C2006/1074, Transcript of Proceedings [2006] AIRCTrans 880 (11 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15316-1

SENIOR DEPUTY PRESIDENT LACY

C2006/1074

ALCOA OF AUSTRALIA LIMITED
AND
THE AUSTRALIAN WORKERS’ UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/1074)

MELBOURNE

5.08PM, WEDNESDAY, 28 JUNE 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MR T CASPERSZ: I seek leave to appear on behalf of the applicant.

PN2

MR L EDMONDS: I appear on behalf of the CEPU.

PN3

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

PN4

MR T DALEY: I appear on behalf of the AWU.

PN5

MR D ELLIS: I appear on behalf of the AMWU.

PN6

MR B SWAN: I appear on behalf of the Australian Workers Union. I'm with the national office of the union.

PN7

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Edmonds, about Mr Caspersz' application for leave to appear?

PN8

MR EDMONDS: Sir, the CEPU does not consent to the appearance of counsel acting for the applicant in the proceedings. I suppose I'll wait until Mr Caspersz gives his grounds, I suppose, for appearing by counsel and then I'll make further comment at that point, sir.

PN9

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, given that indication, I might as well ask you to establish your grounds before I ask the others about their attitude.

PN10

MR CASPERSZ: As your Honour would be aware, the application is for a section 496 order. Of its nature, it's of great importance to the applicant in terms of the context of its operations and covers a number of sites, your Honour, three refineries and two mine sites in Western Australia. My instructions are in respect of a number of employees, including a number or unions. In all the circumstances, including the urgency of the matter, in my submission the applicant can best advance its case through counsel and that is the reason why I have been instructed through instructing solicitors in order to appear on behalf of the applicant, to present its case and best assist the Commission in determining the matter.

PN11

THE SENIOR DEPUTY PRESIDENT: Is that all you want to say at this stage?

PN12

MR CASPERSZ: At this stage, thank you, your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: Mr Edmonds, what do you say?

PN14

MR EDMONDS: I suppose in the first instance, sir, certainly given the brevity of the grounds provided in the application, I would say that on the face of it, it doesn't actually look particularly complex and indeed, I suppose the description of the problem really only runs to probably three or four paragraphs on the final page of the application . I suppose I find it hard to understand how that application could be considered to be of such a complex nature that its case can only be advanced by counsel.

PN15

We would say that in those circumstances we don't believe that there is anything particularly complex about the factual or the legal issues involved in this matter. We don't think that the fact that the matter is urgent is of a sufficient special circumstance that makes it necessary for the applicant to be represented by counsel. We would submit that indeed, it would be most common that section 496 applications would almost always be urgent so we don't think that that in and of itself is a special circumstance. In that situation we would maintain our objection to counsel appearing for the applicant.

PN16

THE SENIOR DEPUTY PRESIDENT: Who is actually representing the AWU? Is it the national office? Mr Trotter, what do you say?

PN17

MR TROTTER: Yes, sir, we would support Mr Edmonds' statement there. We don't see any need for counsel in this issue.

PN18

THE SENIOR DEPUTY PRESIDENT: Mr Daley?

PN19

MR DALEY: I'm of the same view, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Mr Ellis?

PN21

MR ELLIS: Sir, we share the views of Mr Edmonds and say further that it's impossible for the applicant to be taken by surprise by the events today. The applicant had more than enough forewarning of today's circumstances and we say that in addition to what Mr Edmonds says is enough, we say, for leave not to be granted for Mr Caspersz to appear on behalf of the applicant.

PN22

THE SENIOR DEPUTY PRESIDENT: I don't understand what you mean by the impossibility of the applicant to have been taken by surprise. How is that relevant to anything that I have to decide?

PN23

MR ELLIS: Sir, the community day of action has been mooted for many months, for some time now and there's no complexity to the matter. The applicant has been on more than enough notice of the issues, the events which occurred today and we say that that simply just adds to the weight that we don't believe that leave should be granted for Mr Caspersz to appear.

PN24

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, what do you say?

PN25

MR CASPERSZ: Your Honour, in a follow-up reply, in my submission the test is not whether or not my friends, on behalf of the organisations, see a need for the applicant to be represented by counsel. It's my submission for the Commission to have regard for the circumstances including whether the party being represented by myself can best bring its case forward if it is represented by counsel. There has been nothing put up by the persons appearing for the unions that there is any prejudice to the unions from counsel representing the applicant.

PN26

In fact, in my submission, as far as I'm aware, at least my friends Mr Edmonds and M Ellis are legally trained at least, so that respect there's no prejudice to their organisations by counsel representing the applicant. In all the circumstances, as I've submitted, the applicant concerned can bring the best case possible to assist the Commission as best as possible through counsel - - -

PN27

THE SENIOR DEPUTY PRESIDENT: I can barely hear you at the moment,
Mr Caspersz. Perhaps the microphone could be shifted. That's not the microphone that's in use.

PN28

MR CASPERSZ: I'm sorry. Your Honour, I was submitting that the test was not whether my friends saw that there was a need for counsel to represent the applicant, the test is whether it would most assist the applicant to bring the best case possible and I'm particularly referring you to section 100(5)(a) as being one of the factors, together with the other matters set out therein. In my submission there's nothing put forward by the unions that they will be prejudiced in any respect by counsel representing the applicant. I was saying that, as least as far as I'm aware, both Mr Ellis and Mr Edmonds have got legal training at least so they cannot say that their organisations are prejudiced by counsel appearing on behalf of the applicant. In all the circumstances, in my submission, leave should be granted in order that counsel can appear to present the applicant's case and best assist the Commission.

PN29

THE SENIOR DEPUTY PRESIDENT: Which subsection are you applying under, subsection (5) was it?

PN30

MR CASPERSZ: Yes. I was referring to section 100(5)(a) in particular, your Honour, as referred to or incorporated by section 100(6) effectively by the application being under section 100(4) of the Act, on my reading.

PN31

THE SENIOR DEPUTY PRESIDENT: What does that mean, to bring the best case possible?

PN32

MR CASPERSZ: I think it means what it says, your Honour. It's a recognition by the parliament, in my submission, that an applicant or a person appearing before the Commission is entitled to be represented by counsel with the leave of the Commission in order to put its best case forward. It recognises that with the leave of the Commission, counsel can be of assistance to the Commission in doing that.

PN33

THE SENIOR DEPUTY PRESIDENT: I will grant leave to Mr Caspersz to appear on behalf of the applicant. The tests have been changed by the new legislation. It seems to me that if the test is for the party concerned to bring the best case possible in circumstances where nobody else has stepped forward for the applicant to suggest that they could put a better case than what counsel can, I have to accept that counsel is better placed to put the best case for the applicant. Yes, Mr Caspersz.

PN34

MR CASPERSZ: Thank you, your Honour. Your Honour, this is an application for an order pursuant to section 496(1) of the Act. I've heard that your Honour's chambers has received a copy of the application itself which has been filed in the Commission.

PN35

THE SENIOR DEPUTY PRESIDENT: That is all I have received, by the way.

PN36

MR CASPERSZ: As far as I'm instructed, your Honour, that is all that has been filed, given the timing of the matter. My instructions are that the application has been served earlier this afternoon. I'm not sure exactly when, your Honour, but I think it was around about - somewhere between 12.30 to 1.30 this afternoon Perth time. Therefore, it is conceded that it has come on very quickly but I think, as one of my friends said before, it is the nature of these sorts of applications that they do, of course, come on pretty quickly before the Commission

PN37

The application fundamentally, your Honour, concerns three sites in Western Australia, which are refinery sites, they being in Wagerup, Pinjarra and Kwinana and the employees engaged at those sites. Can I draw your Honour's attention particularly to clause 2, paragraph E(ii) on page 2 of - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Of what? Page 2, sorry, yes.

PN39

MR CASPERSZ: That's correct, your Honour, where there is reference to those three refinery sites as well as two mine sites in Western Australia, the Huntley mine site and the Willowdale mine site which the employees at those mine sites being members or eligible to be members of each of the three unions who are sitting at the bar table here are respondents to the application.

PN40

In effect, the case for the applicant is that there is industrial action that is taking place currently. It is industrial action which has been taking place by those employees. It is industrial action which each of the respondent unions is directly or indirectly concerned with and in particular at this stage, your Honour, I would refer to section 4(5) of the Act which reproduces on my reading, your Honour, the old section 4(8) of the Act and that is the section which when I make my closing submissions, I'll make clear the reference to, but is a section which the applicant relies upon in seeking the orders, not only bind the employees but bind the three respondent unions as well on the basis that they are directly or indirectly concerned in the industrial action which is taking place.

PN41

Given the timing, your Honour, and the time of day both in Melbourne and here in Perth, I don't intend to be much longer than that in opening, except to say that there are three witnesses for the applicant. Two of them are here already in court, one of them having come up from the country. There is a third witness who is currently making his way up from Pinjarra who, if he gets here in time, I would also seek to lead in evidence but the intention would be to seek to lead the witnesses in evidence. They would be open for cross-examination and then, your Honour, subject to any evidence from the respondents in closing submissions ..... for the applicant and seek the orders on behalf of the applicant.

PN42

As I said, unless your Honour wishes to, I don't have much more to say at this stage except to ask that the first witness be sworn in. I'm not sure, having said that, what the arrangements are in terms of where we are in Perth for the swearing in of witnesses or how the camera is going to work.

PN43

THE SENIOR DEPUTY PRESIDENT: Just tell me, what's the nature of the industrial action?

PN44

MR CASPERSZ: The industrial action, your Honour, is outlined in the actual application, that being in short that employees who were rostered for work today at each of the premises that I have made reference to, did not show up for work, as far as I'm instructed, except for some few employees. The evidence will come forward from the witnesses as to the number of employees at each one of these premises, your Honour, but I'm instructed that there are a number of employees, I'm told that they are in their hundreds and of those hundreds of employees, members of or eligible to be members of the various unions, I'm told that only a very few, relatively speaking, did turn up for work today.

PN45

The operations, as far as the requirement of the operations, are concerned, I'm told are 24 hour a day operations. They work seven days a week. As far as the mines are concerned, I understand that they are two shift operations during the day and they work six days a week. That is in short the situation, your Honour, the industrial action at the moment being that employees did not present for work today and have continued to fail to present for work today, there being no indication when they will present for work.

PN46

THE SENIOR DEPUTY PRESIDENT: What do you say was the motivation for them not attending for work?

MR CASPERSZ: Your Honour, as far as I'm instructed, and it is the case for the applicant that employees have failed to attend for work in order to attend to personal matters which in short come down to a desire to attend meetings and/or rallies under the banner of what has been termed the National Day of Protest which has been organised nationwide by the ACTU, the unions being members of the ATU, the case of the applicant being that the unions have been, as far as these facilities are concerned, instrumental in implementing the protest, they've been directly or indirectly concerned in organising these particular employees to engage in that industrial action .

PN47

THE SENIOR DEPUTY PRESIDENT: I'm going to adjourn the matter for a few minutes in any event to allow - there is some problem with the recording or your voice coming through here in any event, so I want to ensure that, if the witnesses are going to give evidence, that they can be heard or properly heard when they are giving their evidence.

PN48

In the meantime, Mr Caspersz, I ask you that you think about two things, (1) whether or not motivation has any part to play in the definition of industrial action and (2) what I should do in the event that I decide that motivation does play a part and there is no evidence to demonstrate that the action wasn't motivated by some claim against the employer.

PN49

I'll stand the matter down for five minutes and my associate will come and get me when everything has been set up for hearing the witnesses.

<SHORT ADJOURNMENT [5.25PM]
<RESUMED [5.44PM]

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Caspersz, could I just clarify, what is the nature of the evidence that the witnesses will be giving?

PN51

MR CASPERSZ: Your Honour. The evidence effectively goes to the events leading up to the failure by employees to attend for work today at the start of the morning shift, which was about 7 o'clock this morning, the evidence of discussions between various representatives of the company and various site delegates of each of the three unions involved, the evidence going to the connection between the unions' conduct and the conduct of the employees in .....

PN52

THE SENIOR DEPUTY PRESIDENT: Sorry, you faded out there. The conduct of the unions and what else was there?

PN53

MR CASPERSZ: Conduct of the unions and the actual conduct of the employees in failing to attend for work this morning. That's in brief what the evidence is, your Honour. There have been some developments though that I've just been instructed about that I feel bound to put before your Honour, if your Honour will permit it at this stage.

PN54

THE SENIOR DEPUTY PRESIDENT: Certainly, Mr Caspersz.

PN55

MR CASPERSZ: That is I'm instructed only shortly, a few minutes ago, the company representative who is here with me at the Commission received a phone call from one of the delegates for the AMWU to inform the company that about 40 AMWU members have now returned to work at the Kwinana facility in Western Australia. I have no instructions about any of the other employees, those hundreds of employees that I referred to before the break, your Honour, and I've only just found this information out. I've had it confirmed by my friend, Mr Ellis, appearing for the AMWU here but I haven't had the opportunity to discuss the matter further with my friends and if your Honour would permit, I invite my friends, perhaps through your Honour, with your Honour's leave to clarify ..... as early as possible.

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, I'll just clarify that the application is made on the basis that the industrial action is happening. Is that right?

PN57

MR CASPERSZ: That's correct, your Honour

PN58

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Caspersz. Mr Edmonds, would yo like to outline very briefly what your position is for the CPSU?

PN59

MR EDMONDS: For the CEPU, yes, sir.

PN60

THE SENIOR DEPUTY PRESIDENT: CEPU, sorry.

PN61

MR EDMONDS: I suppose in the first instance I would make an observation about the nature of the application itself. It appears the application is directed at the Communications Electrical and Plumbing Union of Australia. If I could say in the first instance that there is actually no such organisation. That's not the registered name of our organisation. We certainly appear today as a courtesy to the Commission but that's not the registered name of our organisation and any orders made against that organisation would not bind us, our officers, employees, agents, delegates or our members. I would make a similar observation, I suppose, about the Australian Manufacturing Workers Union. It's not the registered name of the AMWU either. I suppose a similar problem with binding that particular organisation would also exist.

PN62

It appears also that the application itself is directed against all employees of the company who are members or eligible to be members of the AWU, the CEPU in its proper name, and the AMWU, I presume also in its proper name, who are employed at those five sites and who are engaged in work which is regulated by one of the agreements.

