C2008/2032, Transcript of Proceedings [2008] AIRCTrans 314 (26 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18635-1

COMMISSIONER WILLIAMS

C2008/2032

s.496(1) - Appl’n for order against industrial action (federal system).
Toll Transport Pty Ltd
and
Transport Workers’ Union of Australia-New South Wales Branch
(C2008/2032)

PERTH

2.33PM, FRIDAY, 13 JUNE 2008

PN1

MS A CASELLAS: I seek leave to appear for the applicant in these proceedings.

PN2

MR T BORGEEST: I am a legal practitioner and I seek leave to appear on behalf of the Transport Workers Union of Australia and for our part we have no objection we have no objection to the applicant appearing by counsel.

PN3

THE COMMISSIONER: Yes, thank you, Mr Borgeest. Leave is granted to both parties. Yes, Ms Casellas.

PN4

MS CASELLAS: Thank you, Commissioner. Commissioner, this application was filed this morning on an urgent basis because the applicant's business, Toll Express which is based at the Perth International Airport which is known as the Kingsford Smith site, employees on that site are engaging in unprotected and unlawful industrial action and I will just give you a brief rundown on what we say are the relevant facts. Yesterday the employment of a former TWU delegate, former employee of Toll Transport his employment was terminated for serious misconduct and I say that, Commissioner, because it becomes relevant later on. But at approximately 5.20 am this morning an employee informed Steve Rock who is the am supervisor at the site that he was unable to start work at his scheduled time because there was going to be a meeting.

PN5

At approximately 5.20 Mr Rock approached John Cain who is a TWU organiser in the car park on the site and he informed him that he could not hold any meeting unless it was authorised by Ross Longmire who is the state manager or Wayne Warwick and he said that he was going to continue without that authorisation. At approximately 5.45 am Ross Longmire telephoned John Cain who confirmed that he was on the site and during that telephone call John Cain informed Ross Longmire that he was going to hold a 10 minute meeting during the morning with his members. He said that he'd organised the meeting the previous day but had not informed the company of his intention to have a meeting and the purpose of the meeting was to inform members regarding the termination of employment of Mr Steve Holloway who is the TWU delegate.

PN6

Mr Longmire confirmed with Mr Cain that he was aware that the company had not authorised this meeting. He confirmed that he was aware of that and he was going to continue regardless. At approximately 7.15 am Mr Longmire arrived at the site and he spoke to Mr Cain.

PN7

THE COMMISSIONER: Sorry, Ms Casellas, what time was that one?

PN8

MS CASELLAS: 7.15, Commissioner.

PN9

THE COMMISSIONER: Thank you. Yes, carry on.

PN10

MS CASELLAS: John Cain approached Mr Longmire in the car park on the site and Wayne Warrick was also present. At that stage the employees were outside the front gate and had not performed any work since 6 am. John Cain then told Mr Longmire and Mr Warwick that he wanted the company to continue paying Steve Holloway and take the umpire's decision in relation to Steven's termination which was interpreted to mean that he should continue to receive an amount of money similar to his wages while an unfair dismissal claim was determined by this Commission. Mr Longmire responded that he would not discuss this issue with Mr Cain while the employees had withdrawn their labour. Mr Cain denied that the employees had withdrawn their labour and that they were only having a 10 minute meeting. However, he then advised Mr Longmire that the employees would not be returning to work unless Toll agreed to continue paying the wages of Mr Holloway.

PN11

By approximately 7.50 am the majority of employees had collected their cars and left the site and, Commissioner, I'm instructed that there are a small number of employees continuing to work at the depot, approximately 25 or 26 out of a total of 148 that would usually be working, Commissioner. Commissioner, this application is brought pursuant to section 496 of the Workplace Relations Act and our application is based on the material I've just presented to you and
Mr Longmire is present to give evidence to that effect. We say that once we've established that industrial action has been taking place and is taking place, and I understand from my friend that he doesn't disagree with that part of my submission, that this Commission does not have the jurisdiction not to make an order in those circumstances.

PN12

So we would ask that an order be made in accordance with the terms sought attached to our application filed this morning, Commissioner.

PN13

THE COMMISSIONER: Ms Casellas, without getting too far ahead of ourselves I have some issues with the draft order filed which we'll worry about at the back end of these proceedings one way or the other.

PN14

MS CASELLAS: Yes, sir.

PN15

THE COMMISSIONER: Can you just help me understand what would be the normal work start and finish times for today?

PN16

MS CASELLAS: Yes, sir. I understand that there are staggered starting times of between 5.30 am and 10 am. If you'll just excuse me for a moment I'll find out what time the shifts normally end?

PN17

THE COMMISSIONER: Thanks.

PN18

MS CASELLAS: Anywhere between 3 pm and 11 pm tonight, sir.

PN19

THE COMMISSIONER: Okay, that's helpful, thank you. Carry on.

PN20

MS CASELLAS: Perhaps it might be useful to hear from my friend at this point and we can ascertain what parts of our submissions that he takes issue with.

PN21

THE COMMISSIONER: Okay, Ms Casellas, I'll take that suggestion.
Mr Borgeest, do you want to give me an overview of what the respondent's position is, please?

