RE2007/2204, Transcript of Proceedings [2007] AIRCTrans 186 (17 April 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16738-1

COMMISSIONER LARKIN

RE2007/2204

TRANSPORT WORKERS’ UNION OF AUSTRALIA
AND
DHL EXEL SUPPLY CHAIN (AUSTRALIA) PTY LTD
s.772(2) - Appl’n for orders by Commission about operation of Part 15
(RE2007/2204)

SYDNEY

11.51AM, FRIDAY, 30 MARCH 2007

Continued from 29/3/2007

PN102

MR A VERNIER: I appear on behalf of the company in this matter and with me I have MS L BROOKS, the National HR Manager.

PN103

MR M AIRD: I appear on behalf of the Transport Workers' Union, New South Wales. With me today is the organiser for the site, MR S CROSBY and the legal officer for the TWU, MR O FAGIR.

PN104

THE COMMISSIONER: Thank you. Mr Aird, do you have a view on Mr Vernier's application for leave?

PN105

MR AIRD: We won't oppose the application.

PN106

THE COMMISSIONER: Leave is granted.

PN107

MR VERNIER: Thank you, Commissioner. Commissioner, this matter was re-listed pursuant to a fax that the Commission received from Ms Brooks. I understand that a hearing took place yesterday in relation to this particular matter and that certain orders were made by yourself. Originally, the company had requested that the hearing be vacated because of the unavailability of Ms Brooks. That request was not acceded to. Ms Brooks was not in the Sydney vicinity, but was in Leura yesterday. The purpose of our re-listing, Commissioner, as indicated by your order, is to have liberty to set aside the orders made by yourself. You've indicated that the company has that opportunity and the company would like to take that opportunity this morning.

PN108

THE COMMISSIONER: To set aside or amend, Mr Vernier.

PN109

MR VERNIER: To set aside and in the alternative, amend.

PN110

THE COMMISSIONER: It's just that the correspondence from Ms Brooks doesn't state that. The correspondence states that the order is not clear in its operation and we are seeking to avoid confusion in our workplace, so what is it? To set it aside in toto or to clarify?

PN111

MR VERNIER: The first limb will be to set aside, Commissioner, and if that's not granted, then whatever needs to happen in order to clarify the orders. Mr Aird provided the company with the evidence that was produced yesterday before yourself and we only had that in the last probably 20 minutes. I haven't had a real lot of time to digest the evidence.

PN112

THE COMMISSIONER: I thought my associate - TWU1 and TWU2?

PN113

MR VERNIER: Yes. Was it your associate?

PN114

THE COMMISSIONER: Yes. We had it copied, ready for this morning and I thought we had given it to the parties as soon as they arrived, but if you haven't had a chance to peruse it - did you seek a chance to peruse that material?

PN115

MR VERNIER: I would like a chance, if I can have a chance, Commissioner. There were three documents, well, two new documents which is the summary of the grounds and a statement of Mr Sam Crosby which obviously we've had no opportunity to seek instructions on, on the content of the statement.

PN116

THE COMMISSIONER: I think it's better for you to take that opportunity. You would be hard pressed to put submissions to me if you don't have submissions in relation to that material.

PN117

MR VERNIER: If that is the case, then, Commissioner, would it not be appropriate, because I have had a quick glance at it and there are a lot of people named in this particular statement from which we need to get information, there are a number of conversations referred to in here in the statement which I have Ms Brooks here today in order to provide some answers to the statement. Would it not be more appropriate if we can have a day or so in order to put on a response to this statement, if this statement - as the statement has been accepted by you yesterday, Commissioner?

PN118

THE COMMISSIONER: Mr Vernier, the application concerns the TWU seeking orders. On my understanding, officials of the TWU have been issued with permits. On my understanding, there is nothing precluding them from entering the site. I have no application from DHL to revoke or change those permits in any way. On my understanding, it has never been queried that they have a right to enter the site. The issue has been with me for approximately a month, but the issue between the parties has been going on longer than a month and I don't think it's been disputed that they have difficulty exercising their right to enter the site.

PN119

Now, your submissions may go to something else, but that's my understanding. Seeking a period of time to respond to what Mr Crosby's allegations are, the nuts and the bolts of this matter really is that on my understanding the TWU have a right to enter the site and on my understanding again, they're being refused that right and hence the orders that they sought yesterday. Now, Ms Brooks did contact my office. She was at a conference.

PN120

Now, I understand the difficulties that she had yesterday, but I had a request for an urgent listing and I listed it, the same as DHL requested this morning to have an urgent listing and I agreed and I listed the matter today urgently, so DHL could put to me the issues they have with that order. Now, I wonder why I have to adjourn to another day for reply in relation to who said what, when a TWU official entered or attempted to enter the premises?

PN121

Now, Mr Crosby wasn't cross-examined, I understand that, but I don't think we even get there, do we, unless the company tells me that they have never precluded the TWU from entering the site and if that's the case, then if the order needs modification in regards to times or dates or anything else, then I will definitely hear you, but what is the argument?

PN122

MR AIRD: Commissioner, I apologise. I know you've asked a question of the - I am not sure if he's the applicant or the respondent now, given that the company has brought the matter back on. I appreciate you ask the question of DHL, but I just think it's incumbent on me to advise the Commission of the current state of play, so the Commission is aware of what is occurring on the site at the moment. Commissioner, the order is in place and they're here applying to have that order overturned and I would just seek to advise the Commission that they're here in bad faith because they've already failed to comply with the order. They have given instructions to managers at the site at Matraville to not comply with the order and we sought right of entry this morning which was denied.

PN123

THE COMMISSIONER: Gentlemen, if you would like to have arguments, I might adjourn and you can discuss it. Mr Aird, you're giving me submissions and I will hear from you - - -

PN124

MR AIRD: I just wanted to advise you that the order was in place from yesterday afternoon. We sought access in compliance with that order and that order was denied. I think there is some significance, because I think it goes to the parties being here in bad faith to begin with, if they're not going to comply with an order of the Commission. I just wanted to advise you of the state of play, of what's occurring at the moment on site. Thanks, Commissioner.

PN125

THE COMMISSIONER: Mr Vernier.

PN126

MR VERNIER: In light of what you have said, Commissioner, can I take 15 minutes of your time to consider the documents that were handed to us this morning?

PN127

THE COMMISSIONER: Yes. I think that might be appropriate. Fifteen minutes or 20 minutes?

PN128

MR VERNIER: I will take as much as you can give me. If 20 is it, I will take that, Commissioner.

PN129

THE COMMISSIONER: It's 12 o'clock now. We will adjourn until 20 past 12 and you might also seek to have a word with Mr Aird if you need anything clarified from his perspective and I would encourage that the parties possibly do have a talk, after you've had an opportunity to view all the material that's relevant to the file that I've had for over a month.