PN63

I've heard from counsel appearing for the applicant that indeed a number of workers actually turned up for work today and indeed continued to work throughout the alleged strike action. We've also heard that some employees have now returned to work. It's my understanding, and I've only got very limited instructions, indeed I only obtained a copy of the application some five minutes prior to this matter proceeding, but it's my understanding that the company in writing authorised all delegates and shop stewards from the unions to attend the protest rally today. That authorisation was given last week.

PN64

My instructions are that the numbers of delegates and stewards who would be - the sort of numbers we're talking about in terms of delegates and stewards would be some 200 to 250 delegates and stewards and those persons were authorised in writing to not attend work today and indeed, to attend the protest rally. Obviously those persons are not engaged in industrial action. Obviously anyone who attended for work today and worked throughout the day has not engaged in any alleged industrial action. Obviously anyone who has now returned to work, industrial action is not happening insofar as it relates to them.

PN65

It's my understanding as well that there were a number of workers who effectively swapped shifts for today, such that they were not rostered on to be working today. In addition to that, of course, there is a number of workers in a 24 hour a day operation, not everyone is rostered on to work every day so there are a number of workers who are employees of this company who are members or eligible to be members of these unions, who are employed at these particular sites, who are engaged in work who are regulated by the agreements but who have not engaged in any alleged industrial action simply because they were not obliged to attend for work at the time that this alleged industrial action is said to have occurred so obviously they are not engaged in any industrial action either.

PN66

The proposed order or the application itself needs to be directed against those persons who the company actually alleges have engaged in industrial action. Another observation I would make is that the application appears to be directed towards people who are members or eligible to be members of the unions. Certainly the CEPU is only able to represent today those people who are actually members of the CEPU and cannot represent persons who are eligible to actually join the CEPU. We can only represent those people who are actually members.

PN67

Insofar as anyone who is eligible but is not a member of the CEPU, we would say that we're not able to represent them today and that the applicant needs to serve them with a copy of the application so that they're aware of the nature of the application that has been brought against them and they have an opportunity to turn up to put submissions on their behalf. Indeed by its rules, the CEPU cannot represent persons that are not members of our organisation.

PN68

We would say that the way forward would be for the applicant to provide a list of those persons who it says should have attended for work today and indeed, who didn't and who didn't have authorisation from the company to attend the protest rally and who have not returned to work and who are not stewards or haven't been authorised by the company to attend. If the company were to provide a list of those persons, we would then be able to cross-check them with our membership to actually see if indeed there is anyone who is a member of the CEPU who didn't attend for work today at one of those sites. At this point we would say the application does not have sufficient particulars to enable us to ascertain indeed whether any members of the CEPU actually failed to attend for work today.

PN69

THE SENIOR DEPUTY PRESIDENT: Do you concede that any CEPU members failed to attend for work today who should have been at work today?

PN70

MR EDMONDS: No, sir, I don't concede that. I haven't had an opportunity to take full instructions on that issue because, as I say, I only received a copy of the application some five minutes before the matter was brought on for hearing. At this point, sir, I don't have full instructions but I can't concede that there was anyone who was a member of the CEPU who was obliged to turn up for work today who didn't.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr Trotter, what do you have to say about your members?

PN72

MR TROTTER: Yes, your Honour, we're in a similar situation. We were unaware of who was meant to be at work or not at work or who did not attend and as it's a 24 hour operation our members are working all shifts and in relation to shifts so we do not know what this application is about and who it's about. We know that some of our stewards had authorisation to leave work. We are unsure who the actual application is for. Again we're not able to represent people who are eligible to be members, we can only represent members and also we would need a list of those people who the company is alleging were not at work so we can cross-check them with our membership to ensure that they are members of the Australian Workers Union.

PN73

THE SENIOR DEPUTY PRESIDENT: Mr Ellis, what do you say?

PN74

MR ELLIS: Sir, we hold similar views to my friends Mr Edmonds and Mr Trotter. My instructions are, sir, that at any one time, three-quarters of our members on site will not be on the site for legitimate reasons, that is they're on the other shift, they're on whatever - appropriate leave and so on, so we find it hard to know what we're required to defend ourselves against today because we think the application is embarrassing and should fail for lack of particulars.

PN75

THE SENIOR DEPUTY PRESIDENT: Mr Daley, you're with Mr Trotter, are you?

PN76

MR DALEY: I am, sir.

PN77

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, what do you say about all of that?

PN78

MR CASPERSZ: Thank you, your Honour. Your Honour would see from what has been said by my friends, first, that apart from the 40-odd AMWU members who I was instructed have returned to work at the Kwinana facility, it still is in issue that other persons, members of the organisations are currently engaging in the industrial action that the company asserts is happening. That would be the first point.

PN79

The second point I would make is this, in relation to the names of the organisations, my friend Mr Edmonds observed that paragraph 2B and
paragraph 2C did not accurately reflect the names of the organisations. In my submission, if Mr Edmonds would be kind enough to inform the Commission of the exact name of his organisation and of the AMWU, then that would be a matter of amendment that can be made.

PN80

In relation to the next point - - -

PN81

THE SENIOR DEPUTY PRESIDENT: Just on that point, Mr Edmonds announced an appearance for the CEPU by its proper name, as I understand it, as did Mr Ellis for the AMWU.

PN82

MR CASPERSZ: Yes, thank you, your Honour. It's clear who the intended parties are supposed to be and that is a matter that can be clarified in the formal form of the order to the extent necessary.

PN83

Your Honour, in relation to the employees who are sought to be covered by the order, can I respond to Mr Edmonds' submissions like this. First, part of the evidence will be in respect of the discussion that was held between the company and the various representatives of the organisations. It will cover the issue or the particular matter of the effort that was made by the company to try and avoid disruption to the operations today. It is in issue, in other words it is not conceded by the company that anybody was authorised not to attend for work today because, in short, the efforts made by the company to avoid disruption did not come to fruition.

PN84

As far as any other persons are concerned, persons who did not attend for work today because they swapped shifts with other persons and persons who actually did attend for work today, can I make these submissions. Paragraph 4(a)(i) is directed at persons who engaged in the industrial action, so persons who actually attended for work today clearly are not bound by paragraph 4(a)(i).
Paragraph 4(a)(ii), in my submission, illustrates the very difficulty and one of the reasons why the application comes before the Commission insofar as persons who have actually tried to swap shifts in order to get out of working their normal roster today, actually illustrates the efforts made by people to avoid working today. The company's case would be, because of the direct or indirect involvement of the organisations, but to the extent that once again they have not engaged in industrial action because they were not obliged to attend for work today, then clearly the order will not apply to them in terms of that aspect of it.

PN85

I might add, your Honour, that my friends' submission concerning the obligation to attend for work is actually material to the matter raised by your Honour with me before the break, and that is where the motivation and the definition of industrial action is relevant and I'll come back to that in due course. In short, could I foreshadow that in my submission the definition is read in the context of being directed at persons who relevantly refuse to attend for work where they would otherwise be obliged to do so because that is their normal roster. In other words, if they've got another valid reason like sickness for not attending for their normal roster, then clearly the failure to attend is not regarded as industrial action for that reason. Otherwise, motivation or intention is, in my submission, irrelevant to the proper characterisation of the nature of the action undertaken. I can develop that submission further, your Honour, at the appropriate time.

PN86

If I can keep responding to the submissions made by my friends at this stage, each of my friends have requested a list of persons who did not attend for work today. Your Honour, in my submission, it's clear from what has been said, and in particular in response to the proposition put by your Honour to my friend
Mr Edmonds, that the unions do not concede that none of their employees were not involved in the refusal to attend for work today. In other words it is still an issue that members of the unions did attend for work today.

PN87

To the extent that any person is not a member of the union but is eligible to be a member of the union, that comes down, in my submission, to a question of enforcement of the order against that particular person at the end of the day if the order is made. At this stage there is no need nor any requirement, nor would it advance the matter any further for any list to be produced by the company and for time to be taken up, particularly given the nature of the application, for that type of process to be undertaken. At the end of the day, those details can be attended to, first in respect of persons who are eligible to be members but not actually members in the context of any enforcement of any orders that are made, and second, in the context of any members of the unions, clearly the unions are able to represent them, the unions have not disavowed their ability to represent members, the unions have not disavowed any involvement in the actual action that is taking place and therefore the matter should proceed on that basis.

PN88

THE SENIOR DEPUTY PRESIDENT: I would take some convincing that it was appropriate for me to make an order against a person who has no representation. In other words if there are employees who are not members of the organisations and have not been served and have the opportunity to be represented, I wouldn't be minded to make an order against such persons.

PN89

MR CASPERSZ: Your Honour, the company would be in the hands of the Commission as far as that is concerned, particularly in terms of paragraph 2(e)(i). That concern of the Commission, in my submission, could be met quite simply by an amendment to delete the phrase "or eligible to be members". So the order simply focuses on members of the three organisations. My instructions are that the company is completely content to go forward on that basis alone.

PN90

THE SENIOR DEPUTY PRESIDENT: Unless you want to say anything else at this stage, perhaps we should hear the evidence.

PN91

MR CASPERSZ: Thank you, your Honour. The first witness that I would call for the company is Ms Melina Quinlan.

PN92

THE SENIOR DEPUTY PRESIDENT: Is Melina Quinlan present?

PN93

MR CASPERSZ: She is, your Honour.

PN94

THE SENIOR DEPUTY PRESIDENT: Could she take the witness box, please?

<MELINA MARY QUINLAN, SWORN [6.03PM]
<EXAMINATION-IN-CHIEF BY MR CASPERSZ [6.04PM]

PN95

MR CASPERSZ: Your full name is Melina Quinlan?---That's correct.

PN96

You're employed by the applicant in the position of employee relations consultant and you are particularly employed, I understand, in relation to the Kwinana Alumina Refinery, which is one of the sites concerned in this application?---That's correct.

PN97

MR EDMONDS: Sorry, sir, if we could ask that the other witnesses be excluded from the room.

PN98

THE SENIOR DEPUTY PRESIDENT: Are there other witnesses present, Mr Caspersz?

PN99

MR CASPERSZ: I understand that there are on behalf of the company. If that is the case can I also ask that the same order be made in respect of any witnesses for the organisations. I'm not sure at this stage whether the organisations have got any, but the same order should be made.

PN100

MR EDMONDS: It's difficult to say with respect to the organisations at this point, sir. Certainly the CEPU doesn't have anyone present, sir. There are officials present from the AMWU and the AWU who may give evidence but it's hard to say whether those people will be giving evidence until we hear what the evidence of the applicant is.

PN101

THE SENIOR DEPUTY PRESIDENT: What I'll do is, I'll direct that any person present in the hearing room who currently intends to give evidence in these proceedings, should vacate the hearing room, other than those who are required to give instruction or who are currently giving evidence Yes, thank you,
Mr Caspersz.

PN102

MR CASPERSZ: Thanks, your Honour.

PN103

Ms Quinlan, can you just briefly describe for his Honour your role and your duties as human relations consultant, please?---Sure. I was employed in April last year as the employee relations consultant and essentially that means that you deal with a number of issues across the three unions across the site. I've currently been employed as the acting HR business partner at Kwinana refinery which has happened since January this year and so from that perspective I've been dealing with the Kwinana issues in relation to all the unions and all the matters that have come up and the general HR issues since January this year.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN104

Have you dealt with either or all of the three unions who are respondents to this application?---Yes. We have - we deal with all of the unions in terms of their issues and we have weekly meetings with the AWU and the AMWU at Kwinana.

PN105

THE SENIOR DEPUTY PRESIDENT: Sorry, Ms Quinlan, you're saying we. Could you just confine your answers to what you personally do or know.

PN106

MR CASPERSZ: Ms Quinlan, can you identify which persons you have personally dealt with on behalf of each of the three unions?---Okay. I meet with Andy Hacking, the convenor of the AWU and Richard Stabler, the convenor of the AMWU on a weekly basis and we deal with the issues that have come up around the site in relation to those unions.

PN107

That was the AWU and the AMWU, I think you mentioned. Have you had any dealings with anybody on behalf of the CEPU?---Generally, not on a regular basis but I have met with them on probably about three or four occasions in relation to issues.

PN108

Do you know what, if any, position those persons whom you identified hold in those unions?---The people I have named are the site convenors.

PN109

How many employees approximately work in the Kwinana site, to your knowledge?---At any - there's approximately 1000 employees across the refinery.

PN110

Can you describe for his Honour briefly to your knowledge what sort of breakdown there is in terms of what coverage each of the unions might have in respect to those 1000-odd employees?---Okay. We have approximately 445 AWU, 136 AMWU - - -

PN111

MR EDMONDS: Excuse me, objection to that question - sorry, to that answer - sorry, actually, no, I withdraw that.

PN112

THE WITNESS: And 65 CEPU.

PN113

MR CASPERSZ: What do you base your information on. You've just given numbers to the Commission, what do you base that on?---We have the numbers identified by each work group for payroll purposes, where we're obviously providing communication and details about employees so the numbers may vary depending on if there's any vacancies or whatever, but that's about the numbers. We identify them through the industrial agreements when they were originally certified last year.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN114

Can you identify those industrial agreements that you've just referred to for his Honour, please?---Yes, sure. There's the AWU WA Operations Certified Agreement 2005-7, the AMWU Mechanical Trades Agreement 2005-7 and the CEPU Electrical Trades Agreement 2005-8.

PN115

In respect of the remainder of the employees out of that 1000-odd, who are they covered by to your knowledge?---They're staff and the CFMEU.

PN116

Can you briefly describe what the shift times are at the operations?---Employees generally work at 10.3 or a 12 hour shift, starting at 7 am.

PN117

Are they 24 hour shifts - or 24 hour operations?---It's a 24 hour operation, yes.

PN118

Seven days per week?---Yes.

PN119

When did you first get knowledge that there might potentially be a refusal by employees to attend for work today?---I'll deal with that information to the unions separately, if you don't mind, because I've had detailed conversations throughout that.

PN120

Take the AWU first, perhaps?---Sure. As you're aware as background information, WA operations had written to each of the unions in relation to the day of protest - - -

PN121

I'll just halt you there, please. Can you describe for his Honour in more detail what the contents of that writing was?---The WA operations HR manager wrote to the head - - -

PN122

MR EDMONDS: Objection, hearsay. That's hearsay. Your Honour, has the applicant got copies of these correspondence to admit as evidence?

PN123

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Caspersz, do you have copies of correspondence there or are you intending to - - -

PN124

MR CASPERSZ: Could I perhaps first ask the witness what knowledge she personally has of this correspondence, please, your Honour, because it may be that I do have copies.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN126

MR CASPERSZ: I was asking you about this writing and you mentioned the HR manager, who is the HR manager to your knowledge?---Carl Phillips.