PN22

MR BORGEEST: Yes, thank you. At the outset I do have to say that there an enormous range of difficulties with the form of order proposed even if the Commission was satisfied of the certain basic jurisdictional facts.

PN23

THE COMMISSIONER: I agree with you about that, Mr Borgeest.

PN24

MR BORGEEST: Yes.

PN25

THE COMMISSIONER: Sorry, perhaps we should be more transparent about that. Can I just make the observation and I suspect that's what you're referring to, Mr Borgeest, but tell me if I'm wrong, but in the wake of a number of recent decisions in particular of the Federal Court the form of order that can flow from proceedings like this, if it's appropriate that one does issue, has been addressed in some detail by the Federal Court and my sense of the draft order as filed is that it falls foul of a number of the areas that the Federal Court focused on.

PN26

MR BORGEEST: Yes. There's a striking similarity between the draft order before you in this proceeding and an order that was really dissected and there's basically nothing left of the order after the Full Court of the Federal Court had finished with it in TWU v AIRC from earlier this year.

PN27

THE COMMISSIONER: And again just so that we're all very clear, both parties should appreciate that any deficiencies in the draft order, if I am satisfied at the end of the day that an order should issue and I’m obliged to issue one, then those deficiencies would be remedied.

PN28

MR BORGEEST: I'm grateful for that indication, thank you, Commissioner. I can give you the overview of my instructions of what's happened on recent days, much of which is consistent with what you've been told but there are some significant - few significant differences. The union was contacted on Tuesday of this week by Mr Longmire who we've heard about and Mr Cain of the union was told that the company had some problem with one of the delegates and we're talking about a Mr Steven Holloway. The following day, Wednesday of this week there was a meeting involving Mr Holloway, Mr Longmire and Mr Cain was in attendance. I can't tell you if that's a complete indication of who was at that meeting on Wednesday of this week but the purpose of that meeting included a number of questions being put to Mr Holloway about his conduct and the employers concerned with that.

PN29

There were two significant issues that were raised and they were discussed in the meeting and after the meeting Mr Longmire advised Mr Cain, well, we're not going to press on one issue but we have these significant concerns about another issue. The following day, Tuesday - Thursday, yesterday, there was a meeting involving Mr Holloway, Mr Cain, Mr Longmire, together with another delegate of the union Mr Mick Colodenski, and another representative of the employer,
Mr Wayne Warwick. Now, at that meeting Mr Holloway was informed that his employment was being terminated summarily and that he would have no entitlement to any termination payments and he should leave forthwith.

PN30

Now, Mr Cain pulled Mr Longmire aside and said look, hang on, you've conducted what you reckon is your investigation but over the last day or so I've been looking to this matter as well and we have some views about what you're alleging against Mr Holloway and, you know, we don't think you've got it quite right, we think this should be dealt with properly. So the proposition was put to Mr Longmire by Mr Cain that look, don't sack him, if you need to suspend him you can suspend him on pay and we'll get the problem in front of the Commission and each of us can present our case and we accept the umpire's decision about what you have alleged against Mr Holloway and that proposition was rejected out of hand by Mr Longmire. No decision was final.

PN31

Late yesterday Mr Cain fielded a very large number of calls from members employed by Toll who expressed a great deal of agitation and confusion and bewilderment about the sacking of the delegate and asked for Cain to come and meet with them in the morning to report on what was going on and Mr Cain agreed to do that. So there was a meeting this morning. It was a meeting that was arranged between employees and Mr Cain late yesterday and there's certainly debate with what my friend said that during yesterday, late yesterday, there was no discussion with the company about the holding of the meeting. We accept all of that.

PN32

Now, Mr Cain attended outside the front of the premises from very early this morning and before any meeting had commenced he was approached by a gentleman he understood to be a couple of foremen with the business who asked Mr Cain if Mr Longmire could come to the meeting and address the employees. Mr Cain said he can have that opportunity if he wants to and he agreed not to hold a meeting before Mr Longmire arrived. Now, shortly after that discussion with the foreman and this picks up back into the chronology you've heard from
Ms Casellas, Mr Longmire did ring Mr Cain and asked him are you having a meeting and put to Mr Cain that it was an unauthorised meeting.

PN33

Mr Cain responded that it had only just been requested by the blokes late yesterday it was only going to be a brief meeting to report to them what had happened the preceding day. When Mr Longmire arrived he just drove straight through to the premises and did not approach the meeting. He approached the gathered employees. Now, a meeting did occur. There was a proposal from among the employees that they should all go home and stay on strike until the company agreed to reemploy Mr Holloway or rescind the summary termination. Mr Cain said that's not the way to do it and that won't work, the union has filed an application in the Commission which it's hoped will urgently deal with the situation and in any event we should talk to the company and see whether we can fix the problem.

PN34

Mr Cain was instructed by the meeting to approach Mr Longmire to again put the proposal that Mr Holloway not be sacked but he be suspended if that's what the company thought was proper and in the meantime that the issues to do with the allegations of misconduct should be referred to the Commission for resolution. Mr Cain did take that proposal as he was instructed to Mr Longmire, spoke to him in the car park and again Mr Longmire rejected that proposition. The employees in the meeting heard that report. They resolved to not work today and they did so against Mr Cain's advice in the face of his recommendation that the best way to deal with it is to bring the subject of Mr Holloway's termination before this Commission at the earliest opportunity.