PN130

MR VERNIER: Thank you, Commissioner.

PN131

THE COMMISSIONER: The Commission stands adjourned.

<SHORT ADJOURNMENT [12.01PM]
<RESUMED [12.35PM]

PN132

THE COMMISSIONER: Have you had an opportunity to - - -

PN133

MR VERNIER: Yes. Thank you, Commissioner. I've had an opportunity to go through the statement. Ms Brooks, who is one of the persons named in the statement, throughout the statement, has informed me that there are some inaccuracies in the statement and also Ms Tritsardis is also another person named in the statement and she also has informed me that there are inaccuracies in that statement. The extent of the inaccuracies, obviously we would need more time, but the two ladies have had the opportunity to quickly scan the statement and provide me with just some basic instructions that there are some inaccuracies.

PN134

THE COMMISSIONER: Inaccuracies going to - - -

PN135

MR VERNIER: What was said.

PN136

THE COMMISSIONER: The terms used, not the actual situation itself?

PN137

MR VERNIER: It's more what was said, Commissioner.

PN138

THE COMMISSIONER: Yes.

PN139

MR VERNIER: We re-listed this matter and we are asking that these orders be set aside and the general grounds that we rely upon, Commissioner, is that these orders are made beyond your jurisdiction. They are made ultra vires. I would like to take you through the Act, Commissioner. Now, you've made an order pursuant to section 772 and primarily that section gives you the power to make orders, but there are conditions and the chief condition that we rely upon is that the order must not confer rights that are additional to or inconsistent with rights exercisable under this part which is part XV, the right of entry part, so that's where we have the problem, Commissioner. We say that your orders - - -

PN140

THE COMMISSIONER: Beyond part XV?

PN141

MR VERNIER: Yes. The union seeks access pursuant to a suspected breach of the Act and that is dealt with under section 747. Under section 748, which is - it sets out what the person or with the permit that can come on the site can do, section 748(2) and subsection (b) provides that:

PN142

Whilst on the premises, the permit-holder may for the purpose of investigating the suspected breach -

PN143

and then (b) says -

PN144

during working hours interview the following persons about the suspected breach.

PN145

And they are either employees who are members or eligible to be members, so if the union comes on site to investigate a suspected breach, then it can interview its members or employees eligible to be its members, but before it comes on site, under section 749, the union must give a notice and it must be a written notice and section 749(2) sets out the conditions that must be satisfied in that notice and it's required to be in writing and required to set out the specific particulars of the suspected breach, so that's a requirement which can't be gotten around, cannot be avoided under part XV and that's clear from section 749(1) which says:

PN146

Section 747 does not authorise entry to premises unless the conditions in subsection 2 -

PN147

which are the written notification conditions -

PN148

are satisfied.

PN149

Subsection 3 appears to be irrelevant in these proceedings because there's no exemption certificate. The ability to hold discussions with employees is contained in section 760, but that right to hold discussions with employees can only be utilised by the union if the work is being carried out that is covered by an award or collective agreement binding on the union.

PN150

THE COMMISSIONER: Sorry, say that to me again. Where are you? 760?

PN151

MR VERNIER: I am looking at 760, Commissioner, so this is the ability to come on just to hold discussions with employees. I just want to rule that out, that they can't do that. I am looking at 760, Commissioner.

PN152

THE COMMISSIONER: 760, where?

PN153

MR VERNIER: (a), that's the first condition, so an order for the union to come on site to hold discussions with employees, just to hold discussions, the work that the employees do must be covered by an award or collective agreement that is binding on the union.

PN154

THE COMMISSIONER: But there's an award that's relevant to this site, isn't there?

PN155

MR VERNIER: No, no. There is a collective agreement that has been lodged with the Office of the Employment Advocate, but the union is not a party to that agreement. Therefore they have - - -

PN156

THE COMMISSIONER: There was a state agreement, though?

PN157

MR VERNIER: There was a state agreement.

PN158

THE COMMISSIONER: Which the TWU was party to.

PN159

MR VERNIER: Yes, that's correct.

PN160

MR AIRD: Can I just save the Commission's time, Commissioner? We're not seeking access under 760. We're seeking access quite clearly under section 747. That's the application. We're not contesting access under 760, so we concede that the rights of access are under section 748, the particular section 748(2)(b) which gives us the right to interview members and people who are eligible to be members, so it's not in contest.

PN161

MR VERNIER: Okay. Well, that's good. The only problem there is that the order refers to discussions. That's my issue. It is clear, Commissioner, that you cannot make any order for the union to hold discussions.

PN162

THE COMMISSIONER: Sorry, which part of the order was that?

PN163

MR VERNIER: Subsection 2, the first word, the second line, the word discussions.

PN164

THE COMMISSIONER: I will hear Mr Aird on that, but please continue.

PN165

MR VERNIER: Yes, yes, so the Act clearly draws a distinction between holding an interview which is what the union can do when they seek access to investigate a suspected breach and that's under section 748(2) and holding discussions with employees which is under section 760 because the union has no power to hold discussions because it's not a party to any industrial instrument that applies to that site.

PN166

THE COMMISSIONER: That's been withdrawn, anyway.

PN167

MR VERNIER: Yes, but I just wanted - your order refers to discussions, unfortunately, Commissioner, so that would make it automatically - - -

PN168

MR AIRD: An interview or discussion is - - -

PN169

THE COMMISSIONER: Let's just do submissions, all right?

PN170

MR AIRD: I apologise, Commissioner.

PN171

THE COMMISSIONER: Mr Aird, you have regard to what's being put and then you can reply and any amendment that you would seek from the order, you put to me. Yes, I am sorry.

PN172

MR VERNIER: No, no. In relation to the first order, Commissioner, you make a blanket order for a right of access for two individuals. You make absolutely no consideration, you make no order that they must comply with the notice requirements under the Act and as Mr Aird got up and said this morning, prior to our break, they telephoned the company last night to seek access this morning, so there was no intention to comply with the written notice requirements under the Act. Clearly, Commissioner, you cannot with all due respect make an order in the terms of order 1. The power under section 772 is absolutely clear that you must not confer rights that are inconsistent or additional to the rights exercisable under this part.

PN173

THE COMMISSIONER: Yes, but an order under - the order then would need amending to state that the gentlemen could enter the premises and noting the site at Matraville, New South Wales, post code 2036, on 30 March 2007 or such other date with at least 24 hours' notice given.

PN174

MR VERNIER: And any other requirements under the Act.

PN175

THE COMMISSIONER: Well, just to get your date, the notice issue, the order could reflect that.

PN176

MR VERNIER: That's right, which is the basic right under the Act, so you're repeating what's under the Act. It's got to be 24 hours' notice.