PN127

Do you have personal knowledge of this correspondence that you're referring to?
---Yes.

PN128

Are you able to remember the date of this correspondence?---The actual date it went out?

PN129

Was it recent or - - -?---Yes, it was about two weeks ago.

PN130

Are you able to remember to whom this correspondence was addressed?---The secretary of each of the - - -

PN131

Are you able to remember the substance of this correspondence?---Yes.

PN132

What was the substance?---The letter was proposing an offer to each of the unions that the company would agree to pay for the stewards and convenors of each of the unions to attend the national day of protest on the basis that all other employees remained at work on the day.

PN133

I'll come back to that. You were talking about the AWU then in particular. What was the context of that?---Okay. Our site discussions around this started not last Friday, the Friday before in that the letter that was sent from the WA operations HR manager to head office was discussed with each of the site convenors with each of the unions.

PN134

I'm sorry to interrupt here, you've mentioned our discussions. Can you be more precise, identify what discussions you were involved in?---I'd held discussions on not last Friday, the Friday before with the convenors of each of the unions at Kwinana and the context of those conversations were I presented them with a copy of the letter that had been sent from Carl Phillips to the secretaries and we had a discussion around this letter being sent and that was the offer to the unions and a general discussion about - it's about "You guys can go, everyone else has to stay in" and obviously we would get some response from the unions, each of the unions individually on that offer.

PN135

Can I just stick with the AWU for the time being then. Can you describe to the Commission what happened since that discussion as concerns the AWU?---Okay. We had the discussion on the Friday. We didn't actually - - -

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN136

THE SENIOR DEPUTY PRESIDENT: Who's we? Who do you mean by we? We had the discussion?---Sorry, your Honour, I had a discussion with the convenor on the Friday. When I say we I'm referring to the management at Kwinana. We generally meet, the production manager and myself. I hadn't heard anything else about the response from the AWU and the production manager and I have a weekly meeting with the AWU convenor on the Friday. We had that meeting. We also met later for another meeting in relation to a dispute and at the end of that meeting the AWU convenor indicted to me that, "There's going to be a lot of disruption on 28 June as a lot of the AWU guys will be going to the protest."

PN137

MR CASPERSZ: Can I just clarify with you once again, what was the date of that discussion you just related?---Last Friday.

PN138

It was last Friday. What did you understand that comment by the convenor to mean?---That the majority of the guys will be attending the rally and therefore that's going to disrupt the plant. Obviously if you don't have enough people on the day.

PN139

Did you have knowledge personally of what the purpose of this rally was?---I was under of the view it was the National Day of Protest.

PN140

The National Day of Protest against what, can you clarify that?---The National Day of Action in relation to the IR legislation.

PN141

What happened following that concerning the AWU?---Okay. When we had that discussion, and it was indicated that people were not going to be attending on the day. We've obviously put in place provisions in the refineries so that the staff can actually be available on the day. We - I had subsequent conversations with Andy on Monday which was - what's the date - the 26th.

PN142

Andy being the AWU - - - ?---Andy Hacking, yes, and I asked him specifically whether the provisions of the certified agreement would require the area process specialist and the fire crews to be left on site at all times, whether those provisions of the agreement, I think it's clause 4.4, of the 2005 agreement, whether they were going to be complied with on the 28th and Andy indicated that yes, the APS role would be left in and the fire crew would be available on the day.

PN143

What happened following that as concerns the AWU?---Okay, so we had identified that that was going - - -

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN144

Can I just - I want to confine your evidence to yourself personally and your involvement?---I had discussions obviously with the production manager that this information had been confirmed. The production manager or the acting production manager at the moment, Eddie Masera, and myself met again with Andy on Tuesday the 27th. Just to reiterate those conversations to say - to ask whether that was actually the case, that the APS role and the fire crew would be available and Andy indicated that was the case. Eddie Masera, the acting production manager, said to Andy that we've had significant issues in the plant of recent days and could we have the process controllers on the day left in as well because there was questions about their production and the flow in the refinery and Andy indicated that that wasn't the case. The 28th is actually a day which means extra shifts are on on that day so there was an extra number of people that were due to be at work on the Wednesday.

PN145

What happened after that?---Andy indicated that he'd get back to us as to whether the process controllers could be left in on the day and we'd had some other conversations around - when eh actually didn't necessarily agree, I said to him, "So are you going to risk the plant integrity on the basis of taking industrial action?" and he didn't indicate that he thought that was the case. So our concern was obviously that the plant wasn't going to run well because of the production of the last few days and that we needed some extra support on the day, that we couldn't afford to have the whole of the AWU crew out.

PN146

Did you have any further discussions with Andy about this on the 27th?---He - I didn't personally, no.

PN147

What was your next involvement with this matter?---Actually, sorry, I retract that. I did have a conversation with Andy. I asked him if the AWU employees were going to be coming to work in the morning as the AMWU employees were and he said it's no secret, there's a meeting at Pinjarra at 8 am and no, they wouldn't be attending in the morning of the 28th.

PN148

Did you have any further discussions with Andy on the 27th, that was yesterday?
---No.

PN149

To your knowledge did that meeting take place at Pinjarra this morning?---I'm not aware.

PN150

What is your knowledge of events that occurred early today then?---I - when I got to work, actually -yes. When I got to work this morning obviously I rang around. We have four major operation centres in the refinery and I rang around to each of the managers to ask who had turned up and who was at work. Each of them had indicated that previously the AWU, the only person that had attended for work was the APS as required under the certified agreement.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN151

Out of the approximately 435-odd AWU employees?---There was approximately 85 rostered on today.

PN152

And your evidence - - -

PN153

THE SENIOR DEPUTY PRESIDENT: Sorry, 85 AWU members?---Yes.

PN154

Sorry, I just need to clarify. 85 AWU members or 85 employees, some of whom would be entitled or eligible to be members of the AWU and others who are not?
---85 AWU members rostered on today, your Honour.

PN155

MR CASPERSZ: That's from your knowledge of payroll records?---No, from discussions with the managers in each of the op centres.

PN156

Is that 85 employed for the day shift, can I clarify that?---Yes, for the day shift or today.

PN157

How many more employees would you expect for the next shift? When would that shift have finished?---It depends. There's - some employees are working on 10.3, some are on 12. Some guys will finish at 5 and 5 point something, and the others will finish at 7 pm.

PN158

That's Perth time this afternoon?---Yes.

PN159

Have you had any indication that anyone is going to start on those shifts this afternoon?---You mean the night shift tonight?

PN160

Yes?---Yes. I spoke to Andy at about 2 o'clock today and he indicated that the night shift guys will be at work.

PN161

All right, but has anybody, apart from that one person turned up for work for the day shift?---Not from the AWU members, no. Actually, I correct that. Four people who were covering for the fire crew.

PN162

Can you then go back and just clarify the position for the Commission as far as the CEPU is concerned?---Okay. We hadn't had - sorry, I take that back. I hadn't had any discussions with the CEPU convenor, Jim Balfour, about what was going to happen today. I understand the maintenance manager, Dominic Bonney, had had some discussions with him and that they had - - -

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN163

MR EDMOND: Objection. It's hearsay, sir.

PN164

THE SENIOR DEPUTY PRESIDENT: Perhaps you can just tell us what you know yourself and not what you've been told by anyone else.

PN165

MR CASPERSZ: Have you had any discussions with anybody from the CEPU yourself?---No.

PN166

Do you have any knowledge as to whether any CEPU - I withdraw that. Any knowledge as to whether any CEPU members turned up or did not turn up for work this morning?---I have been advised by the maintenance manager that five out of - - -

PN167

MR EDMOND: That's still hearsay, sir. The maintenance manager should be called to give that evidence.

PN168

MR CASPERSZ: It's a matter of weight, your Honour.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, I'll make - - -

PN170

MR CASPERSZ: She can give evidence about the position she holds. She's entitled to take advice, even on matters like this.

PN171

THE SENIOR DEPUTY PRESIDENT: I'll allow the question.

PN172

MR CASPERSZ: Thank you, your Honour?---Sorry, I've been advised by the maintenance manager that approximately five out of 35 CEPU members have attended for work today.

PN173

As far as the AMWU is concerned what knowledge do you have of that union and its involvement?---Okay. We - sorry - - -

PN174

When you say we - - - ?---I and the acting production manager had a discussion with the AMWU on Friday. We didn't talk specifically around whether the guys would be attending, but we indicated - - -

PN175

MR EDMOND: Could I ask the witness to identify who she spoke with in the AMWU?

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN176

THE SENIOR DEPUTY PRESIDENT: Yes?---Richard Stabler.

PN177

MR CASPERSZ: Yes, continue please?---And we talked about the AMWU response, letter of response to the letter sent by WA operations in relation to the offer covering for pay of stewards for attendance at the National Day of Protest. We - I indicated that the company will consider it industrial action if none of the employees attend on the day and that, as the AMWU had indicated in their letter, that we expected employees to attend work because we don't expect them to breach their contract of employment, and we - that was those discussions. Richard Stabler, the site convenor, then contacted me on Monday morning and indicated that the majority, if not all, the AMWU employees at Kwinana would not be attending for work on the 28th and I asked why and he stated that the employees feel very strongly about the IR legislation and they wanted to take the opportunity to support the protest.

PN178

And in the capacity of your position that you have described, do you have any knowledge as to whether any AMWU members turned up for work this morning?
---As far as I'm aware from talking again to the maintenance manager who provides me with the information about who's on site, I am aware that all the employees rostered on today from the AMWU did attend work. The reason behind that is that Richard had requested an information meeting for the members because currently at the moment we are discussing the implementation of the certificate agreement which required a vote from the employees to support the latest offer from the company on the career path structure. So the request was made for this information meeting to be held this morning at 9.30, so the emphasis around that was the employees were going to attend for work at their ordinary time of 7 am. They would have an information meeting at 9.30 and then they would leave at 10 to attend the rally.

PN179

To your knowledge, is that what occurred?---Yes.

PN180

Out of how many AMWU employees, once again?---Approximately 35 on site today.

PN181

In your capacity are you aware whether any of those or any of the AWU or CEPU employees were authorised to not attend for work, or to leave the work place to attend the rally?---I have sent out specific information to the managers and supervisors and group leaders that we wouldn't be authorising single day annual leave absences off the roster for today.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN182

To your knowledge, has any job stewards or delegates been authorised to not attend for work in order to attend the rally?---No, they haven't.

PN183

Just finally, you gave some evidence that you started last year. Were you employed by the company in November 2005?---April 2005.

PN184

So you were employed with the company as at November 2005 last year?---Yes.

PN185

Do you have any knowledge of any industrial action taken in relation to any protest against industrial laws at that time by any of the unions and their members?

PN186

MR EDMOND: Your Honour, might I ask, I can't quite see the relevance of this line of questioning. There's an application before you in respect of industrial action, alleged industrial action that's alleged to be happening and I'm not sure of any previous event or any previous alleged industrial action might be in relation to this application.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes, what's the relevance, Mr Caspersz?

PN188

MR CASPERSZ: It will be relevant to the submissions that I'll make in relation to the length of the order that has been sought, your Honour. The fact that there has been industrial action in the past at the end of last year in regard to the same issue, it's taken place again today and the potential for it to occur in the future, which will underpin the submissions in regard to the length of the order sought.

PN189

THE SENIOR DEPUTY PRESIDENT: But your claim is in relation to industrial action happening, not threatened or probable.

PN190

MR CASPERSZ: The submission will also be - I'm not sure if it's reflected in the order, your Honour, but the submission will also be that industrial action is being organised and flowing from that it's been organised for the future.

PN191

THE SENIOR DEPUTY PRESIDENT: Well, it's a bit difficult, I think, establishing that there is some basis for an ongoing order or a lengthy order trying to draw a nexus between what happened last year and this year, but go on, I'll allow the question, but I think it's a question of what weight I'll give it.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN192

MR CASPERSZ: Thank you, your Honour.

PN193

Are you aware of any industrial action which took place last November in relation to the protest action?---In November 2005 I was at the Pinjarra refinery and I was actually acting in the capacity of HR business partner at the time and I am aware that the - any employees to remain on site in the November rally were the CFMEU employees.

PN194

Are you aware whether employees were members of any three respondents here today took industrial action at that stage in protest?---As far as I'm aware none of the employees eligible to be members of the unions here today attended for work on that day.

PN195

Excuse me one minute, please.

PN196

THE SENIOR DEPUTY PRESIDENT: Sorry, is that all the questions?

PN197

MR CASPERSZ: Could your Honour bear with me one minute, please, your Honour?

PN198

THE SENIOR DEPUTY PRESIDENT: Yes.

PN199

MR CASPERSZ: Thank you, your Honour. No further questions.

**** MELINA MARY QUINLAN XN MR CASPERSZ
PN200

THE SENIOR DEPUTY PRESIDENT: Mr Edmond, any cross-examination?

PN201

MR EDMOND: Sir, as I say, I only received a copy of this application at approximately five minutes to three this afternoon, so I wonder if it's possible, sir, to have a preliminary cross-examination of the witness at this point, but to reserve the right to recall the witness at some point in the future when it's possible to obtain further instructions?

PN202

THE SENIOR DEPUTY PRESIDENT: Yes.

<CROSS-EXAMINATION BY MR EDMOND [6.29PM]

PN203

MR EDMOND: Now, am I to understand you went through the list of persons employed at the site you're currently at. You said there was 445 AWU, 136 AMWU and 65 CEPU, is that correct?---Approximately. I reviewed those numbers in probably January.

PN204

Is it your evidence that those are the numbers of persons who are actually members of those unions, is it?---I don't know if they're listed as in the appropriate work groups, so they're listed as electrical, mechanical or AWU.

PN205

Okay, but you've got no idea whether they're members of the union though?---No.

PN206

So it's possible that all those persons are not members of the union?---It's possible.

PN207

Yes, all right. So really what you're saying is this 445 persons engaged in classifications which would be eligible to join the AWU, 136 engaged in classifications that would make them eligible to join the AMWU and 65 engaged in classifications that would make them eligible to join the CEPU?---Yes.

PN208

How many persons would ordinarily be working in the day shift today?---I have been informed by the maintenance manager that it's approximately 85 that are due on shift today.

PN209

Across the board, there'll be 85 persons across the board?---Electrical?

PN210

No, no, for all the classifications?---35 plus 35 plus about 85.