PN35

So you can see in the outline I've just given alongside the outline from
Ms Casellas that there are a number of things that aren't in issue. One of them is that the employees as from a meeting this morning did not attend for work and my understanding is that those who were at the meeting have not worked today. The background is connected to this termination about which you've heard but the union has taken the position that the way to resolve the problem connected with Holloway's termination is in this Commission. It has filed an application in this Commission. It has invited the company to agree to cooperate in a process that would involve Mr Holloway just being suspended while some procedure be followed, but in the absence of that agreement it has just used the ordinary unfair and unlawful termination provisions and made an application of that kind.

PN36

It has recommended that the employees not strike today and advise them that the best way to deal with it is in the manner that I've outlined. Commissioner, I think it's appropriate that I say at an early stage that there's one issue to do with the form of the application that's been filed that's appropriate to deal with up front rather than as a question of framing the terms of orders and that's the question of the identity of persons to whom it applies. The union has received the application and been given notice of today's hearing and we make no complaint about the adequacy of service in that regard. I'm here representing the interests of the union.

PN37

Significantly, the form of the order purports to bind employees in their individual capacity. On my instructions the union is not aware of any attempt having been made on employees to be served with the application, nor to be given notice of today's application. My friend can correct me if I'm wrong, but based on a discussion I've had with her before this hearing commenced I understand that the company has not attempted service on any proposed respondent other than the union. Now, that brings the question of the validity of the application insofar as that it seeks orders against any person other than the union.

PN38

The rules of this Commission require that in respect not just of applications generally but of applications of this kind, that the applicant must serve a copy of the application and completed notice of hearing on all persons against whom the order is sought and that flows from rule 24, sub rule 3 of the Australian Industrial Relations Commissions Rules 2007. Quite apart from the requirements of the rules, as a matter of principle and common law the Commission should refrain from hearing an application against persons not notified of that for the reasons discussed in the case that we mentioned a moment ago.

PN39

Now, I can take the Commission to those passages if that's required but the reason why I'm raising that question at this early stage is to give my friends the opportunity to consider whether they wish to either abandon the claim for an order as against persons who have not been served, or alternatively, apply for an adjournment so that such attempts can be made. That's a matter for my friends. But in the absence of them taking some steps to correct that position we would say that at this early stage it's necessary to be clear that what we have is an application for orders against the union and there's no capacity to make orders going elsewhere.

PN40

Commissioner, I hope you're assisted by those preliminary remarks from the union's perspective.

PN41

THE COMMISSIONER: Mr Borgeest, on the point you've raised, are you aware of the Health Services Union's case, the Full Bench decision that has followed after the Federal Court's decision?

PN42

MR BORGEEST: I haven't been back to what's followed since TWU in the time since I've been instructed in this matter, no.

PN43

THE COMMISSIONER: Well, perhaps in shorthand, the Commission in that case considered in the wake of the TWU Federal Court case a range of issues and the issue you've just raised and formed the view - this is in print PR981439 at paragraph 25.

PN44

MR BORGEEST: I apologise, Commissioner, can you - - -

PN45

THE COMMISSIONER: I'll explain perhaps just very briefly.

PN46

MR BORGEEST: I'm sorry, Commissioner, could I just take a note of the print number?

PN47

THE COMMISSIONER: Sure. PR981439.

PN48

MR BORGEEST: Thank you, much assisted.

PN49

THE COMMISSIONER: If I can just paraphrase it, paragraph 25 the Full Bench's view was in the particular matter before them that service on the union, they were satisfied equated to service on the union's members.

PN50

MR BORGEEST: Yes.

PN51

THE COMMISSIONER: Not beyond the membership but limited to that.

PN52

MR BORGEEST: Without being able to assist the Commission with observations on that particular decision, the Full Court of the Federal Court had had regard to earlier authority under the pre WorkChoices provisions in section 127 and earlier authorities along the lines perhaps of what the HSU decision had provided, had said that in various circumstances that the interests of persons not served but who are members of an organisation who had been were adequately responded and they have an adequate opportunity to be heard. The significance of the Full Court's decision was that it drew attention to the much greater penal consequences for an individual of being found to have contravened an order made by this Commission.

PN53

The stakes for an individual have become considerably higher as far as the level of penalties and other enforcement mechanisms that might be applied and so the general common law principle that a statutory power ought not be exercised against a person absent the affording of natural justice rights has a heightened significance in that particular circumstance. So that's the crux of that submission and it relies both on the principles of natural justice articulated by the Full Court of the Federal Court but alongside that there is the bare failure of the applicant to comply with the rules of the Commission. If the Commission pleases.

PN54

THE COMMISSIONER: Thank you, Mr Borgeest. Now, Ms Casellas.

