MR BOURKE: You are going to organise meetings either today or tomorrow aren't you?---I don't know.
PN317
Can I just go back a step. 30 June 2005, first protest rally, mass meetings were organised at Campbellfield that you attended, correct?---Yes.
PN318
And you conducted the meetings?---Yes.
PN319
15 November 2005, mass meetings were organised at Campbellfield that you conducted before the rally occurred?---Yes.
PN320
30 June 2006, Work Choices is still as big an issue for your union isn't it?---Yes.
PN321
Yes. And you would be failing your members if you didn't organise a mass meeting to make a decision about 30 June 2006 - - -
PN322
THE COMMISSIONER: 28 June.
PN323
MR BOURKE: Sorry, 28 June 2006, prior to the Wednesday wouldn't you?---I haven't really thought about it because we're here and we've got this, and in terms of what happens next hasn't really been organised or any plans made.
**** BRONWYN HALFPENNY FXXN MR BOURKE
PN324
You've been in the game enough where you can juggle more than one ball at one time can't you?---You normally - something - this happens, and then you sort of sit down and think about what to do. I really haven't thought about what - - -
PN325
I suggest to you the only reason you would not call a meeting prior to the Wednesday is if a decision has already been made and you already know what's going to happen on the Wednesday. That's the only basis you would not call a mass meeting prior to the Wednesday isn't it?---No.
PN326
I see. And the truth of the matter is you did tell Mr Scott and Mr Newman there were going to be meetings on the Monday or Tuesday didn't you?---I didn't say it like that.
PN327
I see. And in fact Mr Scott made it clear at that meeting that if you're going to have further meetings it's not going to be on company time. That was raised wasn't it?---Yes. And that's where the Philippines 127 discussion came into it, about meetings on company time.
PN328
You're really just playing games with the whole thing aren't you, in suggesting there's not going to be union meetings, you haven't thought about it, you've been too busy with today's case?---Well, it hasn't - - -
PN329
You're just playing games aren't you?---Well, there hasn't been any plans about what we do next.
PN330
I see.
THE COMMISSIONER: Yes, thanks, Ms Halfpenny. You're free to go. You can remain if you wish.
PN332
THE COMMISSIONER: Yes, Mr Bourke?
PN333
MR BOURKE: If I can move to - - -
PN334
THE COMMISSIONER: I'm sorry, I presumed that was - - -
PN335
MR BOURKE: Yes, I understand the AMWU case is closed. If I can move to submissions. It appears the only issue under 496 is whether industrial action is threatened, impending or probable. It appears no debate that any industrial action would be unprotected. There's no debate that we're talking about federal system employees and a federal system employer. We say that the evidence is that industrial action is threatened, impending or probable. And the evidence - before I go into detail, just in terms of threatening, you can work back from the fact that our minimisation proposal at Pakenham was rejected.
PN336
THE COMMISSIONER: Campbellfield.
PN337
MR BOURKE: Sorry, Campbellfield. The idea that we are saying two shifts can attend the rally, one shift we need two thirds of the staff to attend to keep the production lines open, and absolutely rejected, it wouldn't even be an issue. They'd be coming back to us saying, don't worry about it, we're all going to turn up to work. The fact that that is rejected reflects that in itself is an act where they're threatening industrial action, a clear sign of impending industrial action. The psychological final decision may not have been made, but it is threatened, it's impending.
PN338
You then go to the word probable. Before you even examine the details you have to say industrial action is probable. You've had just in Campbellfield site, this is the third protest rally, so there is a history. The first protest rally 100 per cent people go out. Second protest rally 100 per cent of people go out. The probability - and all we have to show is that employees, not every single one, but some employees will go out. The probability that in the current atmosphere where the protest is still supported by the AMWU, the best we can have from Ms Halfpenny was sometimes the work force surprised me, there is no reason suddenly the work force has gone all soft because the legislation is now in place, when Ms Halfpenny routed off all the other problems with the legislation examples, but we're not going to have the same outcome, 100 per cent of the work force go out at the site.
PN339
On its own that is enough. But if you look at the detail going back to 30 June 2005, the same things have happened. We've had AMWU support for the strike, which has not been challenged, pamphlets at Campbellfield, we've had across the board people going out, and three days before we've had the mass meeting with Ms Halfpenny attending, and if she - - -
PN340
THE COMMISSIONER: Sorry, you say pamphlets at Campbellfield. That's not my understanding from the evidence.
PN341
MR BOURKE: 30 June 2005 there was.
PN342
THE COMMISSIONER: Yes. I thought you meant pamphlets on this occasion.
PN343
MR BOURKE: As I indicated on Friday, sir, there was a statement of Mr Karakatsanis' saying he believed there was pamphlets at Campbellfield, but in fact we then tendered - I flagged that in opening that would be corrected, and we tendered the AMWU Northern News.
PN344
THE COMMISSIONER: But there's nothing - that's been tendered, that it was there. But it seems to me that that pamphlet, if it was issued, was issued sometime ago, because it talks about upcoming events on the last page and refers to matters that occurred on 1 May.
PN345
MR BOURKE: I think the evidence is from Mr Scott that it was a photograph of this was taken on the Friday.
PN346
THE COMMISSIONER: It might have been there, but it's been there for at least arguably - the evidence doesn't take - on it's face this document is old.
PN347
MR BOURKE: It might be old.
PN348
THE COMMISSIONER: Yes, okay.
PN349
MR BOURKE: But it still refers to the protest rally on 28 June.
PN350
THE COMMISSIONER: Yes. But it's not of the same order as the other ones that have been referred to, which weren't at Campbellfield.
PN351
MR BOURKE: And we have Ms Halfpenny effectively accept that she encouraged the work force to attend that rally on 30 June 2005,
and that is in fact what occurred. We then have the second rally on 15 November 2005, again there is similar lead up in terms of
pamphlets. You have a mass meeting on
3 November. Ms Halfpenny says she only supported Nestle's position of the four hour stoppage, but even on that level there is a
support for a stoppage to attend the rally. But the reflection of the work force is, you know, to strengthen the attitude - and
this is the most recent rally - 100 per cent across the board went out at Campbellfield.
PN352
And then 28 June, they've pointed to nothing to indicate there is any change in circumstance. The only thing is that the legislation is in place, that is the reflection of the feeling, the proposal of Nestle of Campbellfield has been rejected, and we really have no reason to expect that there'd be anything different on 28 June. And reflecting that - - -
PN353
THE COMMISSIONER: As I understood Ms Halfpenny's evidence, and I accept that there was some equivocation about what was going to happen in the future, and I understand what you're saying about the, you know, we've had two examples in the past and the expectation of a third. But as I understood it, her evidence about the rejection of the company's proposal was rejected because it meant that some people would be paid and some wouldn't, and that's why it was rejected. And in fact the rejection, it doesn't follow that the rejection of that means that there will or won't be action on the Wednesday.
PN354
MR BOURKE: Well, that - - -
PN355
THE COMMISSIONER: I understand that you're arguing the opposite. But I just want to say that my experience of people who work around the shifts is that that situation is pretty general of shift workers, that if there's going to be industrial action it will be, even though the industrial action may be related to something that happens on one of the shifts, if people are going to lose money, everyone has got to lose money. And so at least on one level - I mean, this doesn't detract from the other evidence, but it seems to me that your argument that because they rejected the company's proposal, I don't think it follows automatically that therefore there's a probability that they will walk on Wednesday.
PN356
MR BOURKE: No, it doesn't follow automatically. But at the very least if the idea of going out on the 28th wasn't on the radar, there wouldn't be a lot to talk about.
PN357
THE COMMISSIONER: Look, on the radar, I'm prepared to go that far.
PN358
MR BOURKE: So that it was clearly on the radar. And then you've got the past two rallies.
PN359
THE COMMISSIONER: Look, I'm not detracting. All I'm saying is I don't know that it's open to me to draw the inference that I understood you were asking me to draw, that is, that the simple rejection of the company's proposal meant that there was a likelihood, probability even that people would take action on the Wednesday.
PN360
MR BOURKE: Yes. I think we coloured with the other evidence.
PN361
THE COMMISSIONER: Yes, sure.
PN362
MR BOURKE: But we point to a number of other things. And we say reflecting Ms Halfpenny does have a feel for the pulse of the work force. She knows the high probability is everyone is going to go out. And in re-examination it was suggested, oh, she couldn't have put the strike action proposal because that would have been a breach. But at the very least she could have sought from the meeting a counter proposal. Now, that was not done, and there was some evidence given by her that she thought this was some type of ultimatum with no room to move.
PN363
If you read the letter of 15 June there's no suggestion that this is our final position or whatever. Come back to us. But we say
that the deliberate decision not to countenance a counter offer, and we say that reflects the position, the AMWUs preferred position
that is, in fact, that everyone would go out at Campbellfield. And we have the evidence from Ms Halfpenny that an issue has been
used that has been worked in with the mobilisation of the rally, the people for the rally on
28 June, and that is the deed. It's clearly a sensitive issue where they have said Work Choices is disentitling people's rights,
industrial rights, the deed is the answer, and she has said they have made it known to members at these members that Nestle have
not come to the party in terms of an answer, and that is to sign off on one of these AMWU deeds.