PN177

THE COMMISSIONER: An order of the Commission can operate from the date of the order.

PN178

MR VERNIER: Yes, but you can't confer extra rights on the union to avoid the 24 hours' notice.

PN179

THE COMMISSIONER: But an order from the Commission can be an order to enter on the date that the order is made by the Commission.

PN180

MR VERNIER: No. Unless they've given the 24 hours' written notice, you
can't - - -

PN181

THE COMMISSIONER: I think Senior Deputy President Lacy issued an order of that nature. It went up to a Full Bench on appeal and on my understanding of the Full Bench decision, that part of his Honour's order wasn't questioned, nor was it overturned. The part of the order, it's Australian Taxation - - -

PN182

MR VERNIER: Yes, I was going to take you to that, too. Let's have a look at the order in that case, Commissioner. That order is clear. It gives the 24 hours' notice in the order.

PN183

THE COMMISSIONER: No, what I was saying to you was that the order was dated 18 October 2006 and on my understanding, it's been quite a few months since I read both his Honour's decision and the Full Bench, I could stand corrected, that his Honour heard it on the 18th of - - -

PN184

MR VERNIER: Your order can come into effect now, but what you can't do, Commissioner, is you can't say that the union can avoid the 24 hours' notice that's required under the Act.

PN185

THE COMMISSIONER: All right. I won't - - -

PN186

MR VERNIER: Let's have look at - - -

PN187

THE COMMISSIONER: No, it's okay. I am going to say I won't interrupt your submissions.

PN188

MR VERNIER: I was going to take you to the case. The Full Bench makes it 100 per cent clear that you can't get around the requirements of the Act. Do you have the case in front of you, Commissioner?

PN189

THE COMMISSIONER: Yes, I do.

PN190

MR VERNIER: Do you want to have a look at the order made by the Senior Deputy President? Have a look at paragraph 15, Commissioner, of the decision.

PN191

THE COMMISSIONER: Not the order?

PN192

MR VERNIER: No, no, paragraph 15 of the decision under appeal and that sets out - - -

PN193

THE COMMISSIONER: This for the record is print PR974384.

PN194

MR VERNIER: Yes. In that order, his Honour clearly reflected the 24 hours' notice by saying that they could get access with at least 24 hours' notice, so his Honour was simply repeating the requirements under the Act. That is one thing, with all due respect, Commissioner, you cannot get around or avoid, irrespective of when you make your order effective, so the first order that you have made, Commissioner, is actually made ultra vires, that's without power.

PN195

THE COMMISSIONER: Yes, his Honour actually heard it on 17 October at 4 pm and issued the order for the entry for the 18th.

PN196

MR VERNIER: Yes, but the effect of the order is that the union in that case still had to give 24 hours' notice.

PN197

THE COMMISSIONER: Yes, I take your point.

PN198

MR VERNIER: The order actually says that. Now, part of the order in the second paragraph, Commissioner, is you refer to the lunch room. Our submission is you cannot nominate a room. You have no power to nominate a room and in these proceedings, at this stage no-one can make an application as to what room to nominate. Let me explain. Section 751(3), Commissioner, have you got that?

PN199

THE COMMISSIONER: Yes, I have.

PN200

MR VERNIER: The division does not authorise a permit-holder to enter or remain on premises if the affected employer requests the permit-holder to do either or both, conduct interviews in a particular room or area of the premises or take a particular route to that room and, (b) the request is a reasonable request and the permit-holder fails to comply with the request, so the way that - - -

PN201

THE COMMISSIONER: What did DHL request?

PN202

MR VERNIER: That's the point. There has been no request.

PN203

THE COMMISSIONER: Well, what does it request, then?

PN204

MR VERNIER: It doesn't request anything at this stage because it hasn't been served with a notice for anyone to come on board or come on site and in any event, Commissioner, I will get to it, you don't actually have the power to make that order, but let me just continue with this, so if the union gets to come on site, DHL can tell the union where to conduct its interviews and provided that's a reasonable request, then there is no issue. Now, if the union thinks that that's not a reasonable request, what does it do? Let's turn to section 771 or just before we go, the note under section 751(3) says:

PN205

The Commission may make an order under section 771 if the request is unreasonable.

PN206

Okay, so that's the note under section 751(3) which I just read out to you which gives the company the power to select a room that's reasonable. Now, if the union thinks that that room is not reasonable, then it can make an application under 771, but in order to trigger that application, the company must first indicate a room. You do not have a single shred of evidence before you, Commissioner, that the company has actually indicated any room upon which the union can meet to interview employees, you have none. In any event, even if you did have evidence, unfortunately, Commissioner, you do not have the power to make that order. Subsection 3 of 771 says that:

PN207

The powers of the Commission under this section are exercisable by, (a) the president or, (b) a Presidential member assigned by the President or a Full Bench.

PN208

THE COMMISSIONER: Sorry?

PN209

MR VERNIER: 771(3), so if you want to make an order regarding where or what's reasonable in order for the union to conduct interviews, you need to be the President, a Presidential member or a Full Bench. That's 771(3).

PN210

THE COMMISSIONER: Yes, continue.

PN211

MR VERNIER: And in any event, even the President himself cannot make an order under that section just yet because the company has not nominated a room. In order to trigger that section, the company must nominate a particular room and then the union must allege that that is unreasonable, so order 2 is clearly with all due respect beyond your power and beyond the power of this Commission and any member of this Commission, even a Full Bench, at this stage. You cannot nominate the lunch room.

PN212

The other issue, Commissioner, is you have made an order that management and/or management representatives shall not remain in the vicinity to enable employees to hold conversations with Mr Crosby and Mr Hastings. I can't see any power in which you have to make that order as well. That's part of order 2. I can't find any power in this Act that says that the management can't be there. Certainly if it hinders an investigation, maybe, but there's no evidence that that would hinder the investigation. You have not got a shred of evidence to that effect and the other issue, Commissioner, is the first line of order 2:

PN213

DHL is to permit employees to hold discussions.

PN214

I don't think you can - in my view, you cannot make that order. That is like an injunctive order against DHL that it is to permit. What you can do is that DHL may notify in accordance with the appeal in the ATO case, DHL can provide a notification, that's what I can understand, but you can't make an order in those terms that it is to permit. That's a general injunctive order and invalid and beyond your power, so in effect, Commissioner, all of your orders that you made yesterday fall away because they fail to comply with part XV of the Act.

PN215

The first order is extremely wide and has no notification requirements or other requirements that are needed under the Act. The second order effectively injuncts the company to permit employees, nominates a lunch room which is completely and totally outside of the power of this Commission at this stage and then injuncts management from - creates an injunction against management from attending those meetings. Now, with all due respect, once orders 1 and 2 are knocked out which I think, Commissioner, you have no option apart from re-writing them to something which may comply with the Act, order 3 is automatically knocked out, so that effectively takes care of all of your orders yesterday and in relation to what has occurred on site this morning, there has been a clear trespass by the union on the company's site as a result of these orders which the company does not take too kindly.

