C2008/2044, Transcript of Proceedings [2008] AIRCTrans 390 (25 July 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18785-1

COMMISSIONER WILLIAMS

C2008/2044

s.496(1) - Appl’n for order against industrial action (federal system).
Alcoa of Australia Limited
and
The Australian Workers’ Union
(C2008/2044)

PERTH

10.18AM, SUNDAY, 13 JULY 2008

PN1

MR J BLACKBURN: I appear, with MS J MARCHESE of Blake Dawson, on behalf of the applicant.

PN2

MR M LOUREY: I appear for the Australian Workers' Union.

PN3

MR BLACKBURN: I apologise, Commissioner, I seek leave to appear.

PN4

MR LOUREY: Likewise, Commissioner.

PN5

THE COMMISSIONER: Yes. We're all on the same page with that, gentlemen. Leave is granted to both of you to appear. I think we have Mr Swan on the phone from New South Wales who is associated with the AWU, I think.

PN6

MR A HACKING: Mr Hacking on behalf of myself.

PN7

THE COMMISSIONER: Okay. I'm sorry, Mr Swan. We may not have quite heard that, Mr Hacking, because I and Mr Swan were speaking. If you'd just like to - - -

PN8

MR HACKING: Yes, Andy Hacking, here on behalf of myself.

PN9

THE COMMISSIONER: Thank you.

PN10

MR D LEA: I'm here on behalf of myself.

PN11

THE COMMISSIONER: Thank you, Mr Lea, Mr Hacking. All right, Mr Blackburn, it's your application. If you'd like to explain it to me, please.

PN12

MR BLACKBURN: Thank you, Commissioner. This matter arises as a result of a strike at four sites operated by the applicant and the strike commenced yesterday at each site shortly after 2 pm. At each site there was an AWU meeting. The evidence will indicate the convenors were involved in organizing those meetings and at each site following the meeting the employees left work. There is an expired EBA, but there is no bargaining period in place, nor has any notice of industrial action been given, so the industrial action is in every sense unprotected.

PN13

You will hear evidence about the role that the AWU has played in the matter orders are sought against the AWU and against convenors at both the Kwinana Refinery and the Wagerup Refinery, the four sites at which action was taken at the Kwinana Refinery, the Wagerup Refinery and the Willowdale and Huntley Mines. An application is sought seeking orders against the AWU itself as well as the convenors at the Kwinana and Wagerup sites who are Mr Hacking and Mr Lea who are present in the court having previously been served with the application and orders are also sought against members of the AWU concerned.

PN14

The evidence will be that the AWU through its convenors is organizing and representing the members in the dispute, as evidence will be called, a strong union involvement on the sites manifested by each site having a full time paid convenor. The union certainly represents these employees and has ready access to them. The participation of the AWU at the sites and also in this particular dispute is such that firstly it can be said that service of this application on the AWU ought be sufficient service on the employees, sufficient for the purpose of bringing this application to the attention of the employees concerned. The orders sought are restricted to members of the AWU and in that case in that respect this matter differs from the TWU case and went to the Federal Court.

PN15

The participation of the AWU at the sites and in this dispute is also such that the AWU can truly be said to be representing the interests of its members in this proceeding. So evidence will be bought as to the involvement of the AWU both at the site and in respect of this particular dispute and of course that evidence goes not only to whether the service on the union can be said to be service on the employees and where the union represents the employees for the purposes of the proceeding, but it also goes to the question of the extent to which the union has been involved in organizing the action and it goes to whether the form of orders that can ought be made against the union.

PN16

Now, the AWU involvement in respect of which evidence will be brought includes meetings at 2 pm, or thereabouts, at each of the sites following which, as I've indicated, the AWU members went on strike. At Wagerup there'll be evidence that Mr Lea, who is the convenor there, and both Mr Lea and Mr Hacking are full time paid convenors, that's their sole function, is to act as convenors, albeit they are employees of the applicant. At Wagerup at about 1.30 Mr Lea called John Beavan, who is one of the applicant's managers, and said words to the effect, "The AWU will be stopping work for a meeting at two. Level 13s will stay in the operation center to operate the board." These are area of process controllers or area of process specialists. If people don't stay in the control center then the whole refinery must shut down.