PN211

That's 155 persons would ordinarily be working day shift today, okay. So of the 1000 or so persons engaged on the site there would only be 155 who were supposed to be at work today, is that correct?---I can say categorically with those numbers, that's what I have been told by a certain operational - but I wouldn't like to say that that is the total. It's likely to go up rather than down.

**** MELINA MARY QUINLAN XXN MR EDMOND
PN212

Now, is it your understanding that Carl Phillips wrote to the unions, is that correct?---That's correct.

PN213

And you said it was approximately two weeks ago, is that also correct? And that those letters basically indicated the company was prepared to agree to stewards and convenors from those sites, or from the Kwinana site attending the rally today?---Yes, without loss of pay on the basis the others remained.

PN214

Now, was Carl Phillips writing on behalf of all the sites, or just the Kwinana site?
---All the sites.

PN215

How many stewards and convenors would there be from Kwinana all up, across all three units?---You mean including the CFMEU or just leave them out? Leave them out?

PN216

All the stewards and convenors?---Approximately 50.

PN217

50, and how many of those persons would have been rostered on to work today?
---I couldn't tell you.

PN218

So you've seen a copy of that letter that was sent to the stewards and convenors, sorry, a copy of the letter that was sent to the unions and subsequently shown to the stewards and convenors?---Yes. I showed the same copy of the letter to the stewards.

PN219

Do you have a copy of that letter available today?---We probably do but I don't have it with me.

PN220

Are you aware of any responses from the unions, from all three unions going to Mr Phillips in relation to that offer?---Yes. I'm aware of a response from the CEPU and the AMWU.

PN221

What do those responses say?---The CEPU response was on the basis, it was talking about the offer that had been put to Kwinana CEPU last year in relation to re-roster for the day and the - but it didn't actually accept the offer that had been put forward by Mr Phillips and the AMWU letter also didn't accept the offer that was put forward.

PN222

Do you have copies of the answers available to tender as evidence today?---I don't personally, no.

**** MELINA MARY QUINLAN XXN MR EDMOND
PN223

Have you seen those responses?---Yes.

PN224

Now, you said that when you got to work today you rang around to see how many people had attended and you said the APS attended. What's the APS?---Area Process Specialists.

PN225

How many of them are there?---There's one in each operation centre for operation centre 1 to 4.

PN226

So how many of them attended today?---Four.

PN227

How many CEPU members attended today?---As I indicated I'm advised by Dominic, the maintenance manager, that five out of 35.

PN228

So there would ordinarily be - sorry. You said that five out of 35 CEPU members attended for work today on your evidence. Do you mean that five out of 35 persons eligible for membership of the CEPU attended for work today?---Well, I don't know if each individual person is a member.

PN229

So to correct your evidence, you would say, well, five persons who are eligible to join the CEPU out of 35 that are eligible to be members of the CEPU attended work today?---That's correct.

PN230

You said that all the employees who were eligible to be members of the AMWU who were rostered on attended for work today?---Yes, as I understand it.

PN231

You said that industrial action occurred in November of 2005 at the Pinjarra refinery. Are you aware of any industrial action occurring at Kwinana on that day?---I can't say. I wasn't there.

PN232

And you said none of the employers who were members of the unions attended for work that day at Pinjarra?---That's correct.

PN233

Do you mean, when you say that, that none of the employees who were eligible for membership of the unions attended for work that day, okay. What's your understanding with respect to the present situation? Is it your understanding that industrial action is still occurring?---I understand that the AMWU employees have - or the employees eligible to be members of the AMWU have attended for work. The CEPU have not and the AWU have not.

**** MELINA MARY QUINLAN XXN MR EDMOND
PN234

What's your understanding with respect to the situation at either 5 o'clock or 7 o'clock tonight?---I won't know that till that comes.

PN235

Have you been advised - - - ?---I have been advised - - -

PN236

With respect to night shift?---I have been advised by the AWU that the employees due in this evening will be at work.

PN237

Have you reason to believe that those employees eligible for membership of the CEPU or eligible for memberships of the AMWU won't be at work this afternoon? Okay. I've got no more questions for this witness, sir.

PN238

THE SENIOR DEPUTY PRESIDENT: Mr Trotter, do you have any questions?

PN239

MR TROTTER: Yes, sir. I'd like to have the ability to recall Ms Quinlan back. She's quoted at length the conversation she's had with the site convenor for the AWU of Mr Andy Hacking. I have not had an opportunity to discuss what conversations have or have not taken place between Ms Quinlan and Mr Hacking, so I'm not sure if they are - I'm taking it on face value that they may be correct, but I'd need to seek discussions with Mr Hacking on that.

PN240

THE SENIOR DEPUTY PRESIDENT: Is Mr Hacking present in court?

PN241

MR TROTTER: No, sir, he's not. He's somewhere between here and Rockingham and Western Australia, so I don't know where he is to be honest.

PN242

THE SENIOR DEPUTY PRESIDENT: You can have leave to recall Ms Quinlan, if needs be in due course when you've got further instructions from Mr Hacking.

<CROSS-EXAMINATION BY MR TROTTER [6.38PM]

PN243

MR TROTTER: The only question I have to ask Ms Quinlan is, the APS, as you state, that were left behind, that were members that were eligible, could be eligible to be the Australian Workers' Union, how many of those people were left behind?
---Four.

PN244

Out of the 85?---Four was required today and four were provided.

PN245

How many for the emergency services?---Four.

**** MELINA MARY QUINLAN XXN MR TROTTER
PN246

Yes, thank you. Sir, I'll just limit my questions to that at the moment because I need to seek discussions with Mr Hacking.

PN247

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr Ellis, do you have any questions?

PN248

MR ELLIS: Sir, I too reserve the right to call Ms Quinlan because we are in the same position as the AMWU, so the AWU and the CEPU, we were served with this application quite late in the afternoon and we haven't had a proper opportunity to talk to our relevant respective organisers. Sir, I just would ask the witness one question.

<CROSS-EXAMINATION BY MR ELLIS [6.40PM]

PN249

MR ELLIS: What time did you come up to the hearing today, Ms Quinlan?---To the Commission?

PN250

Yes, what time did you leave the site?---Approximately 1 o'clock.

PN251

And you haven't been back since?---No.

PN252

Have you spoken to anybody by telephone or otherwise since you left the work site at 1 o'clock this afternoon?---No. I had a message from Richard Stabler on my phone, that was all.

PN253

You had no active conversations with anybody since 1 o'clock?---No.

PN254

So, is it your evidence that - you cannot give evidence to the Commission today that industrial action is happening on the site as we speak?---At the current moment?

PN255

Yes?---Yes.

PN256

You can't give evidence that there is any industrial action occurring as we speak?
---I'm taking it on face value that Mr Stabler telling me that they are back.

PN257

You do not know that they're actually back - - -

PN258

MR CASPERSZ: I'm not sure whether my friend is putting it to the witness that industrial action is not taking place, your Honour, in which case if he wants to put the proposition, he should.

**** MELINA MARY QUINLAN XXN MR ELLIS
PN259

MR ELLIS: The burden is not us to prove or show the Commission that industrial action is happening. It's the applicant's application. The applicant is required to adduce evidence that there is industrial action happening and I have heard nothing from this witness today to say that she or anyone else is aware that as we speak there is industrial action happening.

PN260

MR CASPERSZ: Can I respond to that, your Honour?

PN261

THE SENIOR DEPUTY PRESIDENT: Well, just before you do, Mr Ellis, the witness has given evidence about people being absent from work. At the end of the day, whether or not it amounts to industrial action will be a question for me to determine and not for her, I don't think.

PN262

MR CASPERSZ: Thank you, sir, I appreciate that. But nonetheless, sir, I reiterate my view that it's the burden on the applicant to admit evidence that there is alleged industrial action happening and I can't say that I've heard much of that.

PN263

THE SENIOR DEPUTY PRESIDENT: That's a matter for submissions, I think.

PN264

MR CASPERSZ: Thank you, sir.

PN265

THE SENIOR DEPUTY PRESIDENT: Did you have any other questions for Ms Quinlan?

PN266

MR ELLIS: No, sir, other than I - as I said earlier, we reserve the right to recall Ms Quinlan if we need to.

PN267

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Caspersz, any re-examination?

PN268

MR CASPERSZ: Thank you, your Honour. No re-examination. Thank you, Ms Quinlan.

PN269

THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, Ms Quinlan. Ms Quinlan, you may be required for further cross-examination in due course when the representatives of the CEPU, the AWU and the AMWU have got further instructions in relation to the evidence you've given. So I'd ask that you not - I won't dismiss you at this stage or release you at this stage, but you
can - - - ?---Yes, your Honour.

**** MELINA MARY QUINLAN XXN MR ELLIS
PN270

Thank you.

<THE WITNESS WITHDREW [6.42PM]

PN271

MR CASPERSZ: The applicant calls Ms Nerida Michelle Aitken, who I believe is outside the court. Someone is just trying to get her at the moment, your Honour.

PN272

MR EDMOND: Sir, before we go any further, sir, I wonder how we intend to proceed with this matter further, sir? Is it necessary for us to go through all of the witness evidence at this stage, sir? Certainly I'd say on behalf of the CEPU, if we were - in order to obtain further instructions, we don't think we'll be able to obtain it today. If the matter is going to roll over into another day, sir, maybe now might be a better time to do it rather than later on in the evening.

PN273

THE SENIOR DEPUTY PRESIDENT: You might as well hear what the rest of the case is against you so that you can get full instructions. After that,
Mr Edmond, I think.

PN274

MR EDMOND: Sure, okay, sir.

PN275

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Caspersz. Ms Aitken, is it?

PN276

MR CASPERSZ: Ms Aitken, A-i-t-k-e-n.

PN277

THE SENIOR DEPUTY PRESIDENT: Yes, is Ms Aitken available?

PN278

MR CASPERSZ: Yes, she is. Thank you, your Honour.

<NERIDA MICHELLE AITKEN, SWORN [6.44PM]
<EXAMINATION-IN-CHIEF BY MR CASPERSZ

PN279

MR CASPERSZ: Your full name is Nerida Michelle Aitken?---That's correct.

PN280

You hold the position of human resources business partner?---That's correct.

PN281

Employed by the applicant?---That's correct.

PN282

At which site are you employed at, Ms Aitken?---I'm employed at Wagerup.

PN283

Can you describe briefly for the Commission what your role and duties are as a human resource business partner?---If I can. As a human resources business partner it is my responsibility to oversee all aspects of human resource management and industrial relations management on site.

PN284

In that role do you take advice form other persons engaged or employed by the applicant to advise you on things like that?---In the first instance, no. It is my responsibility to be the primary giver of advice to management on site.

PN285

I see. Have you any dealings with any of the respondent unions to this application?---It is correct, yes. It's part of my role, if you like, to be a liaison between management and the relevant unions with respect to management of industrial relations on site, yes.

PN286

Can you identify who in particular you have dealt with on behalf of each of the three organisations here today?---Yes, I can. In relation to the AWU I have contact with Stephen Price who was the Wagerup convenor. I also have
contact - deal with Barry Matthews who is, if you like, his deputy. In relation to the AMWU I have contact with Percy Hudida who is the Wagerup convenor, together with - on different occasions it might be one of his different stewards, but it might be Ritchie Ray.

PN287

THE SENIOR DEPUTY PRESIDENT: So firstly who was it, Percy?---Sorry, your Honour. Percy Hadida.

PN288

Thank you?---In relation to the CEPU I have contact with the convenor Laurie Cross, and also his deputy, Dave Kittrich.

PN289

Can you describe broadly speaking how many employees are engaged at the site and on the basis of your understanding, what breakdown there is in terms of coverage of each of the respondent organisations over those employees?---Okay. To the best of my knowledge we have approximately 680, 690 full time equivalents on site. Of that it includes staff and contractors. In relation to each of the respective unions, broadly speaking, the AWU would account for the majority of that workforce and then we would have - which is approximately between 300 and 400. In the case of the AMWU we would have approximately 125, if you include the apprentices. In relation to the CEPU I couldn't give you a total figure but I could tell you how many were due to be at work today.

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN290

I'm sorry, in relation to the CEPU?---Yes, I can't tell you the total figures that would - that we have on site but I can tell you how many were rostered to be at work today.

PN291

How many were rostered to be at work today?---Twenty five.

PN292

How many shifts are worked at the site, five shifts? And what are the times of those shifts?---Sorry, it's a five panel roster. So we have two shifts, so we have 7 am to 7 pm, 7 pm to 7 am.

PN293

I see, and is that seven days a week?---That's correct, 24 hours a day.

PN294

And how many employees were rostered to work on that shift at 7 am today?
---Okay. In the case of AWU, it's about 142. In the case of the AMWU it's 50 and in the case of the CEPU, like I mentioned before, it's 25.

PN295

Have you had discussions with persons concerning what has happened today prior to it occurring today?---Yes, I have.

PN296

When did those discussions take place and with whom did he have them?---In relation to the unions - - -

PN297

Could we start with the AWU perhaps?---The AWU, it was discussed with - I should explain what a site meeting is. We had a site meeting with the AWU on .... this is a regular meeting we have with the convenor and the deputy convenor.

PN298

When you say we, who do you mean?---Sorry. Myself and Julio Costa, Julio Costa is the production manager at Wagerup and it is his role as the production manager to be involved in those site meetings together with myself and it's a structure we duplicate for each of the unions, yes, the AWU, the AMWU and the CEPU.

PN299

Let's start with the AWU then. When did that discussion take place?---That occurred on 16 June, Friday the 16th.

PN300

That's Friday before last?---That's correct.

PN301

What was the substance of that discussion?---It was a meeting that was called for us to give a copy of the letter that was sent by Mr Phillips daily to Barry Matthews. Steve Price wasn't in attendance at that meeting. It was to go through that letter and to ascertain from the AWU what it's position was in relation to the National Day of Action.

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN302

What was the AWUs response to what was in that letter?---Mr Matthews said to me that he wasn't aware of what exactly was going on and that he hadn't received any formal details from the AWU office.

PN303

To your knowledge, since then has the AWU ever undertaken not to organise or be involved in industrial action today?---No.

PN304

To your knowledge has anybody been authorised by the company to take time off today to attend a rally or protest action against new industrial law?---Not to my knowledge.

PN305

What happened subsequent to that meeting as concerned the AWU?---Subsequent to that I didn't receive any further contact from Mr Matthews. I didn't have any further discussions with either him or Stephen Price in relation to the Day of Action.

PN306

Have you been advised by anybody else about any involvement of the AWU in relation to events occurring today?---Yes, I have.