PN216

Mr Crosby may well laugh, but there's no evidence that the union provided any notice to enter the premises today and to rely upon orders which are ultra vires is not notice. Now, Commissioner, we say that on the basis of these submissions and the way that the Act is formulated, the orders that you have made are outside your power and clearly must be set aside. Now, if you have intention to amend those orders, then I would seek permission to make submissions on what those amendments may be, but on the face of it, there is really no argument that these orders are beyond power and I will rely upon the ATO case that you referred to, Commissioner, and I would rely upon what the Full Bench actually said in its conclusion:

PN217

We could make an order under section 772 providing that Mr Lapidos might enter the ATOs Chermside premises on at least 24 hours' notice for the purpose of investigating suspected breaches of the agreement and interview any call centre employee in the room designated by the ATO for that purpose for a maximum of 30 minutes.

PN218

That's what the Full Bench said could happen which is basically repeating the union's obligations under the Act. Your orders go well beyond what the Full Bench has actually said you can do, so in light of these submissions, I ask that orders 1 and 2 be set aside, order 3 then becomes irrelevant because there are no orders and we ask for these proceedings to be dismissed.

PN219

MR AIRD: Commissioner, can I just at this stage seek a brief adjournment to prepare submissions on this matter?

PN220

THE COMMISSIONER: Well, we might adjourn for luncheon. Would that be appropriate?

PN221

MR VERNIER: I might note that just for the record, Commissioner, with all due respect, the company wasn't given any natural justice yesterday because the proceedings went ahead, despite Ms Brooks' fax to the Commission that she couldn't make it. Don't forget this was listed as a matter of urgency by the union yesterday. I would have thought that the basic requirements of the Act would be within the union's knowledge at this stage, so if the union gets an adjournment, make it a luncheon adjournment, then we would want a right of reply on that particular statement, Commissioner.

PN222

THE COMMISSIONER: I am sorry, I've missed that. A right of reply on?

PN223

MR VERNIER: Well, we are dealing with evidence which we cannot respond to. We have been given no opportunity to respond to the evidence that is before you.

PN224

THE COMMISSIONER: The evidence hasn't been raised, though. Your argument is going to the order, is it not?

PN225

MR VERNIER: It is, it is, but if you're going to rely upon the evidence in assessing what orders have to be made, we would want - - -

PN226

THE COMMISSIONER: At the moment, you've pointed out to me what you say is beyond jurisdiction.

PN227

MR VERNIER: Correct.

PN228

THE COMMISSIONER: I presume the union is going to reply to what your submissions are. Why don't we wait and see and furthermore, my associate and I would like to have some lunch.

PN229

MR VERNIER: That's not an unreasonable request.

PN230

THE COMMISSIONER: Thank you. I'm glad you don't think the Commission is unreasonable. The Commission stands adjourned until a quarter past two. Thank you.

<LUNCHEON ADJOURNMENT [1.02PM]
<RESUMED [2.26PM]

PN231

THE COMMISSIONER: Yes, Mr Aird.

PN232

MR AIRD: Thank you, Commissioner. I apologise for my attire today, which I didn't do earlier. I was at a training course today. Commissioner, we will be relatively brief. Firstly on the submissions by DHL in regards to paragraph 1, we don't concede at all that the Act doesn't provide for entry pursuant to orders of the Commission. We note that on 16 March that the company was faxed an entry permit with the union seeking entry on Monday, 19 March and Tuesday, 20 March. We note that an entry permit was sent to the company, faxed to the company on 23 March.

PN233

THE COMMISSIONER: You mean a notice?

PN234

MR AIRD: An entry notice pursuant to section 738 was sent to the company on 23 March seeking right of entry on Monday, 26 March and Tuesday, 27 March. We don't concede that further entry is required, but we do propose, to remove all doubt, that paragraph 1 be amended on the following basis, that the full stop be removed from the end of Workplace Relations Act 1996 and the words:

PN235

On the basis of the union providing 24 hours' notice -

PN236

be added to paragraph 1.

PN237

THE COMMISSIONER: On the basis of the union -

PN238

MR AIRD: Providing 24 hours' notice. In regards to paragraph 2 of the order, Commissioner, again we don't concede at all that it was beyond power, but we propose the following amendment to paragraph 2 and we propose that paragraph 2 now read in the following manner and I commence:

PN239

That DHL EXEL Supply Chain (Australia) Pty Ltd is to allow Sam Crosby and Graham Hastings to hold interviews with members and employees eligible to be members of the Transport Workers' Union of Australia.

PN240

THE COMMISSIONER: And persons eligible?

PN241

MR AIRD: And employees eligible to be members of the TWU of Australia, Commissioner.

PN242

THE COMMISSIONER: Of the TWU Australia, was it?

PN243

MR AIRD: I think Transport Workers' Union would suffice, the Transport Workers' Union of Australia. Further, that:

PN244

DHL management and representatives of management shall not remain in the vicinity of the interviews, shall not monitor the interviews and shall generally provide access in an appropriate and reasonable manner given the nature of the suspected breach.

PN245

THE COMMISSIONER: Have you got this written down at all?

PN246

MR AIRD: Yes, I have, but you probably won't be able to read my hand-writing.

PN247

THE COMMISSIONER: All right, you had better give it to me slowly:

PN248

Further, that DHL management and members of management -

PN249

MR AIRD: And representatives of management shall not remain in the vicinity of the interviews.

PN250

THE COMMISSIONER: Shall not?

PN251

MR AIRD: Shall not, shall not remain in the vicinity of the interviews and I continue, comma:

PN252

Shall not monitor the interviews and shall generally provide access in an appropriate and reasonable manner given the nature of the suspected breaches.

PN253

THE COMMISSIONER: Breaches of the Act?

PN254

MR AIRD: Yes, Commissioner. It's the submission of the TWU that this is consistent with the provisions of section 747. Indeed, it's the submission of the Transport Workers' Union that it's indeed necessary to give effect to section 747 of the Act and we say that given the nature of the breaches, what also needs to be taken into account in this case as an agent that the breaches that are alleged, particularly ones that include allegations of intimidation. Commissioner, we would submit that that is the only reasonable interpretation of the powers available to you to give effect to section 747, but we would say - - -

PN255

THE COMMISSIONER: Well, the application is under 772, isn't it, disputes about the operation of the part?

PN256

MR AIRD: To give effect to 747 to investigate a suspected breach, Commissioner, but we would say that if the submissions to the company are accepted in regards to your powers under the Act which we obviously don't accept, then an order should still issue and if you accept the submissions of the company, then an order should still issue on the basis that paragraph 2 of the order simply be amended to say that - I will start again, Commissioner.