PN364
So if there was any ingredient that it's made the industrial action in fact more probable at Campbellfield, it is this extra ingredient of the deed. Ms Halfpenny points to the fact that the legislation is already in place. But that issue has become even more focused by the fact that they are saying you have not signed the deed. That strengthens the probability that nothing will change as per the last two occasions. With respect, we say that there was really nothing stopping her, she knew the company were desperate to know what the situation is, to find out the work force's final position, and she effectively admitted her strategy is not to do that but to hold off to the last minute.
PN365
And then we have these critical meetings on 19 June. If one goes to the - summarised in the chronology at page 4, they start with the two AMWU delegates knowing what's going on an telling us that they're holding the vote off because they don't want legal action. Why go into this elaborate strategy unless you think at the end of that vote there is a very high probability there is going to be industrial action? You're taking a defensive strategy. You're already building in place your plan because you know this is the probability, there's going to be industrial action as there was before, and you've put in a strategy of not putting the vote until the very last minute.
PN366
And if Ms Halfpenny is to be believed, there's no meetings planned, entirely improbable. What we're hearing, Commissioner, is a kind of compartmentalisation of her own mind. She knows she's going to call meetings. She knows she doesn't want to disclose her hand, so she psychologically tells herself, I haven't planned any meetings. But at the very last minute she knows she's duty bound to hold these mass meetings, unless the decision is already plain as day and already effectively been made.
PN367
And the delegates are saying this is the strategy at 9 am. And then we have at 2.30 pm the conversation, we have to protect ourselves. Again Ms Halfpenny, not only the delegates, effectively disclosing this is our strategy, and that should be the reason at 19 June there was no formal proposal put, not for some nicety about breaching the arrangement for those meetings. And then you have Mr Mavromatis was here on Friday, when we were talking about 28 June, and he starts saying, look, why not just sign the AMWU deed? And as Ms Halfpenny said, the issues are linked. And it was effectively a message, this will go away.
PN368
And then you have 22 June, 2.50 pm, another meeting and Ms Halfpenny talking about the previous 127 order. She's already flagging her thinking. There's a very thought through strategy. Ms Halfpenny has suggested, I can only think of one thing at one time, I'm completely bamboozled, I can't think of anything while this case is going on. She's got a whole game plan from beginning to end. And we say it's totally unbelievable that she didn't say, if we had just got the deed resolved we would not be having these discussions.
PN369
She has said to the members they're linked issues, and she knows the reality picture is that minimisation proposal would have got up with AMWU support if Nestle signed off on the dotted line. We have Monday or Tuesday, you will find out tomorrow. She's holding back her cards till the last minute. We can't tell you that, we have to protect ourselves in terms of the details of the meeting. Psychologically she tells herself, I haven't formally worked out how I'm going to do everything.
PN370
And we'll just have to test it. There was a history in relation to previous rallies where she attended, personally conducted the meetings, and she's seriously saying I haven't planned for this particular rally. And there is no reason, when the AMWUs position is just as strong in terms of the legislation. It's totally improbable there's not a plan in place to see this through, that she's just going to leave the thing up in the air for people to, well, you know, on the 23rd, well, what do we do? As I said, either the decision has already been made or it will be made at a later time.
PN371
We say that equals that the industrial action is probable, impending or threatened, and given the pivotal role of the union we seek an order against the employees and the union and, as I foreshadowed on Friday, we really need a letter from Ms Halfpenny saying there is to be no industrial action. That's not to say people can't attend the rally, but there's to be no industrial action, to break what is in fact the atmosphere that's already been set up. If the Commission pleases.
PN372
THE COMMISSIONER: Yes, so the order you seek - I'm not quite sure. The order is of very limited duration I understand. Service can be effected - see, you're looking for a letter which you can do what you like with, but as far as the order is concerned, you're going to be satisfied just to put it on the front gates and on the noticeboard. I just find that rather curious. It sounds to me like you're wanting to make a political statement or something.
PN373
MR BOURKE: No, it's not - - -
PN374
THE COMMISSIONER: Okay, well let's have a look 4.2. They've got to provide this letter and 4.3, Nestle can do what they like with that but they shall certainly
PN375
put a copy on the noticeboard at Campbellfield and otherwise take any steps to inform the persons referred to in paragraph 2(b) and (c) of such notice and it's content
PN376
The persons in 2(b) and (c) are the officials, organisers and delegates of the AMWU and each employee. Yet as far as the order itself is concerned, service is going to be effected by Nestle putting it on the front gates and a copy on the noticeboard.
PN377
MR BOURKE: No, that's a copy of the order, not the letter.
PN378
THE COMMISSIONER: I know, that's what I'm saying. You want to do more with the letter than you do with the order. That's why I'm raising this issue of political games. It's very clear that Nestle want to be at liberty to place a copy of that letter in the hands of each employee, because that's what they're going to do. But they don't want to be required to do the same thing with the order, that it is sufficient service, sufficient that it be put on the gate and put on a noticeboard.
PN379
MR BOURKE: Commissioner, would could have 4.3 amended.
PN380
THE COMMISSIONER: I think at the very least they should be - anyhow, that's something for Ms Gooley to talk about. I just don't understand why it is that a letter from Halfpenny somehow takes on greater importance than a signed order of this Commission in the eyes of those who are instructing, Mr Bourke.
PN381
MR BOURKE: It's just my sloppy drafting, if I can say. There's no magic
and - - -
PN382
THE COMMISSIONER: It doesn't say it's you drafting it, it says Mallesons. It's those instructing you, so they take the blame for what you're not up for.
PN383
MR BOURKE: I'm comfortable, Commissioner, to just place a copy on the noticeboard.
PN384
THE COMMISSIONER: That's assuming that I grant the order of course.
PN385
MR BOURKE: Yes, and delete from "and to otherwise take steps to inform persons referred to".
PN386
THE COMMISSIONER: This order would leave it open, if that order was issued, for the proposal that Nestle put forward to still go ahead, because item 3.1(d) seems to me to allow that.
PN387
MR BOURKE: Yes.
PN388
THE COMMISSIONER: If the order were issued, is that what would happen?
PN389
MR BOURKE: Excuse me?
PN390
THE COMMISSIONER: Whether the people would take that up is another matter, but - - -
PN391
MR BOURKE: That proposal will be left on the table even if an order is issued.
PN392
THE COMMISSIONER: Yes, whether individuals would take it up if the order was issued is another matter.
PN393
MR BOURKE: That will require, as I said, I think there's 93 or - - -
PN394
THE COMMISSIONER: Yes, I understand.
PN395
MR BOURKE: They needn't be particular people that do particular jobs.
PN396
THE COMMISSIONER: But people would be at liberty to apply for, effectively leave without pay to attend the rally.
PN397
MR BOURKE: Yes.
PN398
THE COMMISSIONER: Okay, I understand all that. Yes, Ms Gooley.
PN399
MS GOOLEY: Thank you. Commissioner before we address the question of whether there's any evidence to support a finding that in fact any industrial action is occurring, I want to first look at the jurisdictional question.
PN400
THE COMMISSIONER: Can I just say, I'm satisfied there's none occurring.
PN401
MS GOOLEY: Sorry, yes.
PN402
THE COMMISSIONER: I'd have to say that the threatening and impending evidence is less strong than probable, but yes.
PN403
MS GOOLEY: The reason I want to take you to this Commissioner, is of course we've had a substantial change in the Act since most of the decisions relating to political activity has in fact occurred. You'd be familiar that the previous decisions of this Commission, that participation in political protests was caught by section 127 of the Act. The reason I want to take you, importantly to the provisions in the Act is because the definition of industrial action within the Act has changed. There's a particular note in the definition of industrial action, which raises squarely the question that was considered in The Age v The AMWU, as to whether any - all action by employees to not attend for work is in fact industrial action. So I think the first and important thing to take you to, your Honour, is in fact the definition of industrial action, which is found at 420 of the amended Act. A number of things are clearly changed about the definition of industrial action within the meaning of the Act. We have the inclusion in, I think it's each of the paragraphs, the words "by an employee" to deal with the issue of whether industrial action can in fact be taken by employer. The Act has now been limited industrial action by employers simply to lock out. But you'll see at note 2 of the definition that the Act now says that,
PN404
The issue of whether action that is not industrial in character is industrial action was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited , PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.