PN55

MS CASELLAS: Yes, thank you, sir. I take it, sir, that the applicant has not taken any steps to serve any individual employees or members of the TWU. We do say that service on the TWU is sufficient. What we're talking about in these circumstances as I understand from my friend and I know that he is here today representing the union and not the employees, but we're talking about a situation where there's now no debate that the actions of the employees do constitute a breach of the Act in that they are unprotected. So what we are simply asking is that an order is made that the employees do not continue to break the law.

PN56

We're not asking for anything that goes any further than that and to follow on from my friend's suggestion, it would open to my client, I don't have any instructions on this, to go back to its workforce and explain that the TWU has made a submission in this Commission that the members went against the advice of its union and decided to take industrial action completely ignoring what their organiser told them to do and that as a result of this submission we will now be seeking to serve them all individually. So that's the option that we're left with. We think that it is a more appropriate way to deal with it, would make an order that would just merely require the members of the TWU to - and we agree, we completely agree with my friend's submission that the appropriate way to deal with the termination matter is with the termination provisions of the Workplace Relations Act. We have no difficulty with that.

PN57

My client's representatives who are here with me at the moment aren't aware that they had been served with any application. That may have happened while they have been here but of course that's an application where a number of the matters raised by my friend in terms of what happened at a meeting and a termination meeting and all those sorts of things aren't relevant in relation to these proceedings and are relevant to be dealt with in relation to the termination proceedings that we have now been advised have been filed.

PN58

THE COMMISSIONER: Thank you. Ms Casellas, putting aside the issue
Mr Borgeest for a moment and putting aside a range of other issues raised by the Federal Court in terms of formal orders, are you going to address me on the balance of the statutory prerequisites that I need to be satisfied about?

PN59

MS CASELLAS: I can, sir.

PN60

THE COMMISSIONER: Perhaps things like whilst it's been said this isn't protected action are you able to give me any more details as to why I should accept that that's the case?

PN61

MS CASELLAS: Yes, sir, I can. At the moment there are two agreements that apply at the Toll Express site. They are both pre reform, they' both quite old agreements, one in 1997 and one in 1998. I'll find the names of those. Sir, it's the Toll Express Perth WA Agreement 1998 and the Wesfarmers Transport Ltd Enterprise Agreement 1997. While those agreements are clearly past their nominal expiry date the TWU and Toll have agreed to terms for a new workplace agreement to the point where the agreement has actually been signed. It has been lodged with the Workplace Authority approximately three weeks ago. Now we're simply waiting for notification from the Workplace Authority that it has no disadvantage test.

PN62

So the reason we say this industrial action is unprotected is because none of the requirements under the Workplace Relations Act have been met. The issue is in relation to the termination of a delegate. It has nothing to do with any bargaining claims that are being advanced by the union and/or its members. No secret ballot order has been carried out. No notice of the action was given to the employer so we say, sir, that the action is clearly unprotected because it doesn't comply with any of the requirements under the Workplace Relations Act that it be protected.

PN63

MR BORGEEST: Can I perhaps just foreshorten that. I don't have specific instructions or background on the history on the agreements but I certainly am not suggesting to you that there's a been a secret ballot order that notice of industrial action in support of claims has been given. We don't make any assertion of that kind at all.

PN64

THE COMMISSIONER: No, I appreciate your assistance in that, Mr Borgeest. Notwithstanding everybody might be in furious agreement about some matters, I have a statutory obligation to be satisfied about them. I can't assume them.

PN65

MS CASELLAS: Thank you, sir.

PN66

THE COMMISSIONER: So that's helpful, but thank you, Mr Borgeest. Yes, carry on, Ms Casellas.

PN67

MS CASELLAS: So it's on that basis that we say that the industrial action is unprotected and unlawful and we say that we have served the application as required and the action taken clearly falls within the definition of industrial action in the form first of a stoppage of work essentially, the first in the form of a meeting and now a strike.

PN68

THE COMMISSIONER: Ms Casellas, the section we're dealing with, 496 - sorry, perhaps I'm being presumptuous. Were you going to all address me on the Federal Court decision? If you're not I've just got a couple of questions before we get to the detail of any orders.

PN69

MS CASELLAS: No, sir.

PN70

THE COMMISSIONER: 496 deals with circumstances where industrial action may be happening, threatened, impending, probable or being organised. What do you say of those is occurring?

PN71

MS CASELLAS: Sir, we say that there is no debate that it's happening. We also say on our understanding that it was organised. We don't have any further evidence that would suggest that it is being organised or that it is probable but from our perspective we have no indication whatsoever whether these employees intend to return to work.

PN72

THE COMMISSIONER: And I accept Mr Borgeest's view was he recognises it is happening. All right, that's helpful, thank you. Ms Casellas, the draft order has a series of problems. Perhaps we need to work through them if I may.

PN73

MS CASELLAS: Yes.

PN74

THE COMMISSIONER: So I'm now looking at the draft as it were - - -

PN75

MS CASELLAS: Ascertained in the application, sir?

PN76

THE COMMISSIONER: Yes.

PN77

MS CASELLAS: Yes.

PN78

THE COMMISSIONER: Okay. And Mr Borgeest, I'll give you an opportunity to comment on these as we go through. I think we start at 2.1(b) what you're seeking, Ms Casellas, is an order that applies to the TWU and its officers, employees, agents and delegates.

