C2006/2865, Transcript of Proceedings [2006] AIRCTrans 974 (22 August 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15614-1

DEPUTY PRESIDENT IVES

C2006/2865

SIEMENS LTD
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/2865)

MELBOURNE

2.40PM, FRIDAY, 28 JULY 2006

PN1

MR H SKENE: I seek leave to appear on behalf of the applicant.

PN2

MR G BORENSTEIN: I appear for the CEPU and there's no objection to leave.

PN3

MR J MADDISON: I appear on behalf of the CFMEU and appearing with me today, your Honour, is MR E WALTERS. Like Mr Borenstein we don't oppose leave of Mr Skene in this matter.

PN4

THE DEPUTY PRESIDENT: Thank you.

PN5

MR B TERZIC: I appear on behalf of the organisation known as AMWU and I join with my colleagues in not opposing leave.

PN6

THE DEPUTY PRESIDENT: Thank you. Well, you've obviously had some discussions, Mr Skene, about this matter, has that made any progress?

PN7

MR SKENE: Yes, your Honour, although in the sense that we've narrowed the issues that might otherwise have been argued before you today but we haven't been able to reach a position where the matter need not proceed, so subject to anything that my friends might say about further conciliation I think our position would be that we've taken really as far as we can and that we're in a position where we would seek to press the application immediately.

PN8

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

PN9

MR MADDISON: Your Honour, we say two things, firstly, although Mr Skene sums up where the parties got to as between each other we are of the view that conciliation is always a worthwhile exercise under the auspices of the Commission and in this matter we make no exception to that and we do believe that it would be worthwhile with the assistance of the Commission as currently constituted. Secondly, if you were minded to go down that path and that was unsuccessful we do also apprehend an adjournment application in relation to further proceedings this afternoon.

PN10

THE DEPUTY PRESIDENT: On what basis?

PN11

MR MADDISON: Your Honour, on the basis essentially the position that we got to was that perhaps from Siemens and they can speak for themselves obviously, but as I understand it that they recognise that in relation to the current matter the unions, that is acting through their officials or the shop stewards on the site, did not incite or encourage, et cetera, the alleged industrial action and on that basis they wouldn't be seriously pressing - - -

PN12

THE DEPUTY PRESIDENT: I won't put you to any more explanation at the moment on that, we can get to it if we need to get to it, Mr Maddison.

PN13

MR MADDISON: Yes, your Honour.

PN14

THE DEPUTY PRESIDENT: Look, I would normally have been minded to go into conciliation and still am given what Mr Maddison has said but that's obviously subject to the company being prepared to do so, Mr Skene. There's no much point if they're not.

PN15

MR SKENE: Look, your Honour, I think that you'll very quickly be able to form a view about whether that's productive so we'd be happy to adjourn for a short period to enable that to happen and we can explain why we say it's not going to be productive.

PN16

THE DEPUTY PRESIDENT: All right, thank you. I will go off the record briefly, thank you.

<OFF THE RECORD

PN17

THE DEPUTY PRESIDENT: We have had some discussions in conference in this matter and unfortunately they were not successful so, Mr Skene.

PN18

MR MADDISON: Sorry, your Honour.

PN19

THE DEPUTY PRESIDENT: Yes, Mr Maddison.

PN20

MR MADDISON: I think we apprehended prior to the conference that if the conference didn't resolve the matter that we would press our adjournment. I'm not sure if now is the appropriate time to - - -

PN21

THE DEPUTY PRESIDENT: It probably is, Mr Maddison, so press away.

PN22

MR MADDISON: Your Honour, as we indicated prior to the conference, we understand the position of the applicant is that they will not seriously press against the respondent unions which leaves employees of both Siemens and in the application the employees of unnamed contractors engaged on the project. It would be our submission that those persons are not aware of this application and that those persons, although we are not walking away from the fact that I am here making submissions on their behalf, obviously we do not have instructions from them and we do not or have not been able to communicate with them about the serious consequences of any order which may flow from this afternoon's proceedings and those seriousness of the implications have been somewhat magnified by the changes of the Work Choices Act which has modified consequences of any breach of what now the section 496 orders, including if you do not comply, section 814 mandates up to 12 months imprisonment for in breach of an order as well as the increased penalties for any breach of any orders.

PN23

Now, the unions from our part, and we understand there will be no work on the weekend and the earliest that work could resume is 7 o'clock Monday, and the unions from our part indicate to the Commission that we're in a position to facilitate an orderly return to work - - -

PN24

THE DEPUTY PRESIDENT: Yes, I might say, Mr Maddison, subject to what Mr Skene has to say, were an order to issue I'm not minded to issue any order that would take effect prior to Monday morning in any event so the individuals could not be in breach of that order until post 7 am on Monday morning.