PN405
I want to take you to the decision in the Age case and in particular starting at paragraph - you'll recall that that decision involved a decision by The Age to terminate for reasons of redundancy, their employees at the Spencer Street print centre, contrary to their obligations under their enterprise agreement. Commissioner Wheelan had initially granted a section 127 order, that industrial stop and then the Full Bench of the Commission, at which the Commonwealth intervened, had to consider whether that was in fact industrial action. From paragraph 39 down of the decision, which is on page 8, we see that The Age made submissions that what is necessary for industrial action to occur, it must be - the action concerned is engaged in to support a demand and went on to submit to the Commission that unless it was engaged in for the purposes of supporting a relevant claim or demand, it could not be industrial action. In that context, there was no demand by the employer that any demand was placed on the employees. At the top of page 12, we see that the Commonwealth in fact, in supporting The Age's submission went a little further than The Age - sorry page 9 and 12.
PN406
THE COMMISSIONER: Paragraph - - -
PN407
MS GOOLEY: Paragraph 39 at the top of the page, that it contended that the action must be industrial in character. They went on to say that action by an employer that's driven by normal business considerations could not be industrial action. At paragraph 42, the Full Bench says,
PN408
There is much to be said for the approach advanced by The Age and the Commonwealth. A requirement imposed by an employer on its employees that they not attend for work during a period when no useful work is available for them, assuming such a requirement to be lawful, bears a different character to a requirement that employees not attend for work pending their agreement to changed conditions of employment.
PN409
It then goes on at paragraph 44 and says,
PN410
Just as employer conduct is capable of different characterisations depending upon the context, so also is employee conduct. An employee who does not attend for work on account of illness may not be engaging in industrial action, while an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment clearly is so engaged. In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees.
PN411
Now, the union's actually then said to the Bench, well if that's the proper approach, then all these 127 orders about political action would not have been valid. The Full Bench of course decides that it doesn't need to decide that question, but it does say
PN412
It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree.
PN413
They don't need to decide the question about whether political protest is within that definition for the purposes of this case. But we say they certainly in that case, having considered the union's arguments about the political stoppages at paragraph 45, goes on to say that
PN414
conduct which stands completely outside the area of disputation and bargaining is unlikely to be considered industrial action.
PN415
If you look at what is being organised on the 28th and you look at the material that is being put before you, nowhere in any of the material put out by the unions, are employees called on to stop work. They are simply called on to participate in a political rally and there is one demand that is being made in relation to that rally. I'll take you to that demand, although there's no evidence of course that that was ever put before the workers at Campbellfield.
PN416
THE COMMISSIONER: Let's just assume for the moment you're right about all of that and it's the rally we're talking about, why would people on night shift and afternoon shift not attend for work, if it was not industrial action? I mean, let's assume you're right that attendance at the rally does not amount to industrial action just for the moment. To that extent, you know, people attending the rally would not be participating in industrial action. People who were not at work who didn't attend the rally or people who were just not at work at the time when the really wasn't even on, how could their conduct be described other than as industrial action? It's a bit hard to say it's illness, it's been done in a collective way, it's been done to put pressure on the company, I don’t know. It just doesn't fit into the description you're currently giving me.
PN417
MS GOOLEY: Well, we say that there's no evidence this has been done to put any pressure on the company.
PN418
THE COMMISSIONER: People are just not attending for work. So you're saying it would not constitute industrial action if people decided not to attend for work, regardless of the reason why they didn't attend for work.
PN419
MS GOOLEY: Well, you would need evidence of why they didn't attend for work. It may be, for example, that somebody on night shift decides not to attend for work because of the recognition that they need a certain amount of sleep and they can't both attend for work and attend the rally.
PN420
THE COMMISSIONER: There would need to be evidence about that on your side. At the moment - - -
PN421
MS GOOLEY: No, in terms of - - -
PN422
THE COMMISSIONER: Don’t no, no me - - -
PN423
MS GOOLEY: Sorry, Commissioner. The obligation is on the applicant to establish that industrial action is likely to happen.
PN424
THE COMMISSIONER: Yes, but I'm hearing an argument from you that the Act - there's a lot of logical jumps here and I want to be careful not to make them. Let's assume for the moment that attendance at the rally and absence from work because of the attendance at the rally does not constitute industrial action. That's your argument I think.
PN425
MS GOOLEY: That's right.
PN426
THE COMMISSIONER: Except that you want to take it wider than that and say that, absent any evidence that this why people are not at work, it can't be industrial action either.
PN427
MS GOOLEY: I don't know why their not - one, I don't know whether they are going to - - -
PN428
THE COMMISSIONER: Okay, let's assume for the moment that I come to a view - let's take this one step at a time. I come to a view that it is probable that employees of Nestle at Campbellfield are not going to attend for work when rostered on the relevant part of the shift on 28 July. In other words, some people are due to start work 27 July but they're not going to come on 27 July because the bulk of their shift is on the 28th and some people are not going to come to work because - you know, people are not going to come to work on the 29th because the bulk of their shift is on the 28th. That may not be the case because it's night shift that runs - it's only the people who are not going to attend for work on the 27th. I come to a view that it's probable that employees, members of the AMWU at Nestle at Campbellfield are not going to attend for work on that day and a little bit of the 27th. Now, I come to that view. That then raises the issue that you are raising right now, does that constitute industrial action. Now, a respectable view can be put forward, I'm not saying I accept it, that attendance at the rally does not fall into the description of industrial action. But why is it that the failure to attend for work at other times doesn't fall into the description of industrial action?
PN429
MS GOOLEY: It too would need to have an industrial character. As I say, not all non-attendance for work is industrial action, even itself would have to have an industrial character. Again, what is the demand that they're putting on their employer?
PN430
THE COMMISSIONER: We don't know what the demand is. There's no demand, we've just got people walking out for reasons that - well, there is potentially a demand.
PN431
MS GOOLEY: There may be a political reason.
PN432
THE COMMISSIONER: No, I can't imagine what the political reason is that someone doesn't attend the night shift.
PN433
MS GOOLEY: To enable them to attend the rally in the day.
PN434
THE COMMISSIONER: If they attend the rally. That would be interesting order that said that those people that don't attend the rally
- look, I can't for the life of me understand why it is that a four hour rally requires an eight hour absence. I can't accept for
a moment that all of those on night shift and all of those on afternoon shift will be asleep during that time. You know, it just
doesn’t make any sense to me at all. But anyhow, that seems to me to be one of the difficulties with the argument you're putting,
that's all I'm saying. There is that debate in The Age case about political action, but you see, in this case as I understand
Mr Bourke's submission, there is a demand associated with the action. That's a demand that the company - I haven't made a finding
on this, but there is a demand that the company sign a deed and there wouldn't be this problem.
PN435
MS GOOLEY: We say Ms Halfpenny's evidence is unequivocal about that. The issue about what happened on the 28th will still be there, deed or not.
PN436
THE COMMISSIONER: Just because someone gives unequivocal evidence, doesn't mean it's accepted.
PN437
MS GOOLEY: No, but what I'm saying is, that is the evidence that we're relying on. As she said in her evidence, there are companies that have signed the deed where employees have decided that they're going to attend the rally.
PN438
THE COMMISSIONER: But see, the other side of the coin is this, that - and I can't escape the realities of this world. People are being told that this Work Choices affects you because the company hasn't signed the deed and therefore it's in your interest to do something about it.
PN439
MS GOOLEY: I don't think that's what the evidence is.
PN440
THE COMMISSIONER: I think that's what the submission is.
PN441
MS GOOLEY: Yes, but it's not the evidence.
PN442
THE COMMISSIONER: Well, whether the evidence supports that or not is another question.
PN443
MS GOOLEY: That's the submissions, but it's not the evidence.
PN444
THE COMMISSIONER: Well, that's a question going back to the transcript. We might have to do that because I'm not sure that it isn't the evidence, but we do have a situation where the evidence is that Mr Mavromatis has said things, Ms Halfpenny has said things, people have given evidence about that. Ms Halfpenny denies that it was in that context and I've got to accept it. Now, the reality is that if I accept the other people's evidence of that, then we have got a demand, haven't we?
PN445
MS GOOLEY: If you do and we say you should not accept that evidence.
PN446
THE COMMISSIONER: You'll tell me all about that in a minute, but I'm just making the point that it's not as straightforward as your submission was leading to.
PN447
MS GOOLEY: Well, what I was doing was - - -
PN448
THE COMMISSIONER: All right, I've interrupted you and I'll let you press on.
PN449
MS GOOLEY: Starting the - because it wasn't a matter that was addressed by my friend and he seemed to simply make the presumption that if these employees don't attend for work on Wednesday, it is industrial action, or what is being talked about in terms of the protest rally is industrial action, and we say it's not, it's political action and as I was going to say, even if you look at the material which, as I say, isn't before the Campbellfield workers, but is relied on in this proceeding - - -
PN450
THE COMMISSIONER: It doesn't call on anyone to stop work.
PN451
MS GOOLEY: It doesn't call on anybody to stop work and the demand which you'll see behind A at tab 4, it's the second last page - well, it's the last page before MK4.
PN452
THE COMMISSIONER: Sorry, the last page?