PN307

Who is that person?---Mr Costa, the production manager.

PN308

Who attended the meeting with you?---Yes.

PN309

What have you been advised by Mr Costa?---Mr Costa advised me that at approximately a quarter to 3 yesterday he received a phone call from Stephen Price - - -

PN310

MR EDMOND: We're hearing further hearsay evidence. The witness cannot tell the Commission, the conversation he had with a third party or a fourth party. We would prefer if the witness could give evidence from her own knowledge

PN311

MR CASPERSZ: It is hearsay evidence, your Honour. In the context of things, this person has given evidence of the position, who Mr Costa is. It's a matter of weight for the Commission and in the circumstances of these applications, it's simply practical to get everybody up to the Commission in the time available. It will be a matter of weight for the Commission as to what to do with the evidence subject to whatever evidence is led by the unions.

PN312

MR EDMOND: Sir, I might and that we had exactly the same problem.

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN313

THE SENIOR DEPUTY PRESIDENT: Sorry, who's that?

PN314

MR EDMOND: Mr Ellis said that we - the respondent unions had exactly the same problem as the applicant in respect of getting everybody together in about five minutes time, sir.

PN315

THE SENIOR DEPUTY PRESIDENT: Well, again, I'll allow the evidence. It's a question of weight at the end of the day and the same will apply to the union. Yes?

PN316

MR CASPERSZ: Thank you, your Honour.

PN317

Can I just go back to the question, you were told something by Mr Costa about yesterday afternoon. Can you just clarify?---Yes. Mr Costa rang me at about a quarter to three yesterday afternoon and informed me he'd just received a phone call from Stephen Price. He informed me that Mr Price had asked him whether he had spoken to Carl Phillips, Mr Phillips, the HR manager, in relation to what was the strategy for tomorrow, meaning 28 June. Julio, Mr Costa also told me that he said to Mr Price that he hadn't spoken to Carl Phillips but he had spoken to myself and that he'd spoken to the rest of the management team about how to minimise the impact and continuing disruptions on production. Mr Costa then advised me that he asked Mr Price as to what was going to be happening for tomorrow, being today, and whether he could give him any information. Mr Costa told me that Mr Price's response was that he didn't know what the guys were doing, but Mr Costa should probably arrange for coverage between seven to seven. Sorry, I should also add, he also then said that the APSs, which are the area process specialists and the fire crews would be left in.

PN318

Now before we come to this morning, is there anything else which happened yesterday in relation to this, concerning the AWU?---There was two incidents. The first incident was I became aware at approximately 3 o'clock, 3.10 yesterday that an employee in one of the op centres, op centre 2, who was a member of the AWU advised one of the supervisors there that he had been directed to attend, or he or she had been directed to attend a rally at Pinjarra today, meaning 28 June.

PN319

And you said there were two incidents. What - - - ?---Sorry. The second incident was I received a further phone call from Mr Costa at ten to 8 last night. He advised me that he had just received a phone call from Mr Price. Mr Price
had - and Julio - Mr Cost told me that Mr Price had told him that the guys were going to be attending a rally at 8 am tomorrow at Pinjarra and that they would make a determination at that point in time at the meeting whether they would be returning to work.

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN320

Can I come to today then. Do you know anything about any rally being held at Pinjarra?---Yes, I do.

PN321

Can you describe to the Commission what your knowledge is of that?---My knowledge is I became aware on Monday that there were posters in the crib rooms, in some of the op centres that are used by AMWU members that were advertising the event.

PN322

What event are you talking about?---A rally at Pinjarra and the rally that was in Perth.

PN323

What happened this morning as concerns that rally, do you have any knowledge about that?---I am aware that we did not have anybody attend for work from AWU - with the exception of the APSs, no one from the AWU attended and that with the exception of three CEPU electricians, others attended, the CEPU attended. I am aware that in the case of one AWU member who is employed
by - in our training department, which actually reports to me, that the employee concerned attended work and then received a phone call whereupon he advised Tim Wayne, who reports to me, that he was going to be attending the rally in Pinjarra and would be then deciding whether he goes on to the rally in Perth.

PN324

Can I just clarify, in relation to the number of AWU employees who are supposed to work on the roster, starting at 7 o'clock this morning, on your knowledge, how many of those employees reported for and stayed at work?---So, there was 142. I understand that none of them attended except for the APS in five of rhe op centres. So to my k knowledge only five attended for work.

PN325

Out of the number of CEPU persons, how many?---We put it at 25 attended for work. My understanding, and I've been informed by the manager from the relevant areas is that we only had three attend from op centre 7.

PN326

As far as the AMWU persons are concerned, how many?---We had none in attendance.

PN327

How many were supposed to on the roster?---Approximately 50.

PN328

Approximately 50. You've described for his Honour discussion which you've had concerning the AWU prior to today. Did you have any discussions concerning the CEPU?---We had a - on 16 June, following the meeting with the AWU, I then attended a meeting, a site meeting with Frank Whitwa who is the CEPU manager, if you like, he's the relevant mine manager that liaises with the CEPU, together with myself, Laurie Cross - - -

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN329

MR EDMOND: Sorry, can I just clarify, is she saying that this person liaises with the union or is she saying this person is the line manager of the electrical employees on the site?

PN330

THE SENIOR DEPUTY PRESIDENT: Sorry, you - - - ?---I'll clarify.

PN331

Are you raising an objection? Yes, go on, clarify your answer?

PN332

MR CASPERSZ: Perhaps my friend can clarify that in cross-examination, your Honour, or if it helps, I'll ask the witness perhaps to be more precise?
---Okay.

PN333

Who is this person?---All right. What we do is on the site we have a structure whereby - at Wagerup - that there is a line manager that is assigned to be, if you like, the point of contact or have the main responsibility of having discussions with a particular union together with myself.

PN334

Is that line manager a representative of management?---That's correct. So in the case of the AWU, it's Mr Costa. In the case of the AMWU it's Mr Alex Bejerno and in the case of the CEPU it's Mr .... and that aligns with the responsibilities that they respectively have.

PN335

Thank you. So who did you and this person meet with from the CEPU on Friday?---Mr Whitwa and I met with Mr Laurie Cross and - - -

PN336

What was the substance of that?---And Mr Kittrich.

PN337

Thank you, and what was the substance of that discussion?---The substance of the discussion was to go through the letter, given a copy of the letter that was sent by Mr Muirey the previous day in relation to - from Mr Phillips again to - in relation to the National Day of Action.

PN338

Are you aware whether the CEPU accepted the company's proposal in that letter?
---No.

PN339

Okay. Are you aware whether any shop steward or job delegate of the CEPU was authorised not to attend work today by the company? Were there any further discussions with the CEPU since that time and the events which took place today?---Involving myself?

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN340

Yes. Have you been advised of anything further by the persons who report to you on things like this about anything to do with the CEPU and the events today?
---I'm - I was advised by Mr Whitwa yesterday that Mr Cross was having discussions with him about seeking agreement to have an arrangement put in place where they be allowed to re-roster which means so - that those who would otherwise be required to attend to work on a roster would not be - they'd be able to shift it to another day.

PN341

Do you know whether any such agreement was reached?---Yes, I do, and no, it wasn't.

PN342

Finally in relation to the AMWU, did you have any discussions with the AMWU concerning this matter?---Yes, I did. Again we had a site meeting with the AMWU .... Mr Bejerno, myself and .... McLeod who is an ER consultant at Wagerup in my office on the Monday which was 19 June.

PN343

What was the substance of that discussion?---It replicated the substance of the other two meetings whereas I gave him a copy of the AMWU and the CEPU, so I gave him a copy of the letter that was sent to Mr Tracey and asked him what was the AMWUs position with respect to the National Day of Action.

PN344

And what was it?---He said he didn't know.

PN345

And do you know whether the AMWU subsequently agreed to whatever the company offered in that letter? Do you mean you don't know or they didn't agree?---I don't know. I don't know.

PN346

Do you know whether the company has authorised any AMWU person not to attend work today to attend a protest rally?

PN347

THE SENIOR DEPUTY PRESIDENT: Sorry, what was your answer to that question?---Not to my knowledge, no. I don't know whether it was - to my knowledge I don't know if anybody was authorised from the AMWU.

PN348

MR CASPERSZ: Now, were you employed by the company as at November 2005, last year?---No. I commenced employment with the company in May 2005.

PN349

Were you employed as at 2005?---Yes.

**** NERIDA MICHELLE AITKEN XN MR CASPERSZ
PN350

As at November 2005?---Sorry, yes, I was, sorry.

PN351

Which site were you employed at?---Wagerup.

PN352

Was there any industrial action taking place to your knowledge at that site at that time?---Yes, there was.

PN353

And do you know what the reason for that industrial was?---We had different instances of industrial action occurring in November 2005.

PN354

Any industrial action taken in relation to protest - - - ?---Yes, we did, we had industrial action.

PN355

That industrial action in - I'll withdraw that. Did that industrial action involve any persons who were covered by either of the three respondents here today?---It involved persons covered by all three of the unions.

PN356

Your Honour, if you could bear with me for one minute, please.

PN357

THE SENIOR DEPUTY PRESIDENT: Yes.

PN358

MR CASPERSZ: Thank you, your Honour. No further questions of this witness.

PN359

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Caspersz. Mr Edmond?

PN360

MR EDMOND: Yes, sir, if I could have the same arrangement with this witness as with the previous witness as well, sir, with respect to being able to recall the witness when we obtained further instructions.

PN361

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted to recall the witness, if necessary.

PN362

MR EDMOND: Thank you.

<CROSS-EXAMINATION BY MR EDMOND [7.03PM]

PN363

MR EDMOND: Now, Ms Aitken, you have been employed with Alcoa since May 2005, is that right?---Correct.

**** NERIDA MICHELLE AITKEN XXN MR EDMOND
PN364

What did you do - - - ?---I was - - -

PN365

It's all right. Do you still maintain that practising certificate?---No, I don't.

PN366

Have you got IR experience? Have you ever run any section 127 hearings or similar in the Commission before?---No, I haven't.

PN367

Have you assisted other persons to run section 127 hearings in the Commission? Okay. Now, you say that your job at Wagerup is to be the primary giver of advice to management and to act as a liaison between management and the unions, is that correct?---Correct.

PN368

Now, you asked a question about the numbers of employees at the Wagerup site and you said there were approximately 680 to 690 full time equivalents on the sites and you said that the AWU was the majority of the site. When you say that, do you mean that persons eligible to join the AWU are the majority on the site?
---That's correct.

PN369

Okay. When you talk about the CEPU, you say there were 25 persons eligible for membership at the CEPU who were rostered for work today?---That's correct.

PN370

How many of those persons eligible for membership of the CEPU who are rostered for work today attended work today?---Three.

PN371

Now, you spoke about a rally at Pinjarra. What was that rally in relation to?---I understand it was a rally in relation to the National Day of Action.

PN372

A rally occurred at Pinjarra today, did it?---I don't know. I don't know if the rally actually occurred at Pinjarra, but that was what I was told was occurring.

PN373

Your evidence was that a rally occurred at Pinjarra today. Are you not sure whether that actually occurred?---My evidence was that I was told a rally was going to be occurring today.

PN374

Who told you that?---Julio Costa and also in relation to - - -

PN375

THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't catch the last part of your answer because of the rustling paper?---Sorry, your Honour. I was - perhaps Mr Edmond can repeat the question for me?

**** NERIDA MICHELLE AITKEN XXN MR EDMOND
PN376

MR EDMOND: I asked you who told you there was to be a rally at Pinjarra today?---Who told me was Mr Costa communicated the contents of his discussions with Mr Price. I also had it communicated to me by the supervisor informed me of the discussions he had had with the employee regarding whether they'd be attending the National Day of Action rally and I was also informed in relation to - by Mr Wayne in relation to the employee from the training department who attended the rally at Pinjarra.

PN377

Now, you said that on 16 June 2006 you attended a meeting with Mr Whitwa, who's the line manager who deals with the CEPU?---Yes.

PN378

And a Mr Laurie Cross and a Mr Kittrich, is that correct?---That's correct.

PN379

And at that meeting you discussed a letter that was sent by your HR manager, what's his name again?---Mr Phillips is the WA HR manager.

PN380

Okay, and he'd sent a letter to whom, sorry?---Mr ....

PN381

Right. And what's your understanding of who Mr Jim Muirey is?---My understanding is that he's either the state secretary or an industrial organiser of the CEPU.

PN382

And so a copy of a letter sent to Mr Jim Muirey, who is the assistant secretary of the CEPU was presented to those persons, is that correct?---Both of them.

PN383

Now you say that you weren't aware - sorry, I wonder if you could describe the content of that letter again?---The content was to set out a without prejudice offer that was being offered by Alcoa to each of the unions with respect to releasing, authorised or recognised delegates .... to attend the rally if they were rostered to work that day on a no loss of pay basis provided that all other employees who are covered by the relevant union attended for work that day in question.

PN384

Now, that letter was addressed from Mr Phillips, was it?---That's correct.

PN385

Would it be ordinary then for, if that offer had been accepted, would that be communicated to you by the unions that that offer had been accepted, given the correspondence came from Mr Phillips?---No, it wouldn't be ordinary insofar as it's a communication at a WA level that goes from .... in WA HR ....

**** NERIDA MICHELLE AITKEN XXN MR EDMOND
PN386

Right. So really, unless Mr Phillips had told you, you'd have no knowledge as to whether that offer had been accepted?---Well, no, because I also - when I asked the question to Mr Cross and Mr Kittrich, they - you know, they responded, they asked me what was Alcoa's position with respect to an offer that was made by CEPU to Alcoa. So I would expect to be notified by Mr Phillips as to the outcome or the response he'd received from the letter from the CEPU, but I'd also expect to receive a response from site CEPU.

PN387

Well, your evidence was that you asked if you were aware that the CEPU had accepted the offer and you said no. You were then asked if you were aware if any CEPU member was authorised to attend the rally and you said no. So you're not aware if either of those things occurred? All right, okay. I've got no further questions for this witness, sir.

PN388

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Edmond. Mr Trotter, do you have any questions?

PN389

MR TROTTER: Yes, I do, sir, and I just reserve the right to recall this witness as well, sir, because she's quoted some discussions she's had with various people at the site, being Mr Matthews and Mr Price and I don't know, I haven't been instructed on that.

PN390

THE SENIOR DEPUTY PRESIDENT: Yes.