PN17

So Mr Lea said that Level 13s would stay in the operations center to operate the board and then he said words to the effect, "I don't know when he AWU will be returning to work." At about 2.50 after the meeting Mr Lea called Mr Beavan back and said words to the effect, "The AWU will not be returning to work indefinitely. The Level 13s will stay and emergency crews will be available and I'll be meeting with the night shift when they arrive and we'll let you know whether they'll be working." And then AWU members left the site as Mr Lea had indicated.

PN18

The Kwinana employees also stopped work after a meeting. At about quarter past two Mr Hassan, who is a deputy convenor at Kwinana, was heard to ring the control room and direct the area process controllers there to leave the control room and leave the refinery. At about 2.40 Mr Hacking, who is the primary convenor at Kwinana, accompanied by Mr Hassan, told Richard Bath, the applicant's HR person at Kwinana, that it was an indefinite strike at a number of sites and it was over a number of issues, including not having business center meetings, these are apparently monthly meetings with union representatives, something called a consequence of system which has to do with reviewing safety incidents, and not following the intent of the EBA, though that wasn't explained.

PN19

Mr Hacking indicated to Mr Bath that Ben Swan, who is the Assistant National Secretary of the AWU, knows all about it and Mr Hacking indicated that the area of process specialists would come on site that evening and fire crew would be covered and the area process controllers would stay until relieved by staff, but wouldn't come in in the evening. There's two categories of people in the control room, area process specialists and area process controllers, but all the other employees were going out.

PN20

Later that evening at Kwinana at about ten past five Mr Hacking and Mr Hassan were outside the gate waiting for a meeting of employees and Mr Hacking told Mr Bath that the strike was again, at this time he said it was about the continuous breach of the EBA and not having monthly business center of operational center meetings, and Mr Hacking again said that Mr Swan was aware of the issues. There was then a meeting outside the gate at Kwinana. A number of employees turned up ready for work and they met with Mr Hacking and Mr Hassan, but after talking to Mr Hacking and Mr Hassan, they left and either Mr Hacking or Mr Hassan then rang David Hay from Alcoa to tell him that the AWU members "were not coming in tonight" and they indicated to Mr Bath that they didn't know when the employees would be coming back in.

PN21

Now, at the two mine sites, Huntley and Willowdale, the same things happened. Union meetings had been called at 2 pm or thereabouts after which employees have gone on strike. Now, we will say that the fact that four sites have called meetings about exactly the same time and that at each site the result of those meetings is exactly the same indicates the strikes are not merely unplanned consequence of some spontaneous activity by groups of individuals. It's clear that the four meetings and the four strikes have been planned and coordinated and when coupled with the fact that in each case the strike has been preceded by a union meeting, the irresistible inference is that the action has been planned and organized by the AWU.

PN22

When you add to that the evidence you will hear and which I've summarized as to the role played at Wagerup and Kwinana by the AWU convenors, Mr Hacking and Mr Lea, there's no doubt that the AWU has planned and organized the action and that it's representing the employees in the dispute. Of course, you don't need to find, Commissioner, that the union engaged in industrial action to make orders against the union. It's enough that the orders you make have a rational tendency to stop the action or to ensure that action does not occur. That part of the Full Bench decision of the Transport Industry case was left untouched by the Full Court on appeal. The Full Court said once you make the necessary jurisdictional findings, that industrial action is either occurring or is threatened or is being organized, then you can make orders which are designed to ensure that that no longer occurs and it's up to the Commission to determine who is the target of those orders.

PN23

So it's not strictly necessary to find that the AWU has engaged in industrial action in order to make orders against the AWU provided those orders have a rational tendency to deal with the industrial action that there is clear evidence of. In any event, we say in this case the AWUs paw prints are all over this matter. Mr Hassan, Mr Lea, Mr Hacking in particular at Kwinana and Wagerup have been instrumental in ensuring that employees have gone out on strike and not attended and not commenced the shift in the case of the night shift.