PN257

If you accept the submissions of the company that you are unable to qualify the scope of the right of entry available to the union under section 747, then the order should still issue on the basis that DHL EXEL Supply Chain (Australia) Pty Ltd shall allow Sam Crosby and Graham Hastings to hold interviews with members and employees eligible to be members of the TWU of Australia to investigate suspected breaches of the Act.

PN258

THE COMMISSIONER: To investigate suspected breaches of the Act? Did I get that right?

PN259

MR AIRD: Do you want me to go through how I would seek paragraph 2 to be worded, Commissioner?

PN260

THE COMMISSIONER: What you're doing is you're putting two propositions to me. Your first amendment is on the basis that I don't accept the DHL submission that part 2 of the order and I paraphrase this, I'm sure I will be corrected if I am wrong, that paragraph 2 is beyond power because it crosses over into section 771 and the occupier of the premises has not made any request in any event, but even if there was a request to be determined, only a Full Bench or President or Presidential member can exercise those powers to nominate particular areas, so if that's accepted, then your alternative is that paragraph 2 of the order should read the DHL EXEL Supply Chain (Australia) Pty Ltd shall allow Mr Crosby and/or Mr Hastings to hold interviews with members and employees that are eligible to be members of the TWU of Australia to investigate suspected breaches of the Act. Did I get that right?

PN261

MR AIRD: No, Commissioner. If I can just clarify, I proposed - the initial notice would have proposed adjustment that we were putting forward.

PN262

THE COMMISSIONER: Yes, that's if I don't accept the - - -

PN263

MR AIRD: I thought you were initially referring to the original draft order because the proposals that we propose for number 2 did not turn on people being directed to the lunch room and the amended proposals to paragraph 2 that I've put forward, it does provide for some qualifications on the employer about how right of entry to investigate a suspected breach should be granted to the union, but it doesn't we say in any way infringe 771 by seeking that we be placed in the lunch room as was in the original order.

PN264

THE COMMISSIONER: All right. Well, I thought your first amendment - - -

PN265

MR AIRD: We say in our amended - - -

PN266

THE COMMISSIONER: Yes, I didn't read out the first one. The first one is if I don't accept those submissions, then you're saying that representatives of management not to stay in the vicinity, but you don't mention lunch room at all.

PN267

MR AIRD: No.

PN268

THE COMMISSIONER: So the next alternative amendment you say is if I do accept that that's crossing over into the powers under section 771, that was the amendment that I read to you.

PN269

MR AIRD: Yes, Commissioner.

PN270

THE COMMISSIONER: Yes, I just cut through the chase, I didn't read both, but the first one concerns management not being in the vicinity and what have you. The next one is a straight cut as in shall allow the two gentlemen to hold interviews with members and employees eligible to be members of the TWU to investigate the suspected breach and then I presume 3 would stay, post a copy of the orders and what have you and 4 I would presume would be removed.

PN271

MR AIRD: Yes, Commissioner.

PN272

THE COMMISSIONER: All right, so you're seeking an amendment to 1 on the basis of the union providing 24 hour notice.

PN273

MR AIRD: I suppose we're conceding to amendment to that to remove all doubt, that it be amended on that basis, Commissioner.

PN274

THE COMMISSIONER: Yes.

PN275

MR AIRD: That's my submissions, Commissioner, unless you have any further questions.

PN276

THE COMMISSIONER: No. Thank you, Mr Aird. Mr Vernier.

PN277

MR VERNIER: Well, Commissioner, it looks like there's no challenge to all of the submissions that we've made today. It looks like the union seems to concede that the orders that you in fact made yesterday were outside of your power. Simply getting up and saying we don't accept that they weren't made properly, then that is - the union has pointed to nothing in the Act which enables you to make the orders that you made yesterday. I have pointed out to you the sections in the Act which indicate that you cannot make the orders that you made yesterday and I've indicated, also taken you to the ATO case which was heard by a Full Bench which gives you guidance as to the types of orders that you can make in one of these proceedings. Our position is we've come here to set aside these orders. We have not been given an opportunity to be heard on the matter in the whole.

PN278

THE COMMISSIONER: You've been given an opportunity today.

PN279

MR VERNIER: Well, Commissioner, I thought you limited my submissions to setting aside these orders and I've made my submissions based on the sections of the Act.

PN280

THE COMMISSIONER: I see. Yes, all right.

PN281

MR VERNIER: So once these orders are set aside, we're sort of on a level playing field then, that should orders be made, where is the evidence that the order should be made? We haven't had a chance to test the evidence. If the company turned up yesterday, they would have had the opportunity to test the evidence. They probably would have been given the opportunity to put on evidence in response.

PN282

THE COMMISSIONER: But you acknowledged that the TWU have permits, the two gentlemen have permits.

PN283

MR VERNIER: I assume they do.

PN284

THE COMMISSIONER: Well, I don't think - seek instructions. It's never been raised with me that they don't.

PN285

MR VERNIER: That's not in issue.

PN286

THE COMMISSIONER: No, so they have permits, so they have a right of entry. No-one has sought to revoke their permits, have they?

PN287

MR VERNIER: No.

PN288

THE COMMISSIONER: Has anybody sought to amend the permits?

PN289

MR VERNIER: Not as far as I'm aware.

PN290

THE COMMISSIONER: No. The complaint is, in relation to the orders, the complaint is that there should be 24 hour notice. If the TWU gave DHL 24 hours' notice, would the union be able to exercise the right of entry on the site?

PN291

MR VERNIER: I don't know. If they give a proper notice, then maybe, but the other issue - - -

PN292

THE COMMISSIONER: No, not maybe. If they've got a permit and they give the notice, would they be allowed entry onto the site?

PN293

MR VERNIER: But they're alleging a suspected breach of the Act. Under the Act, they have to prove that. If they want an order, they have to prove it.

PN294

MR AIRD: A suspected breach.

PN295

THE COMMISSIONER: It's a suspected breach and this issue has been raised previously with the parties, so it's no surprise that the issue concerns the voting on a collective agreement. I mean, it's out there. That's been the issue since I've had this file. Now, I think the TWU have quite plainly stated that they seek to investigate a suspected breach of the Act.

PN296

MR VERNIER: Section 754, Commissioner, can I direct you to that section:

PN297

Whenever it is relevant to determine whether a permit-holder had reasonable grounds for suspecting a breach as mentioned in section 747, the burden of proving the existence of reasonable grounds lies on the person asserting the existence of those grounds.

PN298

Therefore the burden lies on the union to prove those reasonable grounds. We have not had - - -

PN299

THE COMMISSIONER: A suspicion.