PN79

MS CASELLAS: Yes, sir.

PN80

THE COMMISSIONER: The Federal Court's view was whilst the union in its circumstance like this may have been served, certainly not all of its officers, employees, agents and delegates Australia wide or even in this state would be even aware of this application.

PN81

MS CASELLAS: Yes, sir. We'd be agreeable to an amendment that confined that to the named officers in the service fax.

PN82

THE COMMISSIONER: Very well. And 21(c)(i) falls foul again of the issue Mr Borgeest raised. He's raised the issue of members and I'll put that to one side for the moment. But eligible to be members which in shorthand means non union members.

PN83

MS CASELLAS: Yes, sir, so w don't press that part of the order either.

PN84

THE COMMISSIONER: And if I can then flip over to point 3 which is headed Industrial Action To Stop Not Occur and Not Be Organised. It would seem from what's been said it's agreed industrial action is happening so I would be satisfied that that's the case, but I'm not able to make any findings I don't think that it's being organised, threatened, impending or probable. So basically there need to be a substantive redrafting there, would you agree with that?

PN85

MS CASELLAS: Yes, sir.

PN86

THE COMMISSIONER: And 3.5 again some difficulties because it expands its obligations onto people who are unaware the order even - sorry, the application exists.

PN87

MS CASELLAS: Yes, sir. We would just ask that they be in relation to the named officials.

PN88

THE COMMISSIONER: And 3.6 again has some significant difficulties, as does 3.7 I think. The Federal Court largely was of the view that orders of the type of 3.7, in my shorthand, could be perhaps ancillary directions to the union but I would doubt that what's in 3.7 is probably reasonable in these circumstances.

PN89

MS CASELLAS: Yes.

PN90

THE COMMISSIONER: But I'll look at it and hear from Mr Borgeest in a moment. All right, thanks for that, Ms Casellas. Mr Borgeest, if I am minded to issue an order are there comments you want to make on the form of the order or the draft as I've browsed through it?

PN91

MR BORGEEST: Thank you, Commissioner. With respect to 2.1(b) to which the Commission took my friend a moment ago, the observations that are apposite in the TWU decision appear at paragraph 54 on page 33 where the Full Court was there dealing with the term of a proposed order of a similar kind where the order purports to bind all of those falling within those categories. Now, my friend has conceded or has indicated that the applicant no longer presses in that way but presses in a different way to identify the persons - the officials identified in the service fax. I am looking at a facsimile from Clayton Utz addressed to the union earlier today addressed to Mr Tony Sheldon who's identified as the acting federal secretary with the TWU with a copy faxed to Mr Jim McGiveron who is identified as the branch secretary of the Western Australian branch.

PN92

So if I take it that the applicant is now proposing that the order should be binding only on the union and those two named persons and that there's no other person to whom it's proposed to be binding, then with that understanding I'll be able to confine much of the rest of my submissions, but I would invite my friend to just indicate that before I address you on the balance of the orders.

PN93

THE COMMISSIONER: Sorry, Mr Borgeest, so potentially 2.1 could say the Transport Workers Union of Australia, Mr Tony Sheldon and Mr Jim McGiveron, is that your submission?

PN94

MR BORGEEST: No, I just wanted it to be clear how my friend is proposing to modify what the applicant is seeking. On the basis of the exchange between the Commission and my friend are we now to understand that the application is for an order binding on the TWU and Mr Sheldon and Mr McGiveron and on no other person?

PN95

THE COMMISSIONER: Ms Casellas?

PN96

MS CASELLAS: Sorry, sir. My friend explained that as my submission correctly.

PN97

MR BORGEEST: I don't want to be tricky about it, but I take that to be a concession it's no longer pressed as an order to be binding on individual named employees?

PN98

THE COMMISSIONER: I don't think it ever was, was it?

PN99

MR BORGEEST: Well, that's where we come to - sorry, not individual named employees but individual employees in their own right as described within the broad category 2.1(c).

PN100

THE COMMISSIONER: Sorry, we were talking about 2.1(b) and the issue of officers, employees, agents and delegates and that seems to have fallen away.

PN101

MR BORGEEST: Yes. Well, then I'll come to 2.1(c).

PN102

THE COMMISSIONER: Yes.

PN103

MR BORGEEST: With respect to (c) I simply rely on the submissions that I've made earlier, that on the basis of what's said in TWU and I refer specifically to paragraphs 42 and following, at 42 and following the court - back to 41, excuse me. Paragraph 4(a) of the order in that case required that each employee immediately stop industrial action, that each employee not engage in industrial action and not threaten so. It's recorded in paragraph 41 that no notice was given to any of the employees individually. The Full Court then considers in paragraph 42 the authority of a Full Bench of the Commission where the Full Bench took the view that service on individual employees was unnecessary. Over the page, on page 28 of the print I have the Full Court says:

PN104

It is no means clear that this is a safe approach for the Commission to rely on.