PN24

The employees have still not returned to work and therefore the orders, Commissioner, are in almost identical terms to the orders in the Olinta case that you dealt with recently and the orders that you've issued in the Alcoa case recently which Mr Heeland(?) appeared before you on behalf of Alcoa, that was relating to the Pinjarra site. So the orders address all of the issues raised in the TWU Full Bench case and unless any particular part of them is challenged I won't take you to them in any detail or to the parts of the Full Court decision which support a particular order, that is to say, they are in precise and the same terms as the orders made in Olinta and the previous Alcoa case that you dealt with.

PN25

On that basis, Commissioner, unless you have any questions I'll proceed to call our first witness.

PN26

THE COMMISSIONER: Thank you.

PN27

MR BLACKBURN: I call Mr Richard Bath.

<RICHARD JOHN BATH, AFFIRMED [10.30AM]

PN28

MR BLACKBURN: I understand we have two more people downstairs including Mr Butson who is to be one of the witnesses and perhaps if some arrangement can be made for them to be admitted into the building, if that's possible.

PN29

THE COMMISSIONER: Yes, we will let them in, Mr Blackburn. Mr Lourey?

PN30

MR LOUREY: Sir, not seeking to interfere with those arrangements, but I wonder if there's to be a number of witnesses, I wonder if it's appropriate that an order issue at this point that all those who are to give evidence perhaps remain outside the hearing room unless and until they've been excused from giving further evidence.

PN31

THE COMMISSIONER: Yes, thank you, Mr Blackburn. Do you have any concerns with witnesses being out of court?

PN32

MR BLACKBURN: No, Commissioner.

PN33

THE COMMISSIONER: Now, Mr Blackburn, you're saying that your remaining witnesses are - are they both downstairs?

PN34

MR BLACKBURN: There is one further witness downstairs and there is another gentleman with him and they are both downstairs, yes.

PN35

THE COMMISSIONER: Sorry, are they both witnesses or - - -

PN36

MR BLACKBURN: No, only one of them is a witness.

PN37

THE COMMISSIONER: One is. Are there more than two witnesses in total?

PN38

MR BLACKBURN: Yes, there are, there are several witnesses.

PN39

THE COMMISSIONER: Okay, and are they here in the court room?

PN40

MR BLACKBURN: Yes, they are.

PN41

THE COMMISSIONER: We can start by, Mr Blackburn, if you can arrange for any of the other witnesses to now step outside of the court, please, and they'll be called in due course when their evidence is required. Mr Lourey, can I ask you what's the position from your perspective in terms of witnesses?

**** RICHARD JOHN BATH
PN42

MR LOUREY: We're not sure at this stage, sir, whether any witnesses will be called. We need to hear the applicant's case at this stage. Certainly there'll be some cross-examination of witnesses, some, if not all. I didn't associate Madam Associate that the union was not sure at this stage whether it would be seeking to call witnesses. Certainly we reserve the right to do so.

PN43

THE COMMISSIONER: Thank you. Mr Blackburn, I might now then arrange for my associate to go downstairs and let your other witness in so just bear in mind we'll be without an associate whilst we continue, but I'd like to get on.

PN44

MR BLACKBURN: If the Commission pleases.

<EXAMINATION-IN-CHIEF BY MR BLACKBURN [10.33AM]

PN45

MR BLACKBURN: Mr Bath, what is your position at Alcoa?---I'm the HR Business Partner at the Kwinana Refinery.

PN46

And do your responsibilities extend beyond Kwinana or only - - - ?---No, essentially Kwinana.

PN47

How many employees are there at the refinery that would be affected by this dispute, how many AWU employees?---Round about 430 employees, give or take a couple, but that's the general number.