<CROSS-EXAMINATION BY MR TROTTER [7.10PM]

PN391

MR TROTTER: I'd just like to ask a few questions, Ms Aitken. On 16 June of 2006 you stated you had a discussion with Mr Barry Matthews, the assistant convenor at Wagerup regarding a letter that was sent to Mr Daly, is that right?
---Correct.

PN392

And he answered back that he didn't know what was happening in regards to any action?---He answered back that he hadn't been notified by the AWU office what was happening in relation to the Day of Action.

PN393

Then you go on to say that on the 27th of this month, that at 2.45 Mr Price contacted and spoke to Mr Costa, and he also informed Mr Costa who informed to you, that he didn't know what was happening in terms of any action, that was yesterday?---He informed Mr Costa that he didn't know what the guys were doing.

**** NERIDA MICHELLE AITKEN XXN MR TROTTER
PN394

The guys were doing. And then you further went on to say that there were two incidents, one at 3.10 pm and one at 7.50 when employees in the op centre were told by Mr Costa that they'd been given directions to attend a meeting at Pinjarra, is that correct?---No, that's not correct.

PN395

What was it then?---I was advised that a supervisor in one of the op centres had been informed by one of his employees that he had been notified to attend a rally at Pinjarra.

PN396

Who notified him?--- .... by whom?

PN397

Employee?---I was advised that the employee went away, spoke to one of the stewards in the op centre and returned and communicated then to the supervisor involved that he had been told that there was a Pinjarra rally tomorrow, or a Pinjarra meeting tomorrow and that he was to attend that.

PN398

Do you know who that steward was?--- .... I believe.

PN399

And the second instance at 7.50, similar, where a supervisor was informed by an employee, is it?---No.

PN400

What happened in that instance?---At 7.50 Mr Costa rang me and told me that he had just had a telephone discussion with Mr Price.

PN401

And in terms of the notices that you state were put up in the crib rooms advertising the event, who put those notices up?---I don't know.

PN402

Have you seen the notices?---I have.

PN403

Were there union logos on them?---No, there weren't - the ACTU.

PN404

ACTU, so it's a national poster that's gone up?---I can't comment on whether it's national or not. I can tell you that it had ACTU written on it.

PN405

Okay, so there was no unions just sitting at this table involved in those notices?
---I can't answer that question.

PN406

Okay. I'll reserve my right to recall this witness, sir.

**** NERIDA MICHELLE AITKEN XXN MR TROTTER
PN407

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Trotter. Mr Ellis?

PN408

MR ELLIS: Thank you, sir. WE too reserve our right to recall the witness. However I would ask one or two questions now.

PN409

THE SENIOR DEPUTY PRESIDENT: Yes.

<CROSS-EXAMINATION BY MR ELLIS [7.13PM]

PN410

MR ELLIS: Ms Aitken, you spoke to a meeting, I think on 19 June you had with Mr Hadida, is that correct?---That's correct.

PN411

And your evidence, as I understand it, that you were at that meeting with Mr Hadida, you gave Mr Hadida a copy of the letter which was in the same terms or the same letter that was sent to the other unions, is that correct?---That's correct.

PN412

And that letter was sent to Mr Tracey, is that correct?---Sent to Mr Tracey, copy to the convenor, and that was the case with each of the letters.

PN413

And Mr Hadida's office reply to you was - or you asked him, as I understand it, was he was not aware of what the AMWUs response was to the offer, is that correct?---That's correct.

PN414

So you can't be certain, I put it to you you can't be certain one way or the other, other than he didn't know what the response from the AMWU was at the time?
---No, I can't be certain.

PN415

I too asked questions about the posters. You saw these posters yourself, and did they have any AMWU logos on them?---No, they didn't.

PN416

Did they have any names that you could readily associate with the AMWU?---No, they didn't.

PN417

And they were authorised by somebody in the ACTU, is that correct?---Yes.

**** NERIDA MICHELLE AITKEN XXN MR ELLIS
PN418

Now, in respect of your evidence in relation to approval to attend the rally, your evidence, as I understand it, was that not to your knowledge was there any approval given by the company for the workers to attend the rally, is that correct?
---That's correct. To my knowledge no one was given approval to attend the rally.

PN419

It is possible that somebody may have been given approval to attend the rally?---I can't comment on that.

PN420

You don't know specifically whether or not approval was not given?---I don't know - to my knowledge, no one was authorised to attend the meeting.

PN421

Now, in your evidence you spoke liberally of the numbers of AMWU members. How do you know of the 125 on the site, which include the apprentices, that they are all AMWU members?---I don't know if they're all AMWU members. I know that they are members or eligible to be members of the AMWU.

PN422

You say, your evidence was that of about 50 people who should have attended, none of them appeared, is that correct?---To my knowledge that - yes.

PN423

But you can't be certain one way or the other whether, of those 50 people any or all of them or none of them were AMWU members, can you?---No, I can't.

PN424

I have no more questions, sir.

PN425

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ellis. Any re-examination, Mr Caspersz?

PN426

MR CASPERSZ: No, thank you, your Honour.

PN427

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for your evidence Ms Aitken. However, you['re not excused because you may be recalled for further cross-examination?---Understood.

PN428

You can leave the witness box now though, thank you.

<THE WITNESS WITHDREW [7.16PM]

PN429

MR CASPERSZ: Thank you, your Honour. The applicant has one final witness, Mr Matthew Gleeson, who is outside court and somebody is trying to get him now.

PN430

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN431

MR ELLIS: Sir, I wonder, while somebody is seeking out Mr Gleeson as a witness, might we have a brief adjournment? I would appreciate one at least for the purpose of a comfort stop, if you don't mind.

PN432

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I'll stand the matter down. Is there still a representative of the Commission there?

PN433

MR ELLIS: Yes, there is.

PN434

THE SENIOR DEPUTY PRESIDENT: Well, the Commission representative can let my associate know when you've returned or I'll return in seven minutes in any event if I haven't heard before then.

PN435

MR ELLIS: I think that would be an appropriate time.

PN436

THE SENIOR DEPUTY PRESIDENT: Yes.

<SHORT ADJOURNMENT [7.17PM]
<RESUMED [7.29PM]

PN437

THE SENIOR DEPUTY PRESIDENT: Has Mr Gleeson arrived?

PN438

MR CASPERSZ: Yes, he is here your Honour.

<MATTHEW GLEESON, SWORN [7.30PM]
<EXAMINATION-IN-CHIEF BY MR CASPERSZ

PN439

MR CASPERSZ: Your full name is Matthew Gleeson and you are employed by the applicant in these proceedings and you are employed in the position of human resources business partner. Can you just briefly describe for his Honour your role and your duties as a human business resource partner?---Job it actually involves a great deal of range of HR activities for the Pinjarra refinery and that includes industrial relations plus all the line managers and having to oversee the essential core for the onsite delegates and making sure that the HR activities are for training and rehabilitation et cetera are managed appropriately for the refinery.

PN440

Thank you.

PN441

THE SENIOR DEPUTY PRESIDENT: I’m sorry I didn’t get Mr Gleeson’s position or classification or position?

PN442

MR CASPERSZ: Human resources business partner, your Honour.

PN443

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN444

MR CASPERSZ: In your position Mr Gleeson have you had dealings with any of the three respondents?---Yes.

PN445

Who on behalf of the three respondents have you dealt with?---Our site convenors for the AWA Mr Brett Vanmaris, Mr Brent Feeney for the AMWU, Mr Rozentals for the CEPU.

PN446

Can you briefly describe for his Honour the number of employees at the site?
---We have about 1150 employees in total. About 600 of those are AWU members, for - - -

PN447

THE SENIOR DEPUTY PRESIDENT: Sorry, I didn’t catch that? You’ll have to slow down a bit Mr Gleeson, I can’t understand what you are saying?---About 600 are covered by the AWU agreement around 200 are covered by the ANWU agreement, around 60 are covered by the CEPU.

PN448

MR CASPERSZ: Now can I just deal with the AWU, have you had any discussions or been involved in any discussions with the AWU person in relation to the events that occurred today?---I’ve had several conversations with Mr Vanmaris prior to today.

**** MATTHEW GLEESON XN MR CASPERSZ
PN449

When did those conversations occur?---They probably had been – I don’t have the specific dates, but there probably have been half a dozen over the last fortnight.

PN450

Can you describe for his Honour the substance of those conversations please?
---They were almost all exactly the same. In fact, they were all the same. I would ask Mr Vanmaris what his intentions were with the Pinjarra membership on 28 June and Mr Vanmaris’ consistent response was that he was awaiting advice from his State or Federal and couldn’t tell.

PN451

As far as the CEPU is concerned, have you had any discussions concerning them?---Probably spoke to Mr Rozentals twice, on the days leading into today, asked him the same questions. What do you intend to do on 28th, Mr Rozentals response was that he wouldn’t discuss that with me.

PN452

Have you had any discussions in relation to this matter with remaining organization?---I spoke to Mr Feeney several times and asked him the same question and Brent’s response was that he did not know what the would happen.

PN453

What has occurred at the Pinjarra site today?---I had a phone call from Mr Tracey, Mr Will Tracey this morning.

PN454

Who is Mr Will Tracey?---He’s an employee of the AMWU so he’s I think the south west organizer for the AMWU.

PN455

What was the substance of that conversation?---It was only a phone message, I didn’t pick up the call unfortunately, but it was about a quarter to seven and Mr Tracey’s message was, Matthew the employees will be meeting at the Pinjarra football ground for an information meeting at 8 am. That was the end of the message.

PN456

Do you know whether that meeting took place?---I wasn’t there but I drive home from Pinjarra on the way to work, and it was already quite evident that cars were assembling at the - - -

PN457

THE SENIOR DEPUTY PRESIDENT: Sorry, you cut out then I didn’t catch what you said?---I passed through that area, I drive through Pinjarra again to my workplace. I drove through that area, probably 20 past seven, and there were already a number of cars assembling at the football ground.

**** MATTHEW GLEESON XN MR CASPERSZ
PN458

MR CASPERSZ: What shifts are worked at your site, during the day?---We have a combination of 12 hour shifts and 10.3 hour shifts.

PN459

Is it a 24 hour a day operation?---Yes.

PN460

Is it seven days per week?---Yes.

PN461

How many persons would be covered by the AWU to your knowledge who were rostered on the shift this morning?---The - - -

PN462

What time was that shift supposed to start?---The shifts can either start at 7 am or 7.30 am depending on the department. There would be have been across the plant around 180 AWU members rostered - - -

PN463

THE SENIOR DEPUTY PRESIDENT: Sorry, I missed the number then?---180, that’s an approximate your Honour.

PN464

MR CASPERSZ: To your knowledge, how many actually attended in accordance with the roster for work today?---To my knowledge, none attended.

PN465

To your knowledge approximately how many CEPU persons or persons who would be covered by the CEPU agreement were rostered for work today for that morning shift?---Approximately 30 – sorry, I take that back, it would be slightly less than that, it would be around 25.

PN466

To your knowledge how many of them did attend for work and remained at work in accordance with the roster?---None.

PN467

Finally in relation to the AMWU, how many were rostered?---There would have been around 80 and I believe none attended.

PN468

THE SENIOR DEPUTY PRESIDENT: You tailed off again, I’m sorry I didn’t catch what you said?---The number was around 80 and I believe that none attended.

PN469

MR CASPERSZ: You gave some evidence before in relation to discussions with persons on behalf of each of the respondents to the effect that they did not know what plans the union had for the day. Can I just clarify one thing in relation to that, have you discussed with either or all of those persons before what their union does in the workplace?---I’m not sure I understand the question.

**** MATTHEW GLEESON XN MR CASPERSZ
PN470

Have you had dealings with either of those persons before in relation to union matters in the workplace?---Constantly, yes.

PN471

Have they been able to advise you before about what their union’s position has been in respect of the various matters in the workplace?---Generally, yes, they are all typically all forthcoming generally.

PN472

Just bear with me for one minute please. Just one final question please Mr Gleeson, do you have any knowledge of anyone who tried to attend for work this morning, but didn’t?---Yes, I am aware of that.

PN473

What is your knowledge of that?---The employees were turned away at the security gate by the union convenors of the AWU, CEPU and AMWU, and they were essentially met at the front gate facility by three of the AWU executive and one each of the CEPU and AMWU executive and while I didn’t hear the conversations, I’m led to believe that they were essentially told to turn around and head to the football ground.

PN474

What is the basis of your knowledge?---That was reported to me by the security at the refinery, security.

PN475

The name of the supervisor?---His name is Graham Doy.

PN476

Are you aware of any minor sites that are operated by the applicant in Western Australia?---Yes.

PN477

Where are those mine sites?---They are the Huntley mine site which feeds the Pinjarra refinery, it’s very close to Pinjarra. The Willowdale mine site, which is further south, closer to Wagerup.

PN478

Given what you’ve told the Commission about your duties and responsibilities and what you do, do you have any basis for knowing what types of employees work at those mine sites?---Yes, I have general knowledge of that.

PN479

What types of employees work? Do they have any coverage by any of these unions who are respondents to this application to your knowledge?---Yes, each of them would have members on those mining sites.

PN480

Can you advise the Commission briefly approximately how many employees work at each of those mine sites?---Huntley operation would have around 600 employees, total. The Willowdale operation just over 200.

**** MATTHEW GLEESON XN MR CASPERSZ
PN481

Out of the 600 at Huntley, do you have any knowledge of approximately how many might be covered by any of the respondent unions here today?---The numbers will be approximate. I believe that around 300 are members of the AWU, probably 60 AMWU members and probably 20 CEPU members, that’s an approximate only – I don’t work there, so I don’t know.

PN482

Can you assist the Commission in respect of the other mine site in respect of similar types of numbers?---At Willowdale, I’d say there’s probably around 100 AWU members, 38 AMWU members and a dozen CEPU members in an approximation.

PN483

MR ELLIS: Your Honour, I indulged my learned friend in relation to this line of questioning, but I can’t see the relevance to what it is to the allegations and the application before you.

PN484

THE SENIOR DEPUTY PRESIDENT: Yes, I’m struggling a bit at the moment, but perhaps Mr Caspersz will make that clear to me in a moment.

PN485

MR CASPERSZ: Yes, thank you, your Honour. The order is actually framed to plant and persons who are employed at the mine site, and it will be a matter of weight for the Commission, but this is the evidence that the applicant will rely upon in relation to the mine sites.

PN486

THE SENIOR DEPUTY PRESIDENT: Yes.

PN487

MR CASPERSZ: Do you have any knowledge of whether persons attended for work at the mine site today?---I’m advised they didn’t.