PN453
MS GOOLEY: Before tab B under tab 4 you'll find MK4, which is the letter and the table before that is in fact attached to poster and if you read through all of this material there is nothing in any of it that says to workers, "Stop work", to stop the laws. The demand is made at the bottom of the third column, which is, "We demand fair and just workplace laws." That's the demand that is being made out of the rally, a demand for fair and just workplace laws. There's no demand in any of this material that the employers do anything. It's a demand on the government. It has all the elements of a political campaign aimed fairly and squarely at the Liberal government who has brought in these laws, often again without the support of some employers as well.
PN454
So we say that the action that's being organised by the unions on the 28th is not industrial in character. The employers are in fact powerless to do anything about those demands by the union. Signing the deed won't result in the creation fair and just industrial laws. Now, the employers in this case want to suggest that the demand for a deed is in some way linked to the rally, that that's the demand that has been made at Campbellfield and we say that that is in fact just a red herring. There's no suggestion that at Campbellfield the deed is any more significant than any of the other sites where whatever is occurring is occurring with the authorisation of the employer.
PN455
We're told by the company that the union is seeking a deed and Ms Halfpenny doesn't resile from the fact that the union is seeking a deed and her evidence is that on every occasion they meet with the company they will discuss the deed. But Ms Halfpenny gave evidence, clear evidence, that the signing of the deed would have made no difference to what occurs on 28 June. And so we say that the deed has no connection with the National Day of Protest and that is not sufficient to bring the activity that's occurring on 28 June within the fervour of having a sufficiently industrial character to be industrial action.
PN456
Now, this notion of what has got a sufficient industrial character, can I just show you a press release put out by - - -
PN457
THE COMMISSIONER: Sorry, before you get on to that, I just want to deal with the evidence about that. I just want to be very clear that - - -
PN458
MS GOOLEY: We have Mr Newman's evidence.
PN459
THE COMMISSIONER: We've got Mr Mavromatis.
PN460
MS GOOLEY: Yes.
PN461
THE COMMISSIONER: At paragraph 25 of Mr Scott's in the context of - - -
PN462
MS GOOLEY: And he says he'd advised Nestle to sign the deed.
PN463
THE COMMISSIONER: Yes. Now, it's open to draw the inference from that - - -
PN464
MS GOOLEY: And then we have on paragraph 31, which Ms Halfpenny has denied, and he's gone further - - -
PN465
THE COMMISSIONER: I understand she's denied it.
PN466
MS GOOLEY: And gone further than denied it. She's given evidence that at other sites where a deed has been signed, people will be participating in the National Day of Protest.
PN467
THE COMMISSIONER: That's right.
PN468
MS GOOLEY: That's at paragraph 31 of - - -
PN469
THE COMMISSIONER: No, I've got that.
PN470
MS GOOLEY: And there's no other evidence, despite the fact that Ms Halfpenny - - -
PN471
THE COMMISSIONER: Just bear with me.
PN472
MS GOOLEY: Sorry.
PN473
THE COMMISSIONER: Now, it's pretty clear that Mr Newman was present at the same discussion that Mr Scott's referring to at paragraph 31.
PN474
MS GOOLEY: And he makes no mention - - -
PN475
THE COMMISSIONER: And the issue of the deed just doesn't get - there's no - - -
PN476
MS GOOLEY: No, it doesn't get a mention in that one and it doesn't get a mention in Mr Karakatsanis' evidence.
PN477
THE COMMISSIONER: Well, that would be second hand at the best of it. There was a lock on it and this is all - - -
PN478
MS GOOLEY: Despite the fact that Ms Halfpenny's evidence is that they raise the deed at every meeting they have with - - -
PN479
THE COMMISSIONER: Sorry?
PN480
MS GOOLEY: Ms Halfpenny's evidence is that the deed is the subject of discussion at every meeting they have with the employer for whatever reason.
PN481
THE COMMISSIONER: Yes.
PN482
MS GOOLEY: So the situation you have before you is you have Mr - - -
PN483
THE COMMISSIONER: I'm sorry, I'm just trying to see if there's any suggestion in Mr Karakatsanis' - that he actually had any discussions with anybody from the union. It doesn't look like he did.
PN484
MS GOOLEY: No. I didn't find any, Commissioner. The only references I found were in Mr Scott's evidence and Ms Halfpenny - in terms of the evidence before you, you have his evidence and you have Ms Halfpenny's evidence, about Ms Halfpenny's evidence that she didn't say it and that having the deed was irrelevant to the National Day of Protest.
PN485
THE COMMISSIONER: Yes.
PN486
MS GOOLEY: And we haven't had - I wasn't able to find any decision of the Commission where consideration had been given to this issue of industrial character in terms of employees stopping work, but we have had a decision of the Building Industry Commission.
PN487
THE COMMISSIONER: Just bear with me for a minute. Yes, thanks.
PN488
MS GOOLEY: Thank you. This was as much as what had occurred obviously since the Work Choices legislation came into fruition, was a very public issue about a group of workers having their pay docked for four hours as a result of a work stoppage at which they collected money for the family of a deceased worker and the employees had their pay docked for four hours. The employer said, "We didn't have any choice, it was industrial action," and there was an investigation by the Office of the Australian Building and Construction Commissioner.
PN489
The definitions of industrial action in the two Acts are very similar. A significant difference between the two Acts, though, is that action that's authorised by an employer under the Building Industry Improvement Act requires authorisation to be done in advance and in writing, but when the Building Industry Commission investigated this matter they concluded, and it's at paragraph 3, that the workers had not engaged in unlawful industrial action as their participation in the stoppage was not industrially motivated.
PN490
We say the participation, if there is to be any, in the activities of the 28th are equally not industrially motivated. They are politically motivated. They are aimed by both the unions and the employees, if they participate in it, directly aimed at the Federal government and not at their employer.
PN491
THE COMMISSIONER: Sorry, how is the fact that people on afternoon shift and night shift and people on day shift for more than four hours, how is their action politically motivated?
PN492
MS GOOLEY: Well, the people who are on night - - -
PN493
THE COMMISSIONER: Attendance at the rally is the political action, isn't it?
PN494
MS GOOLEY: And participating in the protest, yes.
PN495
THE COMMISSIONER: Yes, attendance at the rally and participating in the protest. Well, how does it flow from that that outside the hours of the protest and reasonable times to get to and from it, people are in any way involving themselves in a political protest?
PN496
MS GOOLEY: All I can say, and as you pointed out, I don't have any witnesses here to give evidence in relation to this, because we don't actually know what they're intending doing, is to suggest - - -
PN497
THE COMMISSIONER: Look, I make the point in the context of the matter that you just brought to my attention. There, there was a finding, a positive finding, that the people were not industrially motivated.
PN498
MS GOOLEY: So these people don't attend for work on the 28th, for outside the period of rally, so that they can participate in the rally, that is no more industrially motivated - - -
PN499
THE COMMISSIONER: But that's - - -
PN500
MS GOOLEY: Than attending the rally is industrially motivated.
PN501
THE COMMISSIONER: Yes. Yes, no, I understand the submission.
PN502
MS GOOLEY: so we say the first element of what is necessary to be established has not been established, which is that this has an
industrial character and that therefore that we submit that there is no jurisdiction for you to make an order at all. We then go
to the question about whether there is in fact any industrial action that is probable. Before I do that, Commissioner, I just want
to address this issue of what I'm going to refer to as the burden of proof in this matter. You'd be aware that - sorry, I'm still
not quite caught up with the Act in terms of its new
numbers - section 496 orders of this Commission carry with them, if breached, quite serious consequences, far more serious than
was ever available prior to the enactment of the Work Choices Amendment Act.
PN503
The Act provides clearly that a person who is bound by the order must comply with the order and as previously occurred with 127, a court can grant injunctive relief for breaching an order of the Commission. In addition to that, at section 814 of the Act, there is now a provision that makes a breach of one of these orders an offence, and at section 814 you will see that a person commits an offence if the Commission has made an order under this Act, other than an order under part 10 awards or the registration and accountability of organisation schedule, and the order binds the person and the person engages in conduct and the conduct contravenes the order. You will see that there is now a penalty of 12 months' imprisonment.
PN504
In addition the old penalties that existed prior to the amendments that made persons subject to a breach liable for, as an individual, 60 penalty units or body corporate, 300 penalty units, still apply. Now, we point those out to you because we think that it raises fairly and squarely the question of what level of satisfaction you should have, that in fact you should make these order. We accept that when making a decision as to whether you make the orders, there is a civil burden of proof on the applicant in this matter to establish on the balance of probabilities that industrial action is pending or probable. We'll just do it with probable I think is the easiest way at the moment.
PN505
We say given the seriousness of the allegation, ie that the AMWU and its members are proposing to engage in unlawful industrial action, that you should adopt the approach that was taken by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd 192, 67 ALJR at 170. There, Mason CJ, Brennan, Dean and Gaudron JJs said, and I will quote:
PN506
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. ...(reads)... are considerations which must affect the answer to the question, whether the issue has been proved.