PN25

MR MADDISON: If that be the case, your Honour, we would still say that those people are entitled to procedural fairness and that we would say that even though an order as you've indicated may not take effect until 7 o'clock on Monday that it would still be - and subsection (7) of section 496 provides where the Commission can't make an order and hear and determine a matter within 48 hours of the application being made that an interim order should not be made unless if the Commission is satisfied it would be contrary to the public interest to do so. Now, we would say that the Commission is bound to afford parties procedural fairness and we would say that it would be contrary to issue an order against individuals who have not been afforded procedural fairness in the circumstances where we would submit that any order that may be made would have no practical utility.

PN26

We would also say that if there was any concern about those individuals not going back to work then the matter could be re-listed early on Monday morning and we'd say the company would not be prejudiced in any way in those circumstances and it would mean that individuals who were not aware of the consequences of an order would not be put in a position that they may breach one where they weren't aware of either an order being sought against them or the consequences of any such order, those persons would not be able to say that on Monday morning if the matter did return to the Commission at that stage. We would say that it would be contrary to the public interest for the matter to proceed against them and any order is to be issued even if they were orders that would not take effect from, for instance, 7 o'clock on Monday morning.

PN27

We say that those orders would still in our submission at least offend the right for procedural fairness to be afforded to people. That is, the application would still be heard absent those people being able to be aware of the application or the consequences that may flow. Subject to what my friend has to say, that's - - -

PN28

THE DEPUTY PRESIDENT: Thank you, Mr Maddison.

PN29

MR MADDISON: Thank you, your Honour.

PN30

THE DEPUTY PRESIDENT: Mr Skene.

PN31

MR SKENE: Thank you, your Honour. Your Honour, the adjournment application is opposed. In my submission the ability of the Commission to adjourn a proceeding of this nature in any event is very limited. Certainly if your Honour had some concerns about your ability to fully hear and determine the issues between the parties the Act contemplates that and it provides that an interim order must be made within 48 hours unless there's a public interest consideration. Now, in my submission the matters raised by Mr Maddison are very much matters really of natural justice and that's the procedural fairness aspect that he's talking about and natural justice is met for the purpose of these proceedings by the fact that they are here, the relevant parties are here represented by their unions.

PN32

The Commission has had to consider that issue in the past. There's a Full Bench decision about it involving Tenix. I don't actually have the reference in front of me but an appeal was made on precisely these grounds and it was rejected by the Commission. Beyond that, any concerns Mr Maddison has about the progress of the proceedings can be resolved - well, they're private concerns, not public ones, in the first instance and secondly, they can be resolved by the course that your Honour suggested and that is that if you were concerned about this an interim order could be made and that interim order obviously is subject to your Honour having an opportunity to fully hear and determine the full range of issues.

PN33

So that would be the appropriate course. There isn't any public interest consideration here that would warrant any different course so, your Honour, that's really I think what the applicant would say about that and if your Honour is minded to hear anything further I can make a more fulsome submission.

PN34

THE DEPUTY PRESIDENT: No, that's sufficient, thanks. Anything further,
Mr Maddison?

PN35

MR MADDISON: Just in respect to the case that Mr Skene raised in the Tenix matter, I just say in relation to that the factual scenario was very different. In that instance firstly the unions said that they weren't representing the employees and the Full Bench found that the unions represent employees and they can't turn up and properly say that we don't represent them in those circumstances. Secondly, the shop stewards and the employees were aware of an application, all the shop stewards were present and we say that's different to the circumstances that are before you. We say that that Full Bench decision can be distinguished on those bases to the present circumstances. Other than that we don't have anything further, your Honour.

PN36

THE DEPUTY PRESIDENT: Thanks, Mr Maddison. Look, I too have concerns about the exposure of the individuals if they've taken the sort of action that it is alleged that they've taken and I too would prefer a set of circumstances somewhat different than those that face me at the moment. However, I'm not persuaded that the public interest in the circumstances that confront me and at least on my reading of the Act it seems to me that there's an obligation placed upon me to hear and determine the application that is before me and that is what I intend to do. So your application for adjournment is denied, Mr Maddison. Mr Skene.