PN488

MR EDMOND: Objection, sir, hearsay again.

PN489

MR CASPERSZ: A matter of weight, your Honour.

PN490

THE SENIOR DEPUTY PRESIDENT: Yes.

PN491

MR CASPERSZ: Who has advised you of that?---Ron Petit who does my job while I’m on leave.

PN492

Thank you your Honour, no further questions.

**** MATTHEW GLEESON XN MR CASPERSZ
PN493

THE SENIOR DEPUTY PRESIDENT: Mr Edmond, any cross-examination.

<CROSS-EXAMINATION BY MR EDMOND [7.42PM]

PN494

MR EDMOND: Yes sir, again sir, we would ask for an arrangement with Mr Gleeson, as with the other two witnesses.

PN495

THE SENIOR DEPUTY PRESIDENT: Yes.

PN496

MR EDMOND: Thank you sir.

PN497

You say at Pinjarra there’s 1150 employees in total? Approximately 600 eligible for membership of the AWU, approximately 200 eligible for membership with the AMWU and approximately 60 eligible for membership at the CEPU?---Yes.

PN498

You don’t know if any of those people are actually members of the unions do you?---I understand that they are.

PN499

THE SENIOR DEPUTY PRESIDENT: Sorry what was that?---I understand that they are members of those unions.

PN500

MR EDMOND: Have you attended the union’s office and examined the union’s records to see that they are members of the union?---No, I have not.

PN501

So you suspect that they might be members of the union, but you don’t know for sure, do you?---I have an extremely strong suspicion, yes.

PN502

You say you had discussions on two occasions with Mr Rozentals on behalf of the CEPU with respect to what was happening on 28 June 2006, you said in your evidence that he said he wouldn’t discuss it with you, is that correct?---That’s correct.

PN503

Did he say why he wouldn’t discuss it with you?---No, no.

PN504

Are you aware of who the CEPU’s organizer is that deals with Alcoa is?---The only one that I have regular contact with is Jim Muirey.

PN505

Did you contact Mr Muirey?---No.

PN506

You said this morning you were aware there was a meeting scheduled at the Pinjarra football ground for a – is that correct?---That’s correct.

**** MATTHEW GLEESON XXN MR EDMOND
PN507

You said that when you drove through Pinjarra you were aware that cars were congregating at the football ground, is that correct?---Yes.

PN508

Did you attend that meeting to see who was present?---No.

PN509

Do you know for a fact that maybe there wasn’t a game of football on?---I haven’t been here that long, but I haven’t seen too many Wednesday football games in Pinjarra around there but I strongly suspect that there wasn’t a football game on.

PN510

But you don’t know who attended that meeting do you?---No.

PN511

Did you witness any employees being turned away from the gate this morning at Pinjarra by the union convenors?---No.

PN512

Did you attend the mine sites, at Huntley or Willowdale to see if anyone was at work that day, today?---No.

PN513

Have you been to the Huntley or Willowdale sites today at all?---No.

PN514

When did you leave the Pinjarra site today to come to town to give evidence?---It would have been around quarter past two in the afternoon.

PN515

Have you spoken to anyone from the site since you left?---I’ve had numerous phone calls on my way up, yes.

PN516

Who from?---That would have been from the management team, one from the manager, and I don’t - - -

PN517

Okay are people at work at the moment?---Not to – no I don’t believe so.

PN518

No-one at work at Wagerup at the moment?---I’m at Pinjarra.

PN519

There’s no-one at work at Pinjarra at the moment?---There’s staff there, at the bay, there’s people down at the powerhouses, they’ve been there all day, I’m not aware of anyone else that were actually present.

PN520

You said no-one attended for work?---I inquired before I came back to - - -

PN521

THE SENIOR DEPUTY PRESIDENT: Sorry I can’t understand what you are saying while people are rustling paper at the bar table so?---A call out crew did come back to the refinery and about six people who didn’t perform any work for us other than remained on site to make themselves available to assist in the event of a fire or an accident that injured one of our staff, so they are trained ambulance and fire officers that provide that service.

**** MATTHEW GLEESON XXN MR EDMOND
PN522

Do they get paid for their work today?---I hadn’t considered that, I would expect that I would pay them.

PN523

So they are working then?---They are not performing any tasks other than being available in the unfortunate event of an injury to the staff.

PN524

What’s your understanding as to night shift?---My understanding is that we will have employees at work as per normal.

PN525

When does night shift start?---Again there are some different start times, depending in the department, but for most people it is either 7 pm or 7.30 pm.

PN526

What about the CEPU members, do they start?---At the same time.

PN527

At seven or 7.30?---Yes.

PN528

So it’s your evidence then that as of 7 or 7.30 this evening, there will be no industrial action occurring?---That’s what I expect.

PN529

You have a strong suspicion that that would be the case?---I hope that that’s the case.

PN530

I’ve got no further evidence for this witness.

PN531

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Edmond, any questions Mr Trotter?

PN532

MR TROTTER: Yes, sir we reserve the right again to recall this witness as previously.

<CROSS-EXAMINATION BY MR TROTTER [7.48PM]

PN533

MR TROTTER: Mr Gleeson, you state that you spoke in the last fortnight to
Mr Frank Vanmaris on approximately six occasions. On those six occasions he told you that he did not know what was happening, is that correct?---He told me that he was awaiting advice from his state or federal office and that he had not received that advice.

PN534

Did you seek to find from the federal office of the AWU what was happening?
---No.

**** MATTHEW GLEESON XXN MR TROTTER
PN535

So in that period in the last fortnight you’ve had plenty of opportunities to either contact some of the state office or the federal office to find out what was actually happening?---I could have, yes, but I didn’t.

PN536

You didn’t?---No.

PN537

Again at the meeting that you allege was going on this morning at Pinjarra, are you sure they are people from the Alcoa work site that were actually attending that, it could not be some other work site that was attending a meeting at the Pinjarra football ground?---Well I guess it could have been.

PN538

So you are not sure that it was actually members of the Alcoa Pinjarra, Wagerup, Kwinana, Huntley, Willowdale mine sites that were actually attending a meeting at the Pinjarra football ground?---I didn’t go to the football ground and view it. My belief is that the Pinjarra employees were there.

PN539

You are not sure are you? Your belief is not being sure is it?---I didn’t see it, no.

PN540

That’s all at the moment your Honour.

PN541

THE SENIOR DEPUTY PRESIDENT: Mr Ellis do you have any questions?

PN542

MR ELLIS: Yes sir one or two and again we reserve our right to call this witness.

PN543

THE SENIOR DEPUTY PRESIDENT: Yes.

<CROSS-EXAMINATION BY MR ELLIS [7.50PM]

PN544

MR ELLIS: You mentioned you had a conversation with Mr Feene on or about 28 June, is that correct?---I spoke to Brett today, yes.

PN545

I’m sorry I withdraw that. Previous prior to today you had a number of conversations with Mr Feeney haven’t you?---Yes.

PN546

Your evidence was that Mr Feeney did not know what the union would do on 28th, is that correct?---Correct.

PN547

Did you ever at any time, attempt to call Will Tracey and discuss the matter with him?---No.

**** MATTHEW GLEESON XXN MR ELLIS
PN548

Why not?---I feel the Pinjarra people, Mr Phillips, the Western Australia HR manager was in contact with staff, with the state offices there.

PN549

This is an important matter for you, you’ve bought the application to the court, you are putting us to our test, but you still didn’t think it was important to talk to Mr Tracey?---I believe it is important now, and the HR manager for the Pinjarra operation was in contact with the state office.

PN550

Did you at any time attempt to call Mr McCartney?---No.

PN551

Why not?---I’ve never had contact with him, in fact I only met him for the first time today.

PN552

Did you at any time attempt to call Mr Ferguson?---No.
Why not?---I – because I dealt with my site people and Mr Phillips was in contact with them on behalf of the site.

PN553

Mr Gleeson, you say you got a call message from Mr Tracey at about 6.45 today and that was possibly, as you were driving to work, possibly. Can you tell the Commission the context of that message was?---Mr Tracey said words to the effect of, Matthew the employees will be attending an information meeting at the football ground at 800.

PN554

Did Mr Tracey in his message to you say that the AWU members would be attending?---He used the words the employees.

PN555

THE SENIOR DEPUTY PRESIDENT: Sorry used the words what?---He used the words, the employees.

PN556

MR ELLIS: He didn’t necessarily or specifically refer to AMWU
members?---No.

PN557

I too wish to ask some questions about your observations in relations to the car park at the football oval. Are ;you aware that other unions, other workers in WA have attended this rally other than AMWU, CEPU, and AWU people?---No.

PN558

You can’t be certain that they were teachers, or they might have been other people gathering at the football oval?---No.

**** MATTHEW GLEESON XXN MR ELLIS
PN559

Did you stop?---No, I didn’t.

PN560

Did you interrogate anybody as to what was happening?---No.

PN561

Now your evidence is that of AWU you believe 180 AWU members, zero attended work. How do you know that?---Because I asked the - - -

PN562

THE SENIOR DEPUTY PRESIDENT: Sorry, you asked what?---The people who manage them, their supervision.

PN563

MR ELLIS: So you didn’t personally go there and see whether things were happening themselves?---No.

PN564

That applies to the CEPU and the AWU?---That’s right.

PN565

But nonetheless your evidence is that there was a fire crew on duty?---There was a fire crew that came back to the site after the information meeting at the football ground. Those employees left or did not attend the refinery until after the meeting.

PN566

Can I ask you, you spoke of an allegation, you spoke of alleged events which occurred at the security gates. Did you witness those events personally?---No.

PN567

In respect of the mine sites at Huntley or Willowdale, your evidence is that no-one attended work there this morning?---That is what I’ve been advised.

PN568

You didn’t go there yourself to see this, did you?---No.

PN569

Can you tell the Commission what the state of play is for – should I ask you – put it another way. What time did you leave the site to come to the Commission today?---I left around 2.15.

PN570

2.15?---Yes.

PN571

Have you been in contact with anybody on site, since then?---In the car on the way up, yes, not that I got - - -

PN572

What the reception wasn’t good?---Sorry.

**** MATTHEW GLEESON XXN MR ELLIS
PN573

I missed what you said?---In the car on the way to here, yes I was in touch with people at the refinery and not since then.

PN574

What did they tell you about?---They told me about the status had not changed.

PN575

THE SENIOR DEPUTY PRESIDENT: They told you what, sorry?---The status had not changed.

PN576

MR ELLIS: What does that mean?---Nobody had attended work.

PN577

So as we speak, are you aware or are you not aware of whether or not people have gone back, there is work occurring on site?---I do not know since the time I have been in this Commission, which has been around since 3.30 pm people have come back.

PN578

You can’t tell the Commission in your opinion, whether industrial action is or is not happening as we speak?---I don’t know whether employees have attended for work since 3.30.

PN579

I have no more questions your Honour.

PN580

THE SENIOR DEPUTY PRESIDENT: Thank you. Just before you re-examine if you are going to re-examine, Mr Caspersz. How do you spell Mr Feene’s name Mr Gleeson?---It’s F-e-e-n-e-y.

PN581

Was it Mr Rosens, the other person you said?---Mr R-o-z-e-n-t-a-l-s.

PN582

Mr Vanmmaris, is V-a-n-m-a-r-i-s, is it?---That’s correct.

PN583

Mr Caspersz, any re-examination?

PN584

MR CASPERSZ: Just a couple of quick ones your Honour.

<RE-EXAMINATION BY MR CASPERSZ [7.56PM]

PN585

MR CASPERSZ: Mr Gleeson, you gave some evidence about an extremely strong suspicion that there were members, what do you base that extremely strong suspicion on?---Well many things that we negotiate with the union on behalf of their conditions, that they represent them constantly day in day out in all manner of matters that relate to the workplace. I don’t know what else I can say, basically a fully unionised site.

**** MATTHEW GLEESON RXN MR CASPERSZ
PN586

MR ELLIS: Sir, I didn’t understand Mr Caspersz questions? What is it that you are asking of this witness Mr Caspersz.

PN587

THE SENIOR DEPUTY PRESIDENT: Well, I’ll ask the questions. Who was speaking then?

PN588

MR ELLIS: Sir, that was me, Dean Ellis.

PN589

THE SENIOR DEPUTY PRESIDENT: You raise a question of clarification you don’t understand the question that was asked by Mr Caspersz?

PN590

MR ELLIS: I don’t understand Mr Caspersz’ question at all no sir.

PN591

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, could you clarify the position please.

PN592

MR CASPERSZ: With respect your Honour, I don’t know whether it’s necessary for my friend to understand the question, it’s only necessary for the witness to understand the question. I asked a direct question the witness gave the answer and my friend can make submission in relation to the evidence. But I’m happy to ask the question to again if your Honour wishes me to.

PN593

THE SENIOR DEPUTY PRESIDENT: I understood the question was, upon what basis did he form a strong suspicion about the unionised workforce is that right, the substance?

PN594

MR CASPERSZ: That’s completely correct. If I might your Honour just some consequential questions from that.

PN595

In your experience dealing with the persons whom you’ve identified on behalf of the unions, has any of those persons said that they do not have any persons in your workplace?---No.

PN596

Finally just in relation to the events which occurred today, do you have any knowledge of whether they are in connection with any ongoing protest against industrial laws?---Yes.

PN597

THE SENIOR DEPUTY PRESIDENT: I didn’t catch the answer to that, I’m sorry?---The answer was yes they are, Commissioner.

**** MATTHEW GLEESON RXN MR CASPERSZ
PN598

Did anybody want to ask any questions arising out of that last question, because it wasn’t something that arose out of cross-examination, as far as I’m aware?

PN599

MR EDMOND: Perhaps if I could seem some clarification.

<FURTHER CROSS-EXAMINATION BY MR EDMOND [7.58PM]

PN600

MR EDMOND: Now you say that the purpose of the action today was a protest against the IR laws, is that correct?---My understanding of it.

PN601

Okay, is that the purpose of the meeting this morning as well, is that also your evidence?---My belief that the meeting this morning was to organize attendees for that rally.

PN602

Upon what did you form the basis that the purpose of the alleged action today was in support o f the protest against the IR laws?---The timing. There would be a meeting at 8 am of the morning of the rally is quite compelling I would have thought.

PN603

I’ve no further questions.

PN604

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr Trotter do you have anything further?

PN605

MR TROTTER: No questions sir.

PN606

THE SENIOR DEPUTY PRESIDENT: Mr Ellis?

PN607

MR ELLIS: No, no thank you, your Honour.