PN105

Under the new provisions when those early decisions were taken in the context of section 127 of the pre reform Act, further down in 42:

PN106

An order made under section 496 carries with it the possibility of civil penal consequences. The interests of an employee against whom such an order is made are now affected to a far greater degree than they could have been under the former section 127.

PN107

The general principles about the necessity to afford procedural fairness are identified in paragraph 53 and at - 43, excuse me, and then at 44 the Full Court says:

PN108

There can be little doubt that it is contrary to this fundamental principle for employees to find out only after an order has been made that they are potentially liable for financial penalties if they fail to comply with that order.

PN109

Now, that paragraph goes on to make an observation about the draft order in that case which is apposite here. Halfway down that paragraph:

PN110

The problem of lack of advance notice is compounded by provisions in the draft order by which the employers are absolved from notifying each employee that the ...(reads)... at which the employees were not in attendance.

PN111

So that element of the order reinforced the vice that the Full Court identified in the applicant seeking to bind employees who had not been notified of the application or the hearing. In our submission the whole of 2.1 and paragraph (c) should be excised from any order in order for the order to be valid in the circumstances. If the Commission takes a contrary view of that then the categories in (i), (ii) and (iii) make no connection between persons who might fall into those categories on the one hand and persons who may be engaging in industrial action in the other.

PN112

If that form of order in paragraph (c) remains as it is subject to the excision of the words "or eligible to be members" that has already been offered, but even subject to that exception, on its face there's no connection between people who would be subject to an order that industrial action stop, no nexus between those persons and - no identified nexus between those persons and persons who may have been at the meeting or failed to attend for work today, it would impose obligations on persons who had no connection whatsoever, including people who might be on annual leave today and had no connection to these events whatsoever. And that comes back to the vice about not serving people and identifying individuals. With respect, I'm sorry, I interrupted the Commission.

PN113

THE COMMISSIONER: Let's take for instance that scenario, let's assume that there is somebody who fits within those categories who is a member of the union, who's employed with the company under these agreements who's on annual leave, well, if the order does apply to them what danger is there for them?

PN114

MR BORGEEST: Well, it's difficult to speculate. I don't know who - I just don't know what circumstances people would be in. In the one I identified about someone being on annual leave it's difficult for me to respond and say I can see a danger for them. If they're on annual leave and an order is made against them, that particular person, I can't describe a scenario where they run foul of the enforcement provisions. But you never know until you see a particular individual's circumstances. It's a part of the reason why an individual who is going to be bound by an order ought be given notice of the order and notice of the hearing and an opportunity to address.

PN115

So the primary submission, Commissioner, is that for the reasons outlined by the Full Court and for the fact that there has been no compliance or attempt at compliance with the rules of the Commission that I identified, that there is no capacity for an order to be made finding on the employees in their individual capacities. Can I take the Commission next to paragraph 3.1 and 3.2 and 3.3, now, these submissions are only necessary for the Commission to consider if the Commission is against me on the question of whether the employees are bound but I'll pick up the same submission again a little later. 3.1 says:

PN116

Each employee must immediately stop and not engage in any industrial action.

PN117

And then that term industrial action is defined in 3.3 very broadly. You have in 3.3 a failure or refusal to attend for work, (b), a failure or refusal to perform any work at all if they attend, (c), any ban, limitation or restriction on the performance of work, or an acceptance of or offering for work, and (d), a performance of work in a manner different from that in which it's customarily performed. Now, what's attempted there is effectively a very broad prohibition on a much wider range of conduct than the conduct you have been told is happening and this difficulty was discussed by the Full Court also and I'd ask the Commission to paragraph 39 which appears on page 26 of the print that I have. Commissioner, if the page numbers I'm using don't match your print I have another copy.

PN118

THE COMMISSIONER: If we just use the paragraph numbers I’m good.

PN119

MR BORGEEST: Okay. Paragraph 39 where the Full Court records that -

PN120

The duty of the Commission is to make orders and that duty is confined by section 496(1) to orders that the industrial action stop, not occur or not be organised.

PN121

And the reference to the industrial action must be the action which the Commission apprehends is happening, et cetera. Now, nothing is pressed on the Commission today by the applicant by way of threatening or organised but that they do submit that the industrial action is happening and we can't deny that the industrial action by the employees is happening, but it's the industrial action about which the Commission is duty bound to make an order and restrict it to making an order. The final sentence of that paragraph:

PN122

The Commission's duty and power is limited to the industrial action that is the subject of the application before it.

PN123

THE COMMISSIONER: How do I rationalise that with section 496(9)?

PN124

MR BORGEEST: I take it that's the statutory direction - sorry, relieving the Commission of the requirement to identify the action.

PN125

THE COMMISSIONER: Well, in ordering under subsection (1) or (2) or (6) that industrial action stop, not occur and not be organised, the Commission does not have to specify the particular industrial action.

PN126

MR BORGEEST: It must be the case that the - sorry, I withdraw that. The applicant has identified industrial action for you.

PN127

THE COMMISSIONER: Yes.

PN128

MR BORGEEST: The application tells the Commission that the applicant asserts that there was a meeting and that the employees have ceased work.

PN129

THE COMMISSIONER: Yes.