PN37

MR SKENE: Your Honour, as I indicated at the outset, during conciliation the parties have reached some level of agreement about the matters in dispute and on the basis that each of the unions might make a denial on the record that they or their officials were involved in the industrial action we would be content not to press the action against those organisations and so essentially we're concerned with the conduct of the employees. Now, they're employees of Siemens and employees of various subcontractors. As my friend indicated, those subcontractors are not named in the application but that will be a matter for evidence and if it's desired that the order articulate expressly which subcontractors it applies to as at this date we would be content to modify the order in that way. But we're concerned with - - -

PN38

THE DEPUTY PRESIDENT: Well, I think it would have to do that, Mr Skene.

PN39

MR SKENE: Indeed, indeed.

PN40

THE DEPUTY PRESIDENT: And I don't intend to issue some generally worded document if I am persuaded that some document - - -

PN41

MR SKENE: Yes, your Honour.

PN42

THE DEPUTY PRESIDENT: It should be clear on the face of the document who it applies to.

PN43

MR SKENE: Indeed. The group of people that we're talking about though is the employees that are either employed by Siemens or by contractors engaged by Siemens at the Laverton project and their conduct this morning as articulated in the application. Your Honour, perhaps the most efficient course is for evidence to be led immediately from Mr Messenger about the conduct the subject of the application and then submissions can be made about the relevant statutory tests and the form of order.

PN44

THE DEPUTY PRESIDENT: Yes, yes.

PN45

MR SKENE: I call Jeffrey Robert Messenger, thanks.

<JEFFREY ROBERT MESSENGER, SWORN [3.30PM]
<EXAMINATION-IN-CHIEF BY MR SKENE

PN46

THE DEPUTY PRESIDENT: You can be seated, thanks, Mr Messenger.

PN47

MR TERZIC: Can I just hold over things for about a minute while I discuss a proposition with Mr Maddison next to me?

PN48

THE DEPUTY PRESIDENT: Yes, go ahead.

PN49

MR BORENSTEIN: Your Honour, it might be worth just having maybe a two minute adjournment if that's all right? I'm not seeking to delay anything.

PN50

THE DEPUTY PRESIDENT: Is there any objection to that, Mr Skene?

PN51

MR SKENE: Well, two minutes, your Honour, no object if my friends need to confer.

PN52

THE DEPUTY PRESIDENT: Thank you. We'll adjourn for a couple of minutes.

<SHORT ADJOURNMENT [3.32PM]
<RESUMED [3.49PM]

PN53

THE DEPUTY PRESIDENT: I just note for the purpose of the record there have been some further discussions about a means of progressing this particular action. Mr Skene.

PN54

MR SKENE: Yes, your Honour. I appreciate Mr Messenger is in the witness box, perhaps I will just articulate what we reached to briefly.

PN55

THE DEPUTY PRESIDENT: Yes.

PN56

MR SKENE: The parties have reached a position whereby we propose to present a short amount of evidence to you and upon the basis of that evidence press you to issue an interim order of short duration to enable the Commission to consider the matters more fully on Tuesday, if that's convenient to the Commission, and that is a consent position. So perhaps if I can lead a short amount of evidence from
Mr Messenger to satisfy you we say of the jurisdictional requirements of the order?

PN57

THE DEPUTY PRESIDENT: Yes.

**** JEFFREY ROBERT MESSENGER XN MR SKENE
PN58

MR SKENE: If I could just ask if the witness be passed a copy of the application.

PN59

Mr Messenger, you've just been passed a copy of the application. You'll see halfway through the first page there are some grounds set out there, paragraph 1 through to paragraph 15, could you just quickly read that to yourself, please, and just let me know when you've done that?---Yes.

PN60

Sorry, perhaps I will just come back to the formal - what is your name, address and occupation?---Jeffrey Robert Messenger, (address supplied), occupation, industrial relations manager.

PN61

What is your responsibility for the Siemens project at Laverton?---I'm the industrial relations manager for the project.

PN62

Now, Mr Messenger, you've reviewed paragraphs 1 to 15?---Yes.

PN63

Are those paragraphs true and correct?---Yes, they are.

PN64

Your Honour, on that basis it's put by the parties that those paragraphs be considered by consent for the purposes of the interim application. I know my friends have got something they wish to say briefly about that but essentially for the purpose of the interim application that is the evidence of Mr Messenger.

PN65

THE DEPUTY PRESIDENT: Yes, thank you. You were also going to I think to confirm the contractor organisations that are working on the Laverton site,
Mr Skene.

PN66

MR SKENE: Indeed, yes, you're quite right, your Honour.

PN67

Mr Messenger, in paragraph 3 of the application you refer to some contractors - paragraph 2 rather, you refer to some contractors that are engaged by Siemens to assist with performing work for the project. Do you recall sending me an email at 11.07 am this morning?---Yes, I do.