PN300

MR VERNIER: Reasonable grounds.

PN301

THE COMMISSIONER: Grounds for that suspicion.

PN302

MR VERNIER: That's right, and we haven't had an opportunity to test whatever evidence the union is putting to you on that ground, on those reasonable grounds. Today we listed this - well, I indicated we would be seeking to set aside your orders and with all due respect, I think that these orders that were made were made without power.

PN303

THE COMMISSIONER: Yes, on the basis of what submissions you put to me.

PN304

MR VERNIER: Yes, which have not been challenged in any way by the union and are consistent, my submissions are consistent with the Full Bench decision. Now, if those orders are set aside, we are here as if we are yesterday, where we have a hearing before you to decide whether you should make orders, so the issue is should you make any orders in this case once these orders are set aside and what, to what extent should those orders be? What are the terms of the orders? Now, in order to do that, with all due respect, I would have thought that we need some evidence to comply with section 754 which shows the existence of reasonable grounds in relation to the suspected breach and if that evidence is in the statement of Mr Crosby, I would have thought the company may have an opportunity to test that statement or to respond to that statement, so setting aside the orders is one aspect. Making other orders, we're sort of back to square one, Commissioner.

PN305

THE COMMISSIONER: DHL sought a re-listing of this matter on the basis that the order was not clear and that they sought to avoid confusion and that's the reason the matter was listed.

PN306

MR VERNIER: When I first appeared, I did indicate that we would be seeking to set aside the orders. Now, that was a letter by Ms Brooks. Ms Brooks may have - it's not unreasonable for the company to challenge or to change its position if that was what the position originally was. Now, if the orders are to be set aside, which I can't see why they shouldn't, then we have or we should have a reasonable opportunity to put something in reply or to come up with some wording that we both consider to be appropriate as to what orders, if any, the Commission should make.

PN307

THE COMMISSIONER: What, to discuss with the TWU the types of orders? Is that what you're saying?

PN308

MR VERNIER: That's an option. If we don't agree, then maybe we're left in your hands as to what orders, if any, you would make subject to the evidence. It's a two step process. We set aside these orders. There are no orders at this point in time. If there are no orders, then should you make orders, depending on the evidence and if so, what orders should you make?

PN309

MR AIRD: Commissioner, can we just make an objection here? My friend here has had the opportunity to make his submissions. To that extent he made submissions that the orders be set aside on the basis of his submissions. Clearly there's no basis for the orders to be set aside because evidence has already been put before the Commission, the summary of grounds and the statement sworn to by Mr Crosby that there is ample evidence of a suspected breach, so there's absolutely no basis to set the orders aside.

PN310

If my friend wants to make submissions on how they should be varied, it's a matter for him and the company. I've made submissions about proposals to vary the orders to take into account some of the concerns raised by my friend without conceding and if you don't concede, you don't concede. It might be a concept that he doesn't quite grasp, but we didn't concede their arguments. We've made proposals to address some of the issues they have raised. We acknowledge that, but we've made proposals to vary the order. We say that they should now be considered and a decision made. If my friend wants to make some proposal to vary the orders, then he's got the capacity to do it now.

PN311

If he wants to put some evidence on, well, put it on. I mean, in his submissions this morning, the basis of the submissions, we're to have the matter set aside, so I don't know why he's coming back now blaming the Commission for his own inadequate arguments. He's made his submissions on the basis of having the order set aside. Our submissions are that there is no basis to set aside, but we've made some proposals to address some of the concerns raised. I mean, I don't see the point in blaming the Commission. Thank you, Commissioner.

PN312

THE COMMISSIONER: I don't know that he's blaming the Commission, but never mind. I heard your submissions.

PN313

MR VERNIER: Then he's made his point clear, Commissioner, that if we set the orders aside, that's it, the matter goes away, there's no more orders. His position is that he knows I'm here to set aside the orders. He's not challenging that, basically, because he knows he's raised not one shred of argument to say why these orders are proper orders. The only thing he's got is that we should change the orders. Now, if I am successful, therefore we have no orders and we should go back to square one as if we were here yesterday.

PN314

THE COMMISSIONER: What do you say about the TWUs amendments, seeking the amendments to the orders?

PN315

MR VERNIER: In relation to paragraph 1, the amendment is inappropriate and is inconsistent with the Act. It is not the union that gives the notice. It is the actual people seeking to enter the premises. I understand the addition is to add the words:

PN316

On the basis of the union providing 24 hours' notice.

PN317

If the union wants to read the ATO case, it's pretty clear. I don't want to harp on it again.

PN318

THE COMMISSIONER: It's on the basis of Mr Crosby and Mr Hastings.

PN319

MR VERNIER: Correct, yes, so if you would have made that order, Commissioner, that would have been no good as well. Secondly, in relation to the variation to the second order, you cannot put a restraint on management and where is the power to do that? The fact that the union puts that as an amendment, big deal. Where do you get the power to do that? There has been no explanation from the union as to where you get that power and it is inconsistent because the only right that the union has is to come on site and interview employees. Where does it say that management can't be in the vicinity? Where does it say that management can't monitor the interviews? It doesn't say that. Point it out. Where does it say it?

PN320

THE COMMISSIONER: Gentlemen, can I just have your submissions, please? If you want to argue, I will adjourn. Yes, please continue.

PN321

MR VERNIER: So I cannot find any power that you have to make that type of order, Commissioner.

PN322

THE COMMISSIONER: What about the power to hold -

PN323

Shall allow Mr Crosby and Mr Hastings to hold interviews with members and employees eligible to be members of the TWU to investigate the suspected breaches.

PN324

I think that falls under section 747, doesn't it?

PN325

MR VERNIER: That is what he can do if he's allowed on site. Yes, that's under section 748(2), but that's while on the premises, the permit-holder may for the purpose of investigating suspected breach, during work hours interview the following persons about the suspected breach which is employees who are members or those eligible to be members of the TWU. That's what can happen when they come on site. Where is the evidence that would support an order of that nature being made? Where is the evidence that the company would not comply with the requirements under section 748(2)? There is absolutely no evidence. Even taking Mr Crosby's statement at its highest which still remains untested, where is the evidence that you would need that type of order?

PN326

MR AIRD: Commissioner, can I just object here? With respect, my friend is wasting our time. We've sent two notices. They've been provided to you, Commissioner. We listed the basis of the suspected breach. We turned up to the site and were denied entry, so I just went through those in my submissions that there was notices sent to the company for four days about the suspected breaches, so that's the evidence that they haven't complied and why an order is necessary and we've already had the statement from Mr Crosby. Mr Crosby is here today if the company wants to cross-examine him and we've filed the summary of grounds, but just on the initial issue, the entry permits have been sent. I've provided copies to the Commissioner. They were faxed to the company. That's the basis - - -

PN327

THE COMMISSIONER: Thank you, Mr Aird. Thank you. Mr Vernier, do you want to call any evidence that the company has allowed entry onto the premises or that there's issues with the permit-holders or the permits? We're here. You've got your HR people here from DHL.