PN130

MR BORGEEST: Now, neither of those factual assertions are challenged. We put them in the particular context we have, but the application before you is an application concerning the fact that some people have just simply refused to come to work. Now, some aspects of the 3.3 definition offered by the applicant might be apt to describe in a very general way what is going on but on no view is the application - is the industrial action which has agitated the applicant here an instance of a performance of work in a manner different from what's customarily done.

PN131

THE COMMISSIONER: Isn't the statutory fairly clear that let us in this case say that an order issues on a very narrow basis that the employees in effect must attend for work per their roster, let's say that they then comply with that but then refuse to do any work, which isn't falling foul of the order? Isn't the statutory direction really designed to stop everybody spending a lot of time up here doing this day after day as the industrial action changes and morphs into different things? But commonsense would say it's the same issue but a different type of industrial action is occurring.

PN132

MR BORGEEST: Well, if there was that kind of a pattern, the Commission has a restricted duty in respect of the orders that it can make but it is empowered to take a commonsense view about patterns of conduct, for example. So on that kind of scenario that the Commission refers to, if there was an order to stop a particular kind of industrial action quickly followed by a kind of a change in the tack, then depending on all of the circumstances an applicant might make some persuasive submissions that industrial action is not only happening but is threatened and might give the Commission a sounder basis to make a broader order.

PN133

All that has been put before you is that a significant number of employees have just simply not come to work today or have left work after the meeting and as explained in the TWU case, in the absence of evidence about organisation, in the absence of evidence concerning threatened and probable and there's no submissions that any of those conditions are present, then the Commission's power and duty is limited to making an order that the industrial action stop. That's the import of what the Full Court has told us. So on that view, again this is arguing the submissions on the basis that the Commission is against us on the question of binding employees, the form of order proposed by 3.1, 3.2 and 3.3 are impermissibly broad.

PN134

3.4 is unexceptional and that's effectively a restatement of the limits of the Commission's jurisdiction in any event with respect to orders of this kind.

PN135

THE COMMISSIONER: Like annual leave?

PN136

MR BORGEEST: Thank you, Commissioner, yes. Now, 3.5 is impermissibly broad in two ways. The first is in the way that I've described previously in connection with the elements at 3.1 and 3.2 and 3.3 and that is that the draft at 3.5 in subparagraphs (a) and (b) refer to any industrial action and where 3.5 refers to industrial action, the definition proposed in 3.3 is picked up. The second element arises from a discussion at paragraph 50 of the TWU case where the court was there considering - sorry, I withdraw that. I was referring there to paragraph 50 of the TWU case which is really apposite in respect of 3.6 and 3.7 and I apologise and withdraw that.

PN137

The order directed at the union, and we've conceded that the union has been properly made a respondent to this proceeding, could not involve in it an assertion that the union has engaged in any of this conduct but may certainly say that the union must not engage in organising the industrial action if the Commission finds that the union has. The order can say the industrial action must stop. Indeed the Commission appears to be bound on the TWU analysis, the Full Court analysis that if the Commission is satisfied that industrial action is happening the order must state industrial action must stop. But with respect to the order binding the union and any positive obligation on the union, the order can do no more in our submission than say that the industrial action must stop.

PN138

What the language in 3.5 does is by saying cease and desist from, cease and desist from, is that it contains an assertion and invites the Commission to adopt the assertion that the union has done any or all of those things in (a) and (b). If the Commission believes it proper to make an order binding on the union to the effect that industrial action stop it would be one thing to say the union must not do these things in (a) and (b), but it's a different thing altogether to say cease and desist, Certainly not without a positive finding on the part of the Commission, that it is satisfied that the union has done these things.

PN139

An order to the effect that the industrial stop need go no further than prohibiting the union from doing (a) and (b). It might be achieved by removing the words -

PN140

is directed to immediately cease and desist from.

PN141

Replacing them with words such as must not. If I can turn to paragraph 3.6 and 3.7, these provisions are the kind of adventurous terms that we're seeing with more frequency in this Commission which involve seeking to make the union some kind of enforcement body and it was discussed in about paragraph 52 of the TWU case where the Full Court there said look, if it's sought to make the union take some particular positive steps to itself become an instrument for enforcing the order against other persons, its members, the starting point would have to be some clear finding that there was a direction, advice or authorisation to the members who were engaging in the industrial action.

PN142

In other words, if the Commission is satisfied that the union had issued a direction and in some cases you even see that, you see, you know, the union passing resolutions, directing members or calling on members to engage in industrial action of various kinds and response to findings and evidence of that kind the Commission has sometimes said, well, the order is that that authorisation or direction be revoked and cancelled and so forth. Well, what the Full Court is saying in paragraph 52 here is that really in the absence of circumstances of that kind it's not appropriate to require positive steps of this particular kind. So that general submission we advance in respect of all of 3.6 and 3.7.

PN143

I want to make the following additional submission about part of 3.7 and it's that part appearing at paragraph (c), that's the part of the proposed order whereby the applicant invites the Commission to require not only that the union become a kind of enforcement mechanism but to deliver up to its solicitors particular details about the steps that it has taken in compliance with the order. Now, that on no view is a term like that ancillary to the Commission's jurisdiction to order that industrial action not occur. It's a kind of order which is designed to require the union to do something and then present material which the applicant's solicitors can then scour over and work out whether there's a ground to have a go at us for contempt of the order.