PN48

What sort of shifts do they work?---There's a five panel 12 hour shift. There's also a number of 10.3 shifts as well. So a day, 10.3 shift, they're essentially the main categories of shift patterns that we have for AWU covered employees.

PN49

So you had employees working yesterday during the day?---Yes.

PN50

Was there a night shift?---Yes.

PN51

And was work to be performed today?---Yes.

PN52

And tonight?---Yes, yes. Shifts were planned and expected people to attend, business as usual.

PN53

The work that's performed by employees who are members or eligible to be members of the AWU, what sort of work is that?---Well, it ranges from a service person, which is a trades assistant type role, which obviously can be working with the tradesmen, et cetera. A number of operator roles, from, you know, base operator roles up to more senior roles where people are controlling the process so our APC roles, so they're people who are sitting in front of the board's running and trying to maximise our tonnage et cetera within the business, make sure the process is running as effectively and efficiently as possible. We also have an APS which is also an expert in terms of the process.

**** RICHARD JOHN BATH XN MR BLACKBURN
PN54

Sorry, what does APC stand for?---Area process controller. APS is area process specialist.

PN55

Where's the APC, the area process controller work?---He or she works in each of our buildings, which are all part of the process and they operate our control rooms. Okay, so essentially I suppose there may have been, just off the top of my head, there may be seven or eight areas that we would have manned. Most of those are two people in each of those areas and then we'll have APSs again in each of the specific business areas as well.

PN56

Then you've got operators?---Operators, so yesterday during the day we would have had people on our equipment care teams. We would have also had people directly related to the production. We would have key people scheduled. I think from memory approximately 40 to 50 people, I think, were rostered on for last night for the 12 hour production shift. Again, we only got these numbers relatively quickly, so again, I say approximate. I had 128 people who were rostered on for yesterday's day shift as well. So subject to some people obviously having taken planned leave, some of those people would be only annual leave or long service leave, but they're the approximate numbers that we got out of the system quickly last night.

PN57

Are there people working today or AWU members and persons eligible to be members working today?---I've spoken to a number of op centre managers today. There have been nobody - no AWU members have worked today that we're aware of. So from - we are running the operation through staff. There are no AWU members that I'm aware of that are on site.

PN58

Members or persons eligible - - - ?---On persons to be eligible, yes, yes, in that category.

PN59

Do you have any indication as to what the extent of AWU membership is on site?
---It would generally be in the high 90 per cent range, I would assume. The union generally - and we operate pretty much on the basis that pretty well everybody seems to be a union member and the AWU and the convenor, Andy Hacking, and deputy convenor Glenn Hassan certainly represent the AWU and those employees. So I can't think of an instance when we've dealt with a matter where the AWU haven't been involved in recent times.

**** RICHARD JOHN BATH XN MR BLACKBURN
PN60

You mentioned a convenor and a deputy convenor. Can you tell me about the convenors and any delegates that you have at the refinery and how they operate and what they do?---So effectively the structure of the AWU at Kwinana and I think generally at our other sites as well we have a full time convenor, Andy Hacking. He's an employee of Alcoa, employed since, I think, 1992. His role - he doesn't have an operational role if you like. He has his own office. He works on a nine day fortnight and his role is to represent AWU members and be involved with issues, whether they are particular grievances on an individual employee basis, but also to be involved in the dispute settlement procedure. There was a clear step in terms of the EBA when the union convenor becomes involved. There is also representation with our combined sites' union meetings that we have with Mr Hacking, Mr Lea are involved in that structure as well. So that's a clearly embedded role. There is a position description as well outlining the responsibilities of the role. The deputy convenor at Kwinana, Glenn Hassan, he is an area process controller in our op centre too. He has a substantive role, which is this APC role. However he is also involved and released from those duties to be involved in, for example, EBA - we've had some preliminary discussions around EBAs involved with that. He comes to our combined site meetings as well. So there's clearly a well structured, well embedded roles that we actually have in our relationship with the AWU. Within each op centre there's usually a senior delegate or two as well and there is generally a union delegate, if you like, on each shift, generally speaking, for each op centre as well. We communicate with Mr Hacking on a very regular basis. I'm probably in touch with him probably generally at least daily either by phone or meetings. We have a regular catch up meeting, myself and David Honey, and again to discuss any particular issues that are coming up, current issues, any other things as well that are around.