PN328

MR VERNIER: Yes, but this is like being ambushed, Commissioner.

PN329

THE COMMISSIONER: I don't think it's being ambushed at all. Do you want to lead any evidence to say that they've been allowed on site?

PN330

MR VERNIER: Well, I would like to test whether there is any reasonable grounds to suspect a breach.

PN331

THE COMMISSIONER: How do you want to do that?

PN332

MR VERNIER: I would need to have some time to prepare. I would like to cross-examine Mr Crosby.

PN333

THE COMMISSIONER: We can call Mr Crosby.

PN334

MR VERNIER: Can we first determine whether your orders are going to be set aside, Commissioner, because that's our basis of today was to set aside the orders? Now, if those orders are beyond power - - -

PN335

THE COMMISSIONER: I am inclined to vary the orders.

PN336

MR VERNIER: Okay, so you're inclined to vary them and the terms of the variations are what Mr Aird proposes?

PN337

THE COMMISSIONER: Well, he has put two proposals to me in relation to 2 and I think I've heard your submissions in relation to point 2 of the order.

PN338

MR VERNIER: May I have five minutes, Commissioner, only five?

PN339

THE COMMISSIONER: I will give you five. I will wait in the anteroom.

<SHORT ADJOURNMENT [2.57PM]
<RESUMED [3.05PM]

PN340

THE COMMISSIONER: Yes, Mr Vernier.

PN341

MR VERNIER: Commissioner, my instructions are not to cross-examine. Therefore, we simply rely upon our submissions, including the submission that some of the evidence in Mr Crosby's statement is inconsistent with what we understand to be the correct evidence. Therefore, we still submit that there is no real basis on the Commission making order 2 which is the order proposed by Mr Aird. There is no - first of all, there is no evidence that once the permit-holders have been allowed on site which they have been, there has been any interference.

PN342

THE COMMISSIONER: In the past, I think.

PN343

MR VERNIER: And there is no evidence to suggest that that would happen in the future. There is no evidence to suggest - there is no basis upon which you - for you to make the order in the first sentence of paragraph 2 of the orders which is that:

PN344

DHL shall allow Mr Crosby and Mr Hastings to hold interviews.

PN345

That is part of the Act itself. They have that right once they follow the appropriate procedure to get on site, so there's no reason to make that order and there is no evidence to suggest that the company would, in fact, not allow Mr Crosby or Mr Hastings to hold interviews with the employees, so we say there is no evidence to support that order being made. In relation to the rest of paragraph 2, there is no evidence that - well, the rest of paragraph 2 actually goes beyond the Act which we say is again outside the jurisdiction of this Commission.

PN346

THE COMMISSIONER: Wait a minute. Are you talking about one of the amendments?

PN347

MR VERNIER: Yes.

PN348

THE COMMISSIONER: The amendment and then there's the alternative amendment to paragraph 2. You took those notes, did you not?

PN349

MR VERNIER: I took this down. This is the second part of the paragraph that I took down, that:

PN350

DHL management and representatives of management shall not remain in the vicinity of the interviews and shall not monitor the interviews and shall generally provide access to an appropriate and reasonable manner, given the nature of the suspected breaches of the Act.

PN351

That as I understand concludes paragraph 2.

PN352

THE COMMISSIONER: But then there's an alternative.

PN353

MR VERNIER: Of paragraph 2?

PN354

THE COMMISSIONER: Yes.

PN355

MR VERNIER: Okay. I missed that, Commissioner.

PN356

THE COMMISSIONER: That was that DHL shall allow Mr Crosby and Mr Hastings to hold interviews with members and employees eligible to be members of the Transport Workers' Union of Australia to investigate suspected breaches of the Act.

PN357

MR VERNIER: I thought that was the first sentence of paragraph 2.

PN358

THE COMMISSIONER: No, that's the alternative, is it not, Mr Aird?

PN359

MR AIRD: That's correct, Commissioner, if the submissions of my friend are accepted.

PN360

MR VERNIER: Okay, so that's the extent of paragraph 2 if my submissions are accepted.

PN361

THE COMMISSIONER: Well, that's the alternative put to me, if I am not inclined to run with their first option.

PN362

MR VERNIER: And their first option includes that sentence that you read out, Commissioner, and the sentence that I read out.

PN363

THE COMMISSIONER: No, no, no, the first option was what you just read out.

PN364

MR VERNIER: Well, in relation to - paragraph 1, let's put that to one side. You would have the power to make an order in the terms of paragraph 1 as the Commission did in the Tax case, so if you follow that, then we can't say anything about that. In relation to paragraph 2, the sentence that refers to allowing Mr Crosby and Mr Hastings to hold interviews with members or those eligible to be members, that particular sentence I say, Commissioner, there is no evidence to support that type of order being made. In any event, there is a specific right in the Act that if and when they do get access, they have the right to hold interviews with employees and that is in section 748(2), so that's already a specific right under the Act.

PN365

THE COMMISSIONER: It's 747.

PN366

MR VERNIER: No, but 748(2), Commissioner, is what they can do when they come on.

PN367

THE COMMISSIONER: Yes, after entering the premises. That's right. Yes, 747 is the breach and 748 is what they can do once they're on the premises.

PN368

MR VERNIER: Correct, and there is no evidence that the company will breach that section. You have no evidence, therefore you should not make an order in terms of section 748(2), because there is no evidence before you to support that breach. The extent of the evidence at the moment goes to the ability to enter. There is no evidence that the company will breach any obligations once the permit-holders are in fact on site, so in relation to the sentence that deals with allowing Mr Crosby and Mr Hastings to hold interviews, et cetera, we say there is no evidence to support that that type of order should be made at this stage. In relation to the sentence that deals with management's involvement, that is that management shall not be in the vicinity of the interviews - - -

PN369

THE COMMISSIONER: That's going back to the first option.

PN370

MR VERNIER: Yes.

PN371

THE COMMISSIONER: The first amendment.

PN372

MR VERNIER: Yes. I say that there is no power in this Commission to make that type of order. It is going beyond the requirements of part XV of the Act. There has been no submission by the union as to where you get the power to make that type of order and the union seems to concede that, because they haven't pointed to any section where you can do that, so we say that you should not make that type of order because it would be again invalid, so on that basis we say that no matter what version of paragraph 2 you look at, you should not make orders in accordance with paragraph 2 on either version. Paragraph 1, well, that is really up to you, Commissioner. If you want to repeat the requirements under the Act, then they're already there and that order would merely set out what is in the Act. That's all it really does. In relation to paragraph 3, posting a copy of the orders on the notice board, again I don't know where that power lies in order to make that order.