PN507
So we say in this matter, given the seriousness of the allegation, that the employees are intending to - - -
PN508
THE COMMISSIONER: Doesn't the seriousness of the allegation relate to whether or not there's a breach of the order and not the order itself?
PN509
MS GOOLEY: No. We say the first step in these circumstances is whether - the first step that needs to be proved is that - - -
PN510
THE COMMISSIONER: But that clearly can't be so given that you're probably up for the order anyhow. I mean, I don't know that I've got any - we had some discussion about this on Friday, but the Act provides that an interim order must be issued 48 hours - now, okay, that's been foregone, but the 48 hours is going to be up, you know, at some point in time, whenever it's measured from, but it seems to me to be run counter, totally counter to your submission that the Briginshaw standards apply in such as this, that in the granting of an order where Parliament has required the Commission in circumstances other than this, to issue an order within 48 hours even if it can't come to a view about whether (a) the conduct is occurring or (b) anything else is for that matter.
PN511
You know, it seems passing strange that it was intended that making a final order should somehow require the more cogent form of evidence in circumstances where a breach of the interim order could lead to the same sort of results.
PN512
MS GOOLEY: And that's why we presume that there are provisions in the granting of the interim order about public interest. It's not mandatory in terms of that requirement which is, it still can't be contrary to the public interest.
PN513
THE COMMISSIONER: That's for another day, isn't it, but anyhow, at least on one level, the argument is - you see, there are no consequences
from the
making - as I see it, there are no consequences arising from the making of an order. The consequences arise from breach of that.
PN514
MS GOOLEY: No, the consequences that lie in the making of an order in circumstances where there's no evidence that should lead you
to make the
order - - -
PN515
THE COMMISSIONER: No evidence, no evidence. Not no evidence. Where the evidence has got to be strict and cogent and all of those sorts of things.
PN516
MS GOOLEY: Yes. There is a consequence, Commissioner, which is that people are required to comply with the order until such time as it's set aside.
PN517
THE COMMISSIONER: Yes.
PN518
MS GOOLEY: Right? Which means that those workers at Campbellfield who will be made, if you make this order - - -
PN519
THE COMMISSIONER: Can't take industrial action.
PN520
MS GOOLEY: Can't attend the rally.
PN521
THE COMMISSIONER: Well, if I come to the view that attendance at the
rally - no, sorry, I don't agree with that one bit, for reasons I've already given. All of those on night shift and all of those
on afternoon shift can attend the rally.
PN522
MS GOOLEY: Yes, that's right.
PN523
THE COMMISSIONER: That's a matter of fact.
PN524
MS GOOLEY: Yes, they can.
PN525
THE COMMISSIONER: They may choose not to. They may choose to sleep instead and all of those things, but there is nothing about their attendance at work that prevents them from attending the rally. So I don't want to be misunderstood in relation to that. But let's - - -
PN526
MS GOOLEY: Let's just talk about the day shift people.
PN527
THE COMMISSIONER: Well, it doesn't really matter. If I am of the view that it is industrial action, contrary to the submissions you've put, then the consequence of breaching that order is what gives rise to a standard of proof. Not whether I give the order or not.
PN528
MS GOOLEY: Well, I'm saying, my submissions to you are this. That in making that decision as to whether there is industrial action - - -
PN529
THE COMMISSIONER: They choose whether or not to breach the order.
PN530
MS GOOLEY: They are put in the position where they have to make a choice between their political right to protest and - - -
PN531
THE COMMISSIONER: Well, I understand what you're saying about that.
PN532
MS GOOLEY: And complying with the order.
PN533
THE COMMISSIONER: I understand what you're saying about that. If I come to the view that it is industrial action, then that's not going to be decided on the balance of probabilities. That's an issue of law, not decided on the balance of probabilities or anything. I mean, it either is or it isn't industrial action, and there's no amount of evidence that comes into that. Instead, a question of whether it's probable that they're going to be taking that industrial action, and there's no reason why in my mind there should be greater standards applied there because the consequences of the order in those circumstances are zero.
PN534
The consequences of what occurs is that if they breach the order - and that's when the standards have got to be there, because of the 12 months in the can and all those things, that the employer would presumably want, because they're applying for the order and they - you know, if the order is not followed, they want to go down those tracks.
PN535
MS GOOLEY: Well, our submissions are that in making the assessment of the evidence you can have regard to the consequences. There are two consequences. Employees - - -
PN536
THE COMMISSIONER: There are no consequences if they comply with the order.
PN537
MS GOOLEY: Well, there are serious consequences for them. They won't be able to join in the protest.
PN538
THE COMMISSIONER: Is that the sort of serious consequence that - - -
PN539
MS GOOLEY: Well, that's - - -
PN540
THE COMMISSIONER: No. Is that the serious consequence that is contemplated by the High Court?
PN541
MS GOOLEY: No, but - - -
PN542
THE COMMISSIONER: Okay.
PN543
MS GOOLEY: But those employees will be put in a position where they have to - - -
PN544
THE COMMISSIONER: I understand the position they're putting. Look, I'm addressing the submission you're making and I'm asking is that the sort of consequence that leads to a requirement that I apply a higher standard about - standard is the wrong word - but have a higher threshold in regard to the type of evidence that I've got to take account of.
PN545
MS GOOLEY: Well, it's clearly the court was considering situation where people were facing civil proceedings for the penalty for them, and you're not, of course, facing - you're not in that position where you have to decide to impose the penalty on the employees. So in that sense it is different. But we say that you can have regard for the circumstances that will arise if you make an order and the two consequences are this, what the main consequence of this, as has been discussed in many other cases, the decision to take away somebody's rights to participate in legitimate political protest is a serious decision, and that was discussed in the Land case, in the CFMEU and the power company in Western Australia where they said, to take away somebody's right to political protest is a serious decision. It's a serious infringement of their rights and should not be done lightly. They said in the context of the legislation that existed at that time, it was within the power of the Commission to do it.
PN546
THE COMMISSIONER: In a situation where the Commission had discretion.
PN547
MS GOOLEY: Yes.
PN548
THE COMMISSIONER: Yes.
PN549
MS GOOLEY: Well, in the situation where the definition of industrial action had not yet addressed the question of the age.
PN550
THE COMMISSIONER: Yes, I understand that, but it was in a situation where the Commission had discretion about whether it should issue the order. You see, we're jumping ahead of ourselves.
PN551
MS GOOLEY: Yes, I agree you don't have - - -
PN552
THE COMMISSIONER: It seems to me the logical - - -
PN553
MS GOOLEY: I agree you don't have discretion if you find that industrial action is probable.
PN554
THE COMMISSIONER: Yes.
PN555
MS GOOLEY: Right? Because it says "must" and that's quite - - -
PN556
THE COMMISSIONER: You see, all of those matters were addressed in the exercise of discretion, not to the standard - I keep using that word and I don't mean to. I well and truly understand the distinction between the balance of probabilities, which is the standard, and the level at which the evidence should come in. I understand that Briginshaw distinction, as it's called sometimes. But I'm not sure that the result of me issuing an order is one of those things that lead to requiring that higher level of evidence. But I understand the submission about it.
PN557
MS GOOLEY: So, if we go now back to the question of the evidence, about what is happening at this site. There's a number of things that I need to say about this. The employer in this instance seeks to rely on a number of meetings that were held with the union in relation not about any decision the union had made about organising mass meetings of members to consider what they were going to do in relation to 28 June. All the meetings occurred at the initiative of the employer because the employer wanted to put forward a proposal to the union about 28 June, to put forward a proposal to the union that would have seen the employees not engaging in industrial action because it would have been action authorised by the employer to use that exclusion that's included in the definition, and the union participated in those meetings in a way to try and facilitate the attendance at the rally in a way that met the needs of the employer.
PN558
Now what the employer wants to turn around and do is use the union's participation in those meetings as evidence that the union was
organising anything on 28 June in relation to Campbellfield. The evidence before you that what the union has done in relation to
Campbellfield is that, not that posters have gone up of the form that went up on other sites. All they're able to do in reliance
on what the union is alleged to have done in relation to the 28th is a notice that went
out - well, at the earliest we can suggest it went out some time in April because they're announcing the May Day event on the Monday,
1 May, and in fact a number of other activities about community meetings and union solidarity meetings, et cetera, which were all
planned to be attended in early May. We note no complaint by the employer that notifying people of meetings on 1 May, which is a
Monday and I don't recall Monday, 1 May being a public holiday - - -
PN559
THE COMMISSIONER: Not in this state.
PN560
MS GOOLEY: No, in Queensland, and so we get notification that there's going to be a 28 June national protest. There's no call on this notice that the employees are being called to take any strike action on 28 June at all. So we have that notice. Then we have the union responding to meetings called by the employer to discuss 28 June, not leaflets going out to members, not meetings being held at the workplace, not anything of that nature. There is no evidence that any organising was going on at the Campbellfield site.