PN144

A term of that kind was discussed in paragraph 53 of the TWU and the Full Court said that -

PN145

It is difficult to see how an order obliging a union to report to the employer the particular steps it has taken to comply with the order, it is difficult to see how that can fall within the ambit of the Commission's powers under 496(1).

PN146

Now, 3.8 would fall away if 3.6 and 3.7 did not commend themselves to the Commission. As to 4(a), we presume would have some necessary amendments based on the amendments to the application that arose during the exchange between the Commissioner and my friend. But as to (b) and following from what had fallen from the TWU, if the Commission was against me on my primary submission about this order binding employees there's no reason in principle why the applicant should not have the ordinary burden of serving persons that it would wish to be on notice about the order and to be on notice about their obligations.

PN147

If the applicant which in the ordinary course of business would have the most current contact details for each of the persons, it's the applicant which would know through its supervisors and its rosters precisely which persons they reckon have not been in attendance at work today and whose notice ought be immediately brought to the attention of any order. No justification is offered why the burden of giving notice should be relieved from it. So the effect of 4(b) is that the applicant is inviting the Commission to make very serious consequences follow in respect of a person who did not know of the order, who did not know of the hearing - sorry, did not know of the application, did not know of the hearing, did not know of the making of an order and could be held to be contravening an order about which they know nothing. Those are our submissions on the form of the order.

PN148

THE COMMISSIONER: Thank you, Mr Borgeest. Ms Casellas, is there anything you want to respond to there?

PN149

MS CASELLAS: Yes, sir, just in relation to my friend's submission as to the TWU case and what it is authority for. At paragraph 45 I think it is clear that there are circumstances where it is not necessary to serve all of the members of a union in an application such as this one and where it says:

PN150

Even if there remain cases in which the Commission can legitimately say that interests of employees are represented adequately by an organisation -

PN151

Well, we say that this is one of those cases, sir, and I pick up on a comment that my friend made earlier which was that Mr Cain, the TWU organizer received a very large number of telephone calls from members yesterday afternoon and then he came and we say that he arranged a meeting. He says that he was asked to come to a meeting by the members. We say this is clearly a situation where the TWU adequately represents its members by simple fact that there was a TWU organiser who was at the meeting this morning apparently receiving large numbers of phone calls from members.

PN152

This is not a situation we say where the employees are doing anything of their own volition. We didn't have a representative at the meeting and we can't lead evidence as to what was actually said. But it would seem strange if the employees, a large number of them, would ring up and invite their union organiser to come and address them and for them to then independently elect not to follow his advice. The point of the submission is to say that we don't think this is a case where they needed to be served individually and this was a case where the TWU was effectively representing its members interests.

PN153

THE COMMISSIONER: Ms Casellas, you may need to seek instructions on this, I inquired earlier as to the roster for today which I understood means that some employees would be working through till 11 o'clock tonight, are you able to just advise me what over the weekend work would normally be done?

PN154

MS CASELLAS: Yes, sir, I'll get some instructions but I understand that there are a small number of employees who are rostered to work on Saturday. On Sunday there's about four and Saturday would be between 10 and 20, depending on the work required.

PN155

THE COMMISSIONER: And then the bulk of 148 would be back at work on Monday morning?

PN156

MS CASELLAS: Yes, sir.

PN157

THE COMMISSIONER: That's helpful. All right, thank you, Ms Casellas. In a moment it's my intention to adjourn. I will consider my decision and resume in due course and provide reasons for that. That may take a little while but it won't take too long so I would appreciate if you could all stay within the vicinity of the court area. Thank you. The Commission is now adjourned.

<SHORT ADJOURNMENT [3.41PM]
<RESUMED [4.28PM]

PN158

THE COMMISSIONER: This is my decision on the section 496 application before the Commission this afternoon. I reserve the right to edit the transcript as maybe necessary and in due course will provide the parties with written reasons for this decision.

PN159

I have considered the submissions of both parties and based on the concessions that have been made by the respondent I am satisfied that in this case it does appear to me that industrial action that is not protected action is happening and is being taken by employees of the applicant who are subject to the Workplace Relations Act 1996. To the respondent's credit there has been the concession that industrial action is occurring. The industrial action is question I find is that the employees of the applicant have not remained at work today and have not completed their normal rostered shifts and their failure to remain at work is not authorised.

PN160

I am also satisfied that this application for an order under section 496 has been made by an applicant who is a person who is affected or is likely to be affected by the industrial action. Consequently I am required by section 496 to now make an order that that industrial action stop. My associate in due course will provide you with a copy of that order. The parties will see that that order is significantly different form the application that has been filed. I have significantly redrafted the order to meet the requirements of recent decisions of both the Federal Court and the Full Bench of this Commission, taking on board a number of the submissions made by Mr Borgeest on behalf of the respondent.

PN161

On that basis the Commission is now adjourned. Thank you and good afternoon.

<ADJOURNED INDEFINITELY [4.30PM]