PN373

THE COMMISSIONER: I don't think the Full Bench overruled Senior Deputy President Lacy on that.

PN374

MR VERNIER: I don't think it was a posting, though, of the orders.

PN375

THE COMMISSIONER: It was advising. Well, actually, it went further, to be honest.

PN376

MR VERNIER: There's a notification.

PN377

THE COMMISSIONER: It went further, I think, if memory serves me correct that management were to advise employees that unions were on site and that they were free to discuss with them, not exactly in those terms, but, anyhow, I'm sorry, I've interrupted your submissions again.

PN378

MR VERNIER: Just in summary, I think it's a foregone conclusion that the current orders need to be set aside, with all due respect, in relation to the first paragraph. The Commission can make orders in accordance with the ATO decision that we've been talking about. In relation to the second paragraph, I say that on either version of the proposed amendments by the union, the Commission should not make any orders in those terms. First there is no evidence and second there is no power in relation to removing management from the interviews or the vicinity of the interviews. Those are my submissions.

PN379

THE COMMISSIONER: Thank you.

PN380

MR AIRD: Thank you, Commissioner. First of all, we don't have any objection to paragraph 1 having an amendment in regards to the 24 hour' notice. That complies with the ATO case, so if it needs to refer to the specific organisers giving the 24 hours' notice, we have no problem with it being amended on that basis. Clearly, that was the intention of the union, to seek to be amended so that an appropriate 24 hour notice would - what my friend claims, what notice was required, so we don't contest that if it's amended on that basis.

PN381

Commissioner, there were some submissions made that there was no evidence before you about the need for an order. I appreciate my friend hasn't had much involvement in this matter, but we were originally before you, I don't have the exact dates, but I've got the date that I filed the application - - -

PN382

THE COMMISSIONER: 5 March.

PN383

MR AIRD: - - - was on 5 March about right of entry under 760 which was refused. In these proceedings, we've given you fax receipts where we've sought right of entry at the site, as I stated earlier, on Monday, 19 March and Tuesday, 20 March and we also sought entry on Monday, 26 March and Tuesday, 27 March and the fax receipts clearly show that in excess of 24 hours' notice was given and that that right of entry was denied and that's also been given in statements, sworn statements by Mr Crosby that right of entry was denied, as well as the entry permits that have been provided to the Commission and I don't know if it's been contested, why it's in contest at the moment, but maybe my friend is not aware of the circumstances.

PN384

Ms Brooks can certainly advise that entry notices were given and not complied with, so there is a basis for the order because we have attempted to - we have complied with the Act and provided the entry notice permits and it hasn't been complied with. Now, in regards to the evidence, the only evidence before you, Commissioner, is our summary of grounds and the statement of Sam Crosby. Now, the statement of Sam Crosby provides evidence in 20 to 22 of his statement and the company has denied or has indicated that they don't choose to cross-examine him and I think the only appropriate conclusion can be reached from that decision is that the evidence goes in untested and unchallenged and in that statement, he makes it clear that there was possibly intimidation by management when discussions with employees were taking place.

PN385

We also note that the ATO case and I would note it doesn't deal with this in any great way, but it does make some comment on it at paragraph 24 and 25. It indicates depending on the nature of the suspected breach that more broad orders may be given where appropriate. Now, we don't have to point to a very specific part of the Act that says people who are union members should be able to have a discussion with their union official when there's allegations of intimidation about a manager standing nearby.

PN386

I mean, it's common sense, it's implicit in the provisions of section 747 when read in the context of a breach that we claim in relation to freedom of association. In the summary of grounds, there is evidence before you in the summary of grounds that an employee at the Arndell Park site was dismissed for handing out a TWU membership card. Now, they had the summary of grounds, they've had the statement of Sam Crosby. You don't get a lot of time in these matters. I mean, I've been here before the Commission in 496 orders. These are urgent matters that are dealing with a right under the Act, so let's deal with this nonsense of natural justice being accorded. They've had the capacity to be here, they've had the capacity to put their evidence on and they haven't done so. There's evidence before you that the company has intimidated employees on that site and that evidence has not been contested in any way. It's clearly implicit, it's clearly implicit in section 747 and 748 of the Act that to give effect to that, to give effect to that, that you need to make appropriate orders, I mean, to allow investigation to take place in an appropriate manner. Even given that and we say that's sheer common sense about how you would interpret section 747 and 748, sheer common sense, but what we say is if for some reason the submissions of my friend are accepted, as we've already submitted, Commissioner, then clearly an order still needs to issue and we've provided the basis for an order to issue on the terms that are provided for in the Act without qualification. It needs to be issued because they haven't complied with the entry notices that have already been issued in the terms of the Act. Thank you, Commissioner.

PN387

THE COMMISSIONER: Anything else at all, gentlemen?

PN388

MR VERNIER: Just on the summary of grounds - - -

PN389

THE COMMISSIONER: I knew I shouldn't say that. I do it all the time, but, please, yes, continue.

PN390

MR VERNIER: The summary of grounds is not evidence.

PN391

MR AIRD: Well, it's a submission.

PN392

MR VERNIER: It's a submission, that's right, but there is no evidence before the Commission in relation to paragraph 4 of the submission, so the only
evidence - - -

PN393

THE COMMISSIONER: I accept that.

PN394

MR VERNIER: That's all I wanted to say.

PN395

THE COMMISSIONER: Gentlemen, I am going to amend the orders. In my view, under section 772 of the Act, settling a dispute over part XV of the Act, I think in the circumstances of this case it's appropriate that orders do issue. I will amend part 1 in regards to the notice period. In regards to paragraph 2 of the order and the TWU has put up two options for amendment, at this point in time, I choose not to comment on whether the initial amendment as sought would be beyond power having regard to the Full Bench decision in the ATO matter and the powers under section 772 when one considers the purposes of the investigation. However, at this point I choose to accept or I've decided that I will accept the second amendment to the order. Part 3 of the order will be maintained and part 4 shall also be maintained.

PN396

MR VERNIER: Can you just put on the record, Commissioner, what is the second - what paragraph 2 should read?

PN397

THE COMMISSIONER: Paragraph 2 will read:

PN398

DHL EXEL Supply Chain (Australia) Pty Ltd shall allow Mr Sam Crosby and/or Mr Graham Hastings to hold interviews with members and employees eligible to be members of the Transport Workers' Union of Australia to investigate suspected breaches of the Workplace Relations Act 1996.

PN399

As I say, part 3 shall remain of the order and I also intend to maintain part 4 of the order. If you wait, gentlemen, copies of those orders will be given to you within 10 minutes. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [3.22PM]