PN561
So we had the meetings and we had the meeting at which the union puts the employer's proposition. Now, Ms Halfpenny's evidence is that she didn't think that would be supported by the employees because Campbellfield had a history of not accepting some people being authorised not to attend and some people being required to attend, and that's about the only evidence we have as to why the employees at Campbellfield rejected this proposition. But we don't think it's a reasonable inference to take the step that Mr Bourke wants you to take, which is to say, well, what the union should have done was get a resolution passed at that meeting either in support or in opposition to the rally. That's not what the meeting was for.
PN562
The meeting was to consider a proposal put - - -
PN563
THE COMMISSIONER: I don't think he went that far. I think he talked about a counter-proposal.
PN564
MS GOOLEY: Yes. This is an initiative of the employer. The union at this point, there is no evidence that the union is organising anything. The only thing they can point to is what happened on the previous occasions at this site and at the other sites and they say that on the last occasion Ms Halfpenny's evidence is, and I think it's not contradicted, was that on the last occasion the union put up and recommended the company's proposition that there wouldn't have been any industrial action because it would have been a four hour authorised stoppage and the employees rejected it.
PN565
On the first occasion the evidence is that the union encouraged people to attend the rally and the evidence is that it appears nobody worked. But that's the only evidence they've got, is because it happened in the past, it's going to happen this time. Except there are some significant differences this time. Mr Bourke said that on the previous occasion the site had been leafleted. It hasn't been leafleted this time. Mr Bourke said on the lasts occasion there were mass meetings conducted by the union. No mass meetings conducted by the union this time.
PN566
Those meetings that were called to put the company's propositions weren't mass meetings to seek endorsement for stopping work on the 28th, and Ms Halfpenny's evidence today is that while she is going out to the site with other organisers to explain what has been happening - and that's not an unreasonable proposition because despite the fact that the employer hasn't notified the employees, the employees are all parties to this application because they're seeking orders against them.
PN567
So it's not unreasonable for the union to go out to a workplace to explain to employees what steps the employer has been taking since Friday in relation to these proceedings, but there is no evidence that Ms Halfpenny is conducting any mass meetings today or tomorrow and as she said in her evidence, in contrast to what was said by the employers, when they were asked, you know, what are you going to do next, her evidence is that what she said was, well, if we were going to organise it we would have to have meetings on today and tomorrow because the rally is on Wednesday. Not we are going to have meetings on Monday and Tuesday.
PN568
So we say there are quite significant differences between what occurred last time and this time and we also have Ms Halfpenny's evidence that one of the other significant differences between last time and this time is in fact the attitude of the workers at Campbellfield which is that the legislation is in existence. So the difference was, last time there was some prospect that they might be able to stop the legislation going through, and that's not a fanciful view, given the state of the Australian Senate where the Federal government has a majority of one and that majority has not been sustained on all occasions.
PN569
But now the legislation is through, as she said, there's been some expression of the view, well, what difference does it make now? So we say that in relation to the evidence about what is likely to happen at Campbellfield, Ms Halfpenny says she doesn't know what the individual workers are going to decide in relation to Wednesday, and decisions of individual workers lacking any collective organisation is not industrial action. If an individual worker decides not to turn up to work on Wednesday, it's not industrial action, it has no necessary collective element to it at all - - -
PN570
THE COMMISSIONER: It's got a collective element. It mightn't have the motivation - if one or two of them didn't turn up, it would lack the collective element, but if they all don't turn up - - -
PN571
MS GOOLEY: Well, that was surely the issue that arose in relation to the allegation that people were taking sick leave as industrial action in Western Australia, the blue flu. It's got to be more than - - -
PN572
THE COMMISSIONER: If there's a meeting at which people decide not to come to work on Wednesday, we've got a collective.
PN573
MS GOOLEY: Yes, and there isn't such a meeting.
PN574
THE COMMISSIONER: Well, hasn't been yet, yes.
PN575
MS GOOLEY: There hasn't been a meeting. Ms Halfpenny's evidence is that there's no meeting planned. They're going out today to talk to people during their breaks. That would necessarily be an individual discussion with individual workers to let them know what's happening. So we say that there's insufficient evidence before you for you to conclude that industrial action is probable.
PN576
Now I want to turn briefly to the nature of the orders. Sorry, before I do, yes, in relation to the - - -
PN577
THE COMMISSIONER: Can I just ask. I mean, if there was to be a meeting held today or tomorrow at which people made a decision to go out, then there wouldn't be much left to argue about, would there, other than the issue of whether it's industrial action?
PN578
MS GOOLEY: Yes, that's right. There might be a question as to who the order should be directed to.
PN579
THE COMMISSIONER: I suppose you'd take a decision - - -
PN580
MS GOOLEY: Yes, yes. I want to turn to the nature of the orders and to submit to you that no order should be made against the employees in this matter. The first thing I wish to point to, and I - - -
PN581
MR BOURKE: My learned friend is saying she doesn't appear for the employees. I object to the appropriateness of making submissions on behalf - - -
PN582
THE COMMISSIONER: Well, it's been held before that - I mean, whether she appears for them or not, she appears for the organisation that represents them. She mightn't appear for them individually, but you can't have it both ways. Either they haven't - you would have to take it as adequate service, that the service on the organisation, and the Commission has held that in the past. So it's open to her to represent them in some abstract way at the very least.
PN583
MR BOURKE: Well, that's what I would have expected that they would do, that on behalf of the union representing their members, they would make submissions.
PN584
THE COMMISSIONER: Yes, well, that's what I understand that's happening.
PN585
MS GOOLEY: Thank you. The first thing that I'd like to point out too, that the only organisation that was notified of this application was the AMWU, yet the ETU is both party to the agreement and it has been put in evidence - - -
PN586
THE COMMISSIONER: I'm sorry, who else?
PN587
MS GOOLEY: The ETU.
PN588
THE COMMISSIONER: The ETU.
PN589
MS GOOLEY: And it has been put in evidence that there are ETU members at the site. Now, while I'm aware of that decision that said that service on a union is service on its members, there's no decision of this Commission that says service on the AMWU or service on the ETU or its members - - -
PN590
THE COMMISSIONER: No, and clearly they couldn't be part of it.
PN591
MS GOOLEY: No, but the employees who are members of the ETU on the decision of the Full Bench in that previous matter which I had the - - -
PN592
THE COMMISSIONER: Can't be covered by any order.
PN593
MS GOOLEY: Can't be covered by any order, yet this order is seeking to bind all employees at the site.
PN594
THE COMMISSIONER: I see, yes.
PN595
MS GOOLEY: And equally, you will see, and if I take you to the agreement, Commissioner, which is at tab 3, you will see that the agreement shall apply to Nestle, the AMWU and the CEPU, and if I take you to the order, you will see that the order seeks to bind - - -
PN596
THE COMMISSIONER: Yes, I understand the point.
PN597
MS GOOLEY: Yes, and it also seeks to bind all employees whether they be members of the union or not and again, service on the union is not service upon non-members.
PN598
THE COMMISSIONER: On non-members, no.
PN599
MS GOOLEY: So I accept that you're bound by the decision that provides that service on the AMWU is service on its members, though I do want to put on record that - - -
PN600
THE COMMISSIONER: So the variation that would be necessary to accommodate that, and I thank you for drawing it to my attention, is each employee who is a member of the AMWU - - -
PN601
MS GOOLEY: Yes, it could only be - - -
PN602
THE COMMISSIONER: Something like that.
PN603
MS GOOLEY: Because there's been no service on anybody else and they've had no notice, and I simply do want to put on the record - - -
PN604
MR BOURKE: There's no objection to that variation.
PN605
MS GOOLEY: The record that while we accept that you're bound by the Full Bench decision in relation to service on the union if this matter goes forward - - -
PN606
THE COMMISSIONER: I think I'm doubly bound by it because I think I was a member of the bench.
PN607
MS GOOLEY: I can hold you responsible for it, can I, Commissioner?
PN608
THE COMMISSIONER: As you can of The Age one as well.
PN609
MS GOOLEY: We would want to put it on record so that we can retain the right to argue this matter if it goes further, that we do not accept that service on the AMWU is service on the employees in these circumstances and therefore, they should equally not be bound by any order that was made by you in this instance, if you determine to make an order.
PN610
The other thing that we want to say about this and I want to thank my learned friend for providing a copy of the decision of Justice Finkelstein in Skilled Engineering the Automotive Food and Metals Engineering decision which is at tab B. What we want to say is about this letter they want Ms Halfpenny to write. There are two things we want to say about this. The thing that makes an order of this Commission binding on employees is the Act, not a letter from the union saying that industrial action has been cancelled.
PN611
Employees will be that they are bound by the order if we are wrong in our submissions that they can’t be bound by an order of an application for which they have notice. If they are bound by it, they are bound by it by virtue of the order and we think that it is an attempt to try and suggest that to get employees to abide by an order of this Commission one needs the imprimatur of the union, not the imprimatur of the Commission and we think that is not sustainable.
PN612
We also think that what is being required is actually misleading. Now you know what industrial action means. I know what industrial action means. But unfortunately, it’s unlikely that the employees are going to have that clear distinction.