PN68

And in that email you set out some companies that were contractors that were on site on 28 July at Laverton?---Yes, I did.

PN69

Can you please confirm that the following companies are the companies recorded in that email, Central Scaffolding?---Yes.

**** JEFFREY ROBERT MESSENGER XN MR SKENE
PN70

Contract Resources?---Yes.

PN71

Cork Instruments Engineering Australia?---Yes.

PN72

Downer Engineering?---Yes.

PN73

Lenard, I think?---Lenard Electrical.

PN74

Lucon?---Yes.

PN75

MC Labour Hire?---Yes.

PN76

Protek?---Yes.

PN77

Skinner Engineering?---Yes.

PN78

Vaughan Construction?---Yes.

PN79

Western Sheetmetal?---Yes.

PN80

Tyco Australia Pty Ltd trading as Wormald?---Yes.

PN81

Your Honour, for the purposes of the interim order which I will address your Honour in a moment they're the contractors.

PN82

THE DEPUTY PRESIDENT: Yes, thanks, Mr Skene. Cross-examination,
Mr Borenstein? Mr Maddison?

PN83

MR MADDISON: We don't contest the evidence today, your Honour, but we say that no adverse inference should be drawn from that fact. The evidence is not by consent as such, I would just like to make that clear, and if the matter does proceed on Tuesday then we'll reserve our right to cross-examine Mr Messenger on that occasion. If the Commission pleases.

**** JEFFREY ROBERT MESSENGER XN MR SKENE
PN84

THE DEPUTY PRESIDENT: Well, sorry, Mr Maddison, I need to be satisfied that industrial action is happening. At the moment I have - and I need to be satisfied on an interim basis. What happens on Tuesday, if anything happens on Tuesday, is a totally separate set of circumstances. At the moment I have the uncontested evidence of Mr Messenger that there is industrial action happening and that is by way of his confirmation of the relevant paragraphs of the application. In respect of the interim order which is sought and only in respect of the interim order which is sought do you wish to cross-examine Mr Messenger on the evidence that he's given?

PN85

MR MADDISON: No, we don't and we indicated that, your Honour. We don't contest that today but we just wanted to make our position clear in respect to that.

PN86

THE DEPUTY PRESIDENT: Yes.

PN87

MR MADDISON: And perhaps we didn't do that very well.

PN88

THE DEPUTY PRESIDENT: No, I thought you were asking me for - or reserving a right to cross-examining in respect of this current application which is an interim order on Tuesday and I can't make that available to you.

PN89

MR MADDISON: No, sorry, your Honour, that was not our position. Our position is if the matter proceedings and presumably this evidence will still be perhaps something that would be before you and if it was then we'll just simply reserve our right to cross-examine Mr Messenger on that occasion for further orders if it was pressed.

PN90

THE DEPUTY PRESIDENT: Thank you. Mr Terzic.

PN91

MR TERZIC: We're in the same position as the CFMEU and we'll adopt the approach taken by Mr Maddison.

PN92

THE DEPUTY PRESIDENT: That makes it very clear, thank you.

PN93

MR BORENSTEIN: If I might just say for the record that the CEPU is in the same position.

PN94

THE DEPUTY PRESIDENT: Thanks, Mr Borenstein. All right, go ahead - is there anything further for Mr Messenger?

**** JEFFREY ROBERT MESSENGER XN MR SKENE
PN95

MR SKENE: No, your Honour.

PN96

THE DEPUTY PRESIDENT: You can step down, Mr Messenger. Thank you for your evidence.

<THE WITNESS WITHDREW [3.56PM]

PN97

MR SKENE: Obviously, your Honour, just to clarify our position, on Tuesday when we come to that there will be no doubt other evidence everybody wishes to lead but for present purposes it's submitted that you can be satisfied that an interim order should issue and perhaps if I could just take you to the terms of the order and formally review what the changes need to be.

PN98

THE DEPUTY PRESIDENT: Yes.

PN99

MR SKENE: Obviously the first change is in paragraph 1 where the title of the order should become the interim industrial action order. Paragraphs 2.1(b) through to - - -

PN100

THE DEPUTY PRESIDENT: Just one sec, Mr Skene, and I'll have my associate mark up the copy as you go through it.