PN608

THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence
Mr Gleeson. Mr Gleeson you are not required to remain in the witness box but you may be recalled for further cross-examination in due course.

<THE WITNESS WITHDREW [8.00PM]

PN609

THE SENIOR DEPUTY PRESIDENT: Is that the evidence Mr Caspersz for the applicant?

PN610

MR CASPERSZ: That is the case for the applicant and subject to any submissions or evidence that the respondent unions wish to lead I’m in a position to put submissions to the Commission based on that evidence.

PN611

THE SENIOR DEPUTY PRESIDENT: Mr Edmond what’s your position with evidence? Are you calling any evidence?

PN612

MR EDMOND: We may well need to sir, but as I say I haven’t been in a position to obtain properly instructions. Unfortunately, I was a bit busy this afternoon, I was in town attending a rally and I didn’t actually get a copy of the application until approximately five minutes to three when the application was obviously coming on at 3 o’clock. So I haven’t had an opportunity to speak to
Mr Muirey who would be the relevant organizer or to our state secretary, or indeed to any of the shop stewards that have been referred to in the evidence today. I would really have to wait until I had spoken to them before I could ascertain whether we intend calling any evidence. However, sir, if I could take this opportunity to perhaps pre-empt the submissions of Mr Caspersz, which I’m sure no doubt will be seeking an interim order until the final determination of this matter.

PN613

What I would say is perhaps it might be more appropriate for the unions to give an undertaking at this point in time securing a return to work, or using the best endeavours to secure a return to work at night shift, pending the outcome or the final determination of this matter. Certainly I think the CEPU would be in a position to use our best endeavours to get a return to work. I believe that night shifts even on some of the sites may have even just started, or may be starting in the next hour or so.

PN614

THE SENIOR DEPUTY PRESIDENT: The evidence suggests that 7 o’clock is the night shift isn’t it?

PN615

MR EDMOND: Sorry?

PN616

THE SENIOR DEPUTY PRESIDENT: 7 o’clock is the start of the night shift isn’t it?

PN617

MR EDMOND: I believe some of the sites sir. The night shift might be six, I’m not sure I’m looking to my friends from Alcoa for assistance and none’s forthcoming.

PN618

MR CASPERSZ: If your Honour, I might please - I think there was some evidence that some of the sites might have started their night shift I am instructed at 5 o’clock, but other sites at 7 o’clock.

PN619

THE SENIOR DEPUTY PRESIDENT: All right, well Mr Trotter did you want to say anything? Do you propose calling evidence?

PN620

MR TROTTER: Sir, we would need to go and get instructions, there’s quite a few comments being made about quoted discussions with some of our convenors, we would need to go and talk to them to see what was being said, or what wasn’t being said. So yes, we may do have to call witnesses. We would also like to say that we would give assurances that we’d endeavour to get people back to work for the night shift tonight.

PN621

THE SENIOR DEPUTY PRESIDENT: When you say you would endeavour to get people back to work for the night shift tonight, on what basis do you suspect that they won’t be on the night shift?

PN622

MR TROTTER: Going on the facts that we are being told by Alcoa that there is no-one working there, I’ll ring the appropriate convenors to ensure that our members are not taking any form of industrial action or not attending work unless it is for a genuine sickness or some other reason.

PN623

THE SENIOR DEPUTY PRESIDENT: Mr Ellis, do you intend to call evidence?

PN624

MR ELLIS: We do and similarly we may need to call the evidence of the site convenors who have been quoted in evidence from the company and evidence from Mr Tracey. However, sir we say – my instructions are sir, that there’s in all likelihood there is to be a return to work this afternoon. In fact, there was in fact a return to work earlier today immediately after the rally. So my instructions are that there has been a return to work and there’s no reason for us to believe that there will not be a further return to work on the night shift time, of 7 or 7.30 when they are due to start. So we intend to make submissions that industrial action is not happening and that this application should be dismissed.

PN625

THE SENIOR DEPUTY PRESIDENT: Well what do you say Mr Caspersz, about the offer of the CEPU and Mr Edmond and Mr Trotter of undertakings to use their best endeavours to ensure that people will work the night shift.

PN626

MR CASPERSZ: My submission your Honour, is that the fact that the representatives of the union can actually say that to the Commission is indicative of the fact that the unions have had control over and have had involvement direct, or indirect in industrial action that is occurring.

PN627

MR EDMOND: Sir, that’s pure speculation we object to that.

PN628

THE SENIOR DEPUTY PRESIDENT: I’ll hear Mr Caspersz first and then I’ll come to you. But Mr Caspersz that doesn’t necessarily logically follow does it? I mean there’s been no concession apart from the CEPU that people are going back to work, or have gone back to work from the rally. There’s been no concession by the CEPU or the AWU that any of there people have taken industrial action or been absent from work.

PN629

MR CASPERSZ: It hasn’t been put at least expressly in my submission, to any of the witnesses, that the union’s do not have members on the workplaces in question. In my submission it hasn’t been put in any way to any of the witnesses that the unions disavowed any industrial action that has been taking place. It’s notorious that this was a national day of protest which is organized by the ACTU of which these unions are members. Nothing has been said to the Commission in my submission by my learned friends that any of the evidence that they want to lead before the Commission will in any way go to those issues of membership, or lack of membership, or of lack of involvement of these unions, in this industrial day of action.

PN630

Now, when that is coupled with the fact that the unions now say they will use their best endeavours and or something to the effect of, by using their best endeavours they feel confident that people will return to work, in my submission, against the background of evidence which has been led before the Commission. It is clearly open to draw the inference that the union has got involvement in what has happened today and continuing involvement in what has happened today. For that reason in my submission, the fact that the undertaking is being offered of themselves, is not sufficient, or should not be sufficient for the Commission to be satisfied that that will in fact take place.

PN631

But more fundamentally in my submission, it doesn’t mean that industrial action is not taking place, or is not happening in terms of the provision in the Act. Moreover, as I foreshadowed some time ago does not mean that industrial action has not been organized or to put it the other way, is being organized by these unions. That is the basis upon which the company has made this application. So that fundamentally is the company’s position, or my submissions in relation to the undertaking that has been offered by the unions. Fundamental in my submission is that the Commission with respect should proceed to hear and determine the matter unless the unions say that there is some evidence which relates to those issues that I’ve raised about membership or disavowing the industrial action.

PN632

THE SENIOR DEPUTY PRESIDENT: They haven’t had an opportunity to get instructions about that at this stage. I mean the other thing about it is, of course, is what time was this lodged? This application wasn’t lodged until 11 o’clock Perth time was it? Is that right?

PN633

MR CASPERSZ: My instructions are that it was some time shortly before
11 o’clock this morning, your Honour, that’s correct.

PN634

THE SENIOR DEPUTY PRESIDENT: Which is getting on to 1 o’clock our time, notice of listing went out shortly thereafter, as I understand it. What time was it served?

PN635

MR CASPERSZ: As I submitted at the outset your Honour, my instructions were that it was served sometime between 12.30 to 1.30 this afternoon Perth time.

PN636

THE SENIOR DEPUTY PRESIDENT: For a hearing at 3 o’clock.

PN637

MR CASPERSZ: The company certainly doesn’t resile from the fact that the matter has come on quickly. It is just the nature of these things that it does. But the fundamental issues as I’ve submitted are whether the unions are prepared to say that they either have no members at these workplaces, or that they disavowed that they are in any way supportive of the industrial action which is happening.

PN638

MR EDMOND: Sir, if I can be of some assistance. It is not the submission of the CEPU that the matter ought be dismissed now, we are happy to go through the evidence and go through the process. We are simply saying we haven’t had the opportunity to take any instructions and to call any witnesses yet. But what we are saying though is that at this point in time, in order to assuage the difficulties of the applicant or in order to assuage their fears, we are saying that we’ll give an undertaking to the Commission that we will use our best endeavours to try and get everyone back to work.

PN639

After all, that is the purpose of a 496 application is to secure a return to work and to make sure things are back to normal. The purpose is not to push on into the late hours of the evening. The purpose is not to give the unions a spanking. The purpose is to get a return to work. What we are saying is we will use our best endeavours to ensure that that occurs and indeed, an undertaking given to the Commission is in our view, a serious thing. It is not something that we give lightly and we are certainly not suggesting that the matter ought be dismissed at this point, we are happy to proceed. But we are saying in the interim while this matter does proceed, we’ll – if people haven’t attended for work, we’ll use our best endeavours to ensure that they do attend and that they do continue to attend.

PN640

THE SENIOR DEPUTY PRESIDENT: All right.

PN641

MR EDMOND: I mean we are giving the applicant’s what they wanted.

PN642

MR ELLS: Sir, with the greatest respect to Mr Caspersz, as I understand the law as it is at the moment. The applicant brought the application on the basis that they argued that industrial action is happening. It’s not for the unions to disavow or comply with the other conditions that Mr Caspersz has set out at all. It is for the applicant to show to the Commission that industrial action is happening. Now it goes - - -

PN643

THE SENIOR DEPUTY PRESIDENT: In the normal course, there would be a denial if there was none happening.

PN644

MR ELLIS: We don’t concede industrial action is happening at all, sir, we just say we haven’t had the chance to take instructions. I share Mr Edmond’s view on that, whilst not wanting to give an undertaking in the terms that Mr Edmond’s gave. We are happy to go through the evidence at some other juncture however, I did say earlier, that it will be at the moment it looks like that our ultimate submission will be that this application should be dismissed, because the applicant hasn’t met jurisdictional requirements of the Act pursuant to section 496.

PN645

THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, I am inclined to allow an adjournment until 9 am Perth time tomorrow morning, to give the organizations or the unions an opportunity to get their instructions. I think as a matter of equity and good conscience and the merits of the case, they should be given that opportunity to answer the case and call such evidence as they wish to call in relation to the matter. What do you say about that?

PN646

MR CASPERSZ: Sorry, your Honour you just dropped out there, can you still hear us here?

PN647

THE SENIOR DEPUTY PRESIDENT: Yes, I can. I said I’m minded to give the unions the CEPU, the AWU and the AMWU an opportunity to take instructions and lead such evidence as they may be advised beginning at 9 am Perth time tomorrow morning. Then I’ll hear full submissions from both parties on the matter. I think as a matter of equity and good conscience and the substantial merits of the matter, that is only fair.

PN648

MR CASPERSZ: Yes, your Honour can you just bear with me for one minute while I get instructions on that. If I might be excused from the bar table just to go outside for two minutes your Honour.

PN649

THE SENIOR DEPUTY PRESIDENT: Yes all right. I won’t hear anything further until Mr Caspersz returns.

PN650

MR CASPERSZ: Sir, I’m just going to press the mute button from this end, thank you sir.

PN651

THE SENIOR DEPUTY PRESIDENT: Yes.

PN652

MR CASPERSZ: Thank you for your indulgence your Honour. My instructions are that having heard the undertakings being offered by my learned friends my client would consent to that adjournment until 9 o’clock on the basis of those undertakings. My client assumes that implicit in those undertakings is that work will resume and be as normal and that we will then come back tomorrow morning at 9 o’clock to meet the matter.

PN653

THE SENIOR DEPUTY PRESIDENT: I thank you for that Mr Caspersz. Mr Edmond?

PN654

MR EDMOND: Yes sir, there’s just a couple of things. I just wanted to confirm sir the fact that we give an undertaking that we will use our best endeavours to ensure that no industrial action is in no means a concession that industrial action has occurred or that we have in any way procured or attempted to procure an industrial action.

PN655

THE SENIOR DEPUTY PRESIDENT: I accept that for now but what I’m saying, or what you’ve said is that you will use your best endeavours. Mr Caspersz is prepared to consent to the adjournment on the basis that work will resume as normal and will continue as normal.

PN656

MR EDMOND: Yes, sir, the only other thing is that I actually have another matter on at 10 o’clock tomorrow in the State Commission. It’s a matter unfortunately that’s been pending for some time, it’s been adjourned off numerous times, so I wonder sir if we could reconvene maybe at 11 o’clock.

PN657

THE SENIOR DEPUTY PRESIDENT: No, we can start at 9 o’clock and we’ll see where we go and you can perhaps be excused at 10 o’clock. We’ll deal with your matter, the CEPU first. Mr Trotter do you maintain the undertaking that you will use your best endeavours to ensure that the work, or that work resumes as normal and continues as normal?

PN658

MR TROTTER: Yes, we give you that undertaking sir.

PN659

THE SENIOR DEPUTY PRESIDENT: Mr Ellis, I know that you say your people have returned to work, or that at least there has been a return to work.

PN660

MR ELLIS: That’s correct sir, and because of that we don’t see a need to give a undertaking particular. However, we join with my, the other unions here in saying that the matter should be adjourned to allow us time to get to take further instructions and make further submissions when we reconvene.

PN661

THE SENIOR DEPUTY PRESIDENT: Well I expect you to make inquiries in the event that there has been – or that work isn’t being carried on as normal that you will use your best endeavours to ensure that your members are at work?

PN662

MR ELLIS: Yes sir, we’ll give that undertaking in the same way as the other union.

PN663

THE SENIOR DEPUTY PRESIDENT: Yes, very well the matter is adjourned to 9 am West Australian time tomorrow morning that’s 11 am eastern standard time tomorrow morning.

<ADJOURNED UNTIL THURSDAY 29 JUNE 2006 [8.21PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MELINA MARY QUINLAN, SWORN PN94
EXAMINATION-IN-CHIEF BY MR CASPERSZ PN94
CROSS-EXAMINATION BY MR EDMOND PN202
CROSS-EXAMINATION BY MR TROTTER PN242
CROSS-EXAMINATION BY MR ELLIS PN248
THE WITNESS WITHDREW PN270
NERIDA MICHELLE AITKEN, SWORN PN278
EXAMINATION-IN-CHIEF BY MR CASPERSZ PN278
CROSS-EXAMINATION BY MR EDMOND PN362
CROSS-EXAMINATION BY MR TROTTER PN390
CROSS-EXAMINATION BY MR ELLIS PN409
THE WITNESS WITHDREW PN428
MATTHEW GLEESON, SWORN PN438
EXAMINATION-IN-CHIEF BY MR CASPERSZ PN438
CROSS-EXAMINATION BY MR EDMOND PN493
CROSS-EXAMINATION BY MR TROTTER PN532
CROSS-EXAMINATION BY MR ELLIS PN543
RE-EXAMINATION BY MR CASPERSZ PN584
FURTHER CROSS-EXAMINATION BY MR EDMOND PN599
THE WITNESS WITHDREW PN608