PN613
THE COMMISSIONER: We don’t know do we?
PN614
MS GOOLEY: Yes, well we have a better idea than some of the employees and you will see that what this letter says is that they want Ms Halfpenny to write:
PN615
As you were advised that any industrial action at Campbellfield that was planned for the national day of protest on Wednesday 28th is cancelled.
PN616
Now my concern Commissioner is that that will lead people to the view that what is cancelled is the national day of protest. Now in his decision in Skilled Engineering, Finkelstein J discussed this problem of employees being misled and this was because what they required was that the union give notice to the employees to use their best endeavours to bring the terms of the restraining order to the notice of employers of Skilled Engineering. On page 117 of that decision he says:
PN617
During the course of the hearing I queried whether it was desirable to make a give notice order. I was concerned that the workers on strike might not understand the precise scope of the restraining order. ...(reads).... It does not surprise me that someone in Mr Robb’s position, or a position of workers on strike, might not understand the true effect of the restraining order. As a general rule there will be few cases where it is necessary to make a give notice order.
PN618
In this case in relation to parties who are not parties to the litigation. He says:
PN619
I accept that it may be on some occasions where it might be necessary to make such an order, although those occasions are not likely to arise very often.
PN620
What he says at the end of that paragraph is:
PN621
If there is a risk of misunderstanding the restraining order should be accompanied by a written explanation of it’s effect. The explanation should be approved by the court.
PN622
Now what we say in relation to this order is that we say as Mr Robb misunderstood the order that he was required to explain to the employees the employees in this instance may misunderstand the advice that you are going to require Ms Halfpenny or another authorised official of the union to provide, which is, - while we read the words any industrial action in Campbellfield that was planned is cancelled – that the workers in fact may read it that the national day of protest is cancelled – it’s not, as we have discussed throughout this morning. Employees can attend the protest without even if you find that stopping work to attend the protest is industrial action, there are many employees at this site who can attend this rally, without engaging in any industrial action and therefore, we say that for two reasons this letter shouldn’t be sent.
PN623
One, it misleads employees, and two, we suggest it is as was raised before, an attempt to try to put a political imprimatur on this which is that the union has cancelled this industrial action. Well it’s not the union, it’s this Commission. What is necessary to say to the workers, and all that is necessary to say to the workers is, that the Commission has made an order and here it is and the employer is best placed to do that. They, who sought the order, can put the order up and explain to their employees what the order means. If there is anything further?
PN624
THE COMMISSIONER: Thank you.
PN625
MR BOURKE: Can I deal with the first point whether this is industrial action if the evidence is there? This reliance on the Age case and we firstly say if we win on the fact that the deed was part of the discussion, we say there is clearly an industrial – there’s a bargaining element. I will come back to that but my learned friend has said, Ms Halfpenny has denied that she ever raised that on 22 June, but in the very same evidence she has said she has effectively tied the two issues together. The rally and the failure of Nestle to sign the deed.
PN626
So it is my submission that the atmosphere is clearly of an industrial element in terms of the failure to sign this deed. It is a component, it would have to be a component of any work force’s thinking. The second thing is the note referred to in section 420 of the Age decision, and I will say something about this. Firstly you start with the section 420 where we fall fair and square into 420(l)(a) and for example, 420(l)(c) and that was in contrast we had the Age case. We had the closing down of a plant had been held as a form of lock out of industrial action and the note was referring to the Age decision, saying that you needed some industrial character.
PN627
It is not a suggestion – and there’s the reference there for example of the employee absenting himself from illness does not fall within that section. So all the requirement is, is for an industrial ingredient. So for example the closing down of a plant doesn’t become a lock out. Now all over here, this type of stoppage has an industrial ingredient. It doesn’t have to be a demand. The industrial ingredients are this. One, you’ve got the deed. Two, you’ve got the industrial ingredient that it involves a classic stoppage or strike action. That in itself that conduct in itself has an industrial ingredient.
PN628
The third matter is that it is not like the collection and we would say – urge – it its unsafe to act upon any type of media statement as authority, but it’s not like - - -
PN629
THE COMMISSIONER: There is a formal decision.
PN630
MR BOURKE: Sorry?
PN631
THE COMMISSIONER: There is a formal decision that applies to that, which I’ve seen, so I draw your attention to that.
PN632
MR BOURKE: Yes, thank you. But it’s not like a collection for a person, for a deceased worker, it involves action in relation to industrial entitlements that have been affected by legislation. So it has industrial character there. But we say when you start with the section and look at it, it falls fairly and squarely within the terms of section 420 as distinct from the artificial hit of suggesting that someone has failed to work, and thus taken strike action, as in note two, when in fact they were ill.
PN633
THE COMMISSIONER: I think it was you that made the submission
Mr Bourke, in the Age on behalf of the Commonwealth, that the action must be industrial in character.
PN634
MR BOURKE: That’s right. The Commonwealth didn’t say it had to be a demand they said it industrial in character.
PN635
THE COMMISSIONER: No, I understand yes, so non attendance at work is industrial in character?
PN636
MR BOURKE: In that submission what I said was for example, strike action itself irrespective of the motive would have sufficient industrial character. We say irrespective of the motive - - -
PN637
THE COMMISSIONER: The Bench didn’t go with you, did it?
PN638
MR BOURKE: The collective walk out or the collective - - -
PN639
THE COMMISSIONER: But the Bench didn’t go with you, did it?
PN640
MR BOURKE: But they didn’t rule it out.
PN641
THE COMMISSIONER: Well we – it didn’t think it desirable to go any further than this is going?
PN642
MR BOURKE: As appropriate, with respect. We would say on any view there’s been a confirmation of the link between – we say not only just a political issue, but the industrial issue concerning around Work Choices and the deed. Then you have the collective element of the – what we say, is the probable industrial action. The issues have been tied together.
PN643
Can I just then move to the question of whether there has been any discussion about the deed? We’ve one, got the evidence of Ms Halfpenny - - -
PN644
THE COMMISSIONER: Can I just – I want to make sure I understand what you are saying. Is it your position that collective action by employees for any reason constitutes industrial action? Is that – I’m trying to understand how you come to grips with that situation.
PN645
MR BOURKE: We would say a collective stoppage of the workforce, say for health and safety reasons and so forth. That falls classically in the arena of a strike of whatever period, and itself would have sufficient industrial character.
PN646
THE COMMISSIONER: So that the distinction that the Full Bench made in the Age case just, is not supported?
PN647
MR BOURKE: We say no, that once you fall fairly and squarely on a reasonable reading of the parts of section 420, that would have sufficient industrial content in itself to say that.
PN648
THE COMMISSIONER: The fact that it’s employees.
PN649
MR BOURKE: Yes. But if the Commission was against us we would say - - -
PN650
THE COMMISSIONER: But those words remain effectively the same as was there before the Commission in the Age case. A failure or refusal by employees to attend for work. Now if an employee or employees fail to attend to work because of illness, that’s not industrial action.
PN651
MR BOURKE: No, what we referred to was that a collective act to refuse to attend for work.
PN652
THE COMMISSIONER: It would be so easy for Parliament to say that wouldn’t it and they haven’t?
PN653
MR BOURKE: Commissioner, there is always a tension between making it longer or shorter.
PN654
THE COMMISSIONER: It would make it a lot shorter, wouldn’t it?
PN655
MR BOURKE: But you have the note that the issue is where the action that is not industrial in character, and the reference to the example of the illness. You have to look at the practical.
PN656
THE COMMISSIONER: I look at practical things. I think of a number of practical events. I am old enough to remember the 11 November 1975. The failure to – the fact that people walked off the job on that occasion. It wasn’t motivated by anything industrial. Yet, you would call it industrial action.
PN657
MR BOURKE: Can I just say Commissioner, as a – at a secondary level if there needs to be - - -
PN658
THE COMMISSIONER: Then there’s the people who mightn’t attend to work tomorrow morning because an Australian soccer team either won or lost a game.
PN659
MR BOURKE: That doesn’t have a collective element.
PN660
THE COMMISSIONER: I reckon it might.
PN661
MR BOURKE: But can I say Commissioner, we do have the other – the case is stronger if we need further, in that the legislation in itself is inherently industrial. You’ve heard from Ms Halfpenny - - -
PN662
THE COMMISSIONER: And the legislation that we say complained - - -
PN663
MR BOURKE: Correct, the issue has been tied up with the deed, for which there has been a demand made, signed the deed. We have the further issue there has been a discussion of what could be called a dispute, or bargaining, about how the stoppage is to be conducted on 28th. We have put a proposal, and that proposal has been rejected. There is a lot of industrial content in the proposed action on 28 June.
PN664
Now could I move to the issue of the deed and how critical that is in the whole play of things. Ms Halfpenny has denied that she said the words she said to Mr Scott. But the fact of the matter is, she accepts that she had tied the two issues up together and that the workforce understand that. That the two issues are linked, so there is a critical industrial linking it back to the deed, in relation – she accepted any consideration by the workforce to stop work. It is part of their reckoning is the deed and the failure of Nestle to sign the deed.