PN101

MR SKENE: Yes, your Honour. Yes, that's perhaps easiest. So I think the title should become the Siemens Gas Turbine Project (Interim) Industrial Action Order 2006. Paragraphs 2.1(b) through to (e) are to be deleted. In paragraph (f) it should read employees of Siemens and employees of subcontractors engaged by Siemens listed in annexure A who are eligible, et cetera. 2.2 is to be deleted. In 2.3 the reference to 2.1(f) becomes a reference to 2.1(b). Paragraph 3.1 - sorry, clause (f) will become clause (b). 3.1, the words in the first sentence, "and organisations" should be deleted so it should just be all persons in clause 2.1(b) and the words 2(f) should be deleted.

PN102

3.2 and 3.3 should be deleted. 4 should be deleted in its entirety. 5 remains the same. It should become 4 indeed. In 6, 6.1 can be deleted. 6.2 obviously becomes just 6 and I suggest - becomes 5, indeed. I suggest perhaps that we just include a time for the order to be posted on noticeboards at 6 am on Monday.

PN103

THE DEPUTY PRESIDENT: It's the 31st I think.

PN104

MR SKENE: Yes, the 31st, thank you, your Honour. The order will come into effect at 7.30 am on that day, being Monday, and shall remain in force for a period until 5 pm on Tuesday and whilst the order doesn't need to say this, obviously if we're unable to sort things out on Tuesday we may press for further interim orders or what have you, but that's just to avoid any doubt about that.

PN105

THE DEPUTY PRESIDENT: Yes.

PN106

MR SKENE: So in my submission jurisdiction has been met for an order to be made in those terms and we would seek that the substantive hearing and determination of the matter be adjourned to a time convenient to the parties prior to the expiry of the interim order and beyond that I think you have anything else, your Honour, that's all I think I need to say.

PN107

THE DEPUTY PRESIDENT: No, that's fine, thanks, Mr Skene. Mr Maddison.

PN108

MR MADDISON: Thank you, your Honour. Your Honour, just for the purpose of the record the union denies any allegations to the extent there is any allegations against the unions, that is acting through our officials or shop stewards before you. In respect of our members who would be captured by the interim orders we make no concessions on their behalf but in saying that we do not oppose the making of the order, the interim order in the terms put to you by Mr Skene.

PN109

THE DEPUTY PRESIDENT: Thank you.

PN110

MR MADDISON: Thank you, your Honour.

PN111

MR TERZIC: We'd adopt the submission made by Mr Maddison in respect of the AMWU.

PN112

THE DEPUTY PRESIDENT: Thanks, Mr Terzic. Mr Borenstein.

PN113

MR BORENSTEIN: Yes, your Honour. I mean we reserve all our rights in respect to this and make no admissions.

PN114

THE DEPUTY PRESIDENT: Well, you don't need to reserve them,
Mr Borenstein, they'll be there for you to use when you want to.

PN115

MR BORENSTEIN: Thank you, your Honour.

PN116

THE DEPUTY PRESIDENT: Anything further, Mr Skene?

PN117

MR SKENE: No, nothing further, your Honour.

PN118

THE DEPUTY PRESIDENT: All right. Pursuant to section 496(6) of the Act an interim order in the form sought will be made. I am satisfied that the jurisdictional prerequisites for the making of an interim order are met. Specifically I am satisfied on the basis of the evidence provided that industrial action is happening, threatened, impending or probable, but I make the point that the Commission's satisfaction with respect to that particular prerequisite is limited to the circumstance of the issue of an order under section 496(6) of the Act which is an interim order.

PN119

The order that will issue, as I have stated, will be in the form sort and will apply to employees of Siemens and employees of those contractors which were attested to be currently both involved in the industrial action at the Laverton site and currently carrying out - sorry. The order will apply to the employees of contractors who are currently carrying out work on the Laverton site as attested to in the evidence that's before the Commission of Mr Messenger. The order will take effect at 7.30 am this coming Monday morning which is 31 July and will expire at 5 am on Tuesday, the 8th at - sorry, Tuesday, 1 August 06 at 5 pm and I will list the matter for hearing of the substantive application at 10 am on Tuesday morning, 1 August. Is there anything further?

PN120

MR SKENE: Only that I will provide to your chambers, your Honour, a form of annexure A that sets out those companies names.

PN121

THE DEPUTY PRESIDENT: All right. Well, I will simply have my associate liaise with you when we have adjourned, Mr Skene.

PN122

MR SKENE: Yes, thank you.

PN123

THE DEPUTY PRESIDENT: The matter is adjourned. Thank you.

<ADJOURNED UNTIL TUESDAY 1 AUGUST 2006 [4.05PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JEFFREY ROBERT MESSENGER, SWORN PN45
EXAMINATION-IN-CHIEF BY MR SKENE PN45
THE WITNESS WITHDREW PN96