PN665
You then have Mr Scott, has spelled out exactly what the words were, well Ms Halfpenny has really been indirect in the way she answered the questions over that conversation. She has kind of worked back from what would I have said as distinct from a strong statement, this is what the conversation was. It is supporting the position that the deed was critical to any discussions. We have Mavromatis, obviously a very important player, AMWU organizer at that site, undisputed he puts on the table on 22 – that’s last Thursday where time is now of the essence, we are not far off – saying I advise you to sign the deed.
PN666
He hasn’t put it in the blunt terms of Ms Halfpenny that we wouldn’t be having these discussions, but effectively it is at least going to help a hell of a lot in getting this over the line. So that in itself gives the sufficient industrial content- and just in terms of the probabilities. This is not the way my learned friend so cast, like a murder case. We only have to prove – is it probable and clearly the scheme of the section is to ensure that unprotected action does not occur so if you prove that it’s just probable, an order goes.
PN667
We don’t have to prove 100 per cent that this is going to occur, just that it’s probable and the fact that the work – they have communicated to the workforce that the two issues are linked, Work Choices and the deed. The workforce knows that we have not signed a deed, the organizer is mentioned ion the deed, and saying that I advise you as late as Thursday sign the deed and then if Mr Scott’s evidence is preferred to Ms Halfpenny, the discussions will go away. The fact that we have not signed the deed, makes it absolutely probable that industrial action will proceed and in fact, makes it in a context that industrial action is threatened. That is the thing hanging over our head at the time the deed is raised.
PN668
Now can I move to the issue of the civil onus. With respect Commissioner, the point you made to my learned friend we say is absolutely correct, the issue of onus will heighten once you come to proving a breach, because of the penalty provision. But can we just say this, in terms of Need Holdings that type of onus of proof of Briginshaw and Briginshaw is the type of situation where you have a person who’s never done anything wrong and then accused of fraud. But this is in a context in terms of onus of proof, where they are saying – and one of the phrases used by in the passage was – inherent and likelihood of a conduct.
PN669
Here we are only wanting an order because of probable industrial action inherent or unlikely – excuse me - you know, the last two occasions you’ve had 100 per cent of people at Campbellfield go out. In contrast to the feeling going softer, if Ms Halfpenny is accepted she recommends four hour stoppage and that’s rejected when one goes out for the lot, the eight hours including every shift on the second occasion. The only thing she can point to why the attitude would have softened was the legislation is in place, but she accepts that the AMWU attitude has not softened and she has made it clear to the workforce there is also an issue with the deed.
PN670
We have the passage from Michael Karakatsanis at paragraph 9. At paragraph 9, where he talks about the critical role the AMWU have at these relevant sites. So if the AMWU is still taking a strong role in relation to the legislation and the protest, it is entirely probable that the workforce will decide they won’t go out. Now there was a statement made about in terms of onus of proof, we don’t see the connection with the taking away of political rights. That could have been a matter in the exercise of discretion which is no longer there, but can we just say on that issue. It is not as if we have – we have tried to accommodate people at each of these sites. Down to the point, for example, at the Echuca office, a skeleton of seven people clearly knocked flat.
PN671
The role of the union is critical here. What this Skilled Engineering case point at paragraph 11 is that reflecting the involvement of the union in industrial action is the involvement in negotiations and you’ve had negotiations at each of these sites. With deals struck directly with delegates or organizers but no deals struck at Echuca which we are living with and Campbellfield.
PN672
Now the point that they point to that has changed, they say it’s the lack of pamphlets at Campbellfield. That can be read either way. It can be read that they are very serious they are keeping their cards close to their chest, which is effectively what Ms Halfpenny admitted in order to protect us, we are not going to tell you what we are doing until the very last minute. They clearly knew, that Campbellfield is the key location where they probably know there will be a big blue, we would be prepared to go to the Commission and so that is – save for that notice the – as you rightly point out Commissioner, B3 is relatively old. You have pamphlets undisputed in each of the other three locations, but Campbellfield.
PN673
It is not the fact that Campbellfield is not significant. If you had 100 per cent go out on each of the last two occasions and you had Bronwyn Halfpenny attending at that – on the evidence – on that location a number of occasions, direct communications with her and involvement of the AMWU organizer at that location, so it’s not as if they are ignoring it. So the inference to be drawn is that we’re not going to put up a pamphlet that they know you might use.
PN674
With respect, there’s really not been an adequate explanation why if they’ve not got anything – cards up their sleeve, they didn’t put an organizer counter offer on 19 June. Ms Halfpenny in her evidence effectively said I didn’t think of it. It is just totally improbable a very experienced union official, just didn’t think of it. In fact, Commissioner, you don’t even need to make an ultimate finding, I believe this person, I disagree with this person. You can look at the totality of the evidence and accept there is a real probability of industrial action in view of the totality of the evidence.
PN675
What you really didn’t have is an answer to the conversations on 22 June. Where it’s been admitted to us you are not going to know until the last minute through the delegates. Ms Halfpenny admitted in the witness box, and a discussion about the – worrying about the 127 orders and so forth. That level of concern and strategy reflects the fact there is a fair dinkum program in place in relation to Campbellfield. This is not like I haven’t made up my mind whether I’ll talk to the people about striking or not, going around – it is just absurd. Totally absurd, and she’s already saying, she’s already disclosing I’m thinking ahead, because look at what she did back in October 2005.
PN676
With respect, Ms Halfpenny’s brain is being played 100 per cent to how she plays out Campbellfield and Commissioner just from your own experience, it just doesn’t add up. You got the whole build up, there is either in place a plan that there is going to be stoppages at Campbellfield, or there’s going to have to be a mass meeting to give the workers entitled to discuss it. For her to say, well I’m just too busy with this, when there is no doubt with the AMWU this process is a very big ticket item. As it was on the previous other two occasions.
PN677
Now can I move to the form of order. I think there was a request for qualification that the employees would be directed to members of the AMWU, there’s no objection to that. The next complaint was in relation to the letter. With respect you had the evidence of Mr Karakatsanis, the link, the importance of the AMWU at these sites and their involvement. There was one piece of evidence where it was first raised back in May and someone said well we’ll have to speak to Bronwyn.
PN678
Her influence is critical and that’s why the proposal for the letter, no secret agenda, we really didn’t think it was ambiguous, we wanted to make it clear that it was only directed to the industrial action and not the rally. You could say you are advised that any industrial action in order to attend the rally is cancelled or some other qualification to be clear that the rally is not cancelled itself. This form of order is not unusual.
PN679
THE COMMISSIONER: It might be unusual, but is it open to me? Subsection (l) of 496 says, if it appears, I must make an order that the industrial action stop not occur and not be organized. Doesn’t say I can do anything else.
PN680
MR BOURKE: There was - - -
PN681
THE COMMISSIONER: It used not to say must.
PN682
MR BOURKE: No, and 127 was otherwise it just used to stop at stop, or not occur and there is Federal Court decision which looked at this. BHP Steel I can hand it up for you, 2000 FCA it is actually at 102IR 275. Where an order was made the union do anything within it’s power under the rules, to ensure that the employees comply with the order and there was no – that was not successful, or it was not challenged. It was accepted at Federal Court level without criticism. If I can just hand that copy up. So I think the thinking behind it is that the Commission can do anything incidental to making that order under 496(l) effective.
PN683
THE COMMISSIONER: I’ve got the reference I02IR 275?
PN684
MR BOURKE: Yes. Those are the submissions.
PN685
THE COMMISSIONER: I have to give some thought to what’s happened, I’ll be reserving my decision and whichever way it goes you’ll be advised of the outcome, the reasons will be sometime coming. I think in the circumstances that is the preferable way to proceed. Proceedings are adjourned to a date to be fixed.
<ADJOURNED ACCORDINGLY [11.24AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MICHAEL KARAKATSANIS, SWORN PN2
EXAMINATION-IN-CHIEF BY MR BOURKE PN2
EXHIBIT #B2 LETTER TO MR SCOTT FROM
MS HALFPENNY DATED 23/06/2006 PN15
CROSS-EXAMINATION BY MS GOOLEY PN16
THE WITNESS WITHDREW PN27
ROGER IAN SCOTT, SWORN PN28
EXAMINATION-IN-CHIEF BY MR BOURKE PN28
EXHIBIT #B3 AMWU NORTHERN NEWS PN38
CROSS-EXAMINATION BY MS GOOLEY PN39
THE WITNESS WITHDREW PN57
BRONWYN HALFPENNY, AFFIRMED PN71
EXAMINATION-IN-CHIEF BY MS GOOLEY PN71
CROSS-EXAMINATION BY MR BOURKE PN77
RE-EXAMINATION BY MS GOOLEY PN276
FURTHER CROSS-EXAMINATION BY MR BOURKE PN315
THE WITNESS WITHDREW PN331
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