PN61

Thank you. You mentioned an agreement. Is that the Alcoa World Alumina Australia WA Operations AWU Certified Agreement 2005?---Yes.

PN62

Now, what is the effect of the employees not being at work, what does that cause the refinery to do or not do?---It effectively causes us to move to a crisis management footing, really, in terms of developing - to get - to cover the people who have left site. What it means practically is that the staff are required to continue the refinery to operate safely and so practically, from about half past two yesterday afternoon it requires us to get all of our op centre managers and supervisors to start planning about how we're going to cover. So the impact can be financially in terms of potential reduction in the alumina that we produce, and obviously we're not running it in the way that we would like to run it. There is, you know, I think a greater risk potentially of safety or environmental issues because we don't have as many people on deck, but people are experienced to operate in those areas. So we manage to work that if we can. But it's not a long term sustainable footing, obviously. It's a short term counter measure, but we continue to operate.

**** RICHARD JOHN BATH XN MR BLACKBURN
PN63

If I can ask you now to turn your mind to the events of yesterday. You, as I understand it, attended the Kwinana site at about half past two, is that right?
---Yes.

PN64

Can you tell me what you saw and who you spoke to?---Yes, sure, okay. So I got a telephone call at about 20 to two from David Honey, our production manager. He had a concern that he'd heard that there was potentially - there was a stop work meeting happening at 2 o'clock. He rang me to see whether I'd actually given any approval for such a meeting. I indicated that I hadn't and I wasn't aware of it.

PN65

Did he say how he knew?---He heard that through our PC, that's our sort of process controller, he had heard - so generally speaking after hours, if there's an issue or if there's any number of issues, the PC is generally the point of - - -

PN66

MR LOUREY: Sir, can I just interject? Perhaps, I'm wondering whether we're going to hear from Mr Honey. We're hearing from Mr Bath at the moment how Mr Honey had heard something from someone else and I'm just wondering how far that goes. Perhaps my friend could clarify if Mr Honey is in fact going to come and give this evidence.

PN67

MR BLACKBURN: No, Commissioner, in the interests of some expediency, I'm trying to get the matter dealt with today. We won't be calling every person that had an involvement. It's a question of weight that you give to any hearsay. Obviously it's a question of weight, but we're not going to be calling every last person that's had a conversation.

PN68

THE COMMISSIONER: Well, Mr Lourey, I'm not too troubled about what Mr Bath is saying at the moment, but if it becomes critical, I'm sure you will object again if it's a hearsay issue. Yes, Mr Blackburn, carry on.

PN69

MR BLACKBURN: Mr Bath, so you had a call from Mr Honey and you attended the site?---Yes, sir. Look, after that call I rang Mr Hacking. He didn't answer. I left a message for him to give me a ring back to clarify if he'd heard anything, if there was a particular issue going on, so he didn't answer my call. I rang a couple of more times. I didn't get through. I then rang Mr Hassan, you know, any issues if you think are happening, our next step is to ring the deputy convenor, that's our usual approach, and then I had heard that there were potentially some issues happening at other sites. So I decided to go home, get changed and drove to Kwinana. So I drove through the gate at about 2.30. There were a number of - there was quite a few people leaving which seemed odd at that time of the day. As I was driving down the hill Mr Hacking was driving out, so I tried to ring him again. I then pulled up and Mr Hacking obviously turned around and came back and as I was getting out of the car Andy - Mr Hacking showed up and I asked, "Look, what's going on?" Mr Hacking indicated that there was an indefinite strike at Kwinana and some of the other sites and I asked, well, you know, why, why was that actually happening. He indicated that, you know, we hadn't been having our BC meetings, which is our business centre or operational centre meetings. An issue about the consequence of system and an issue around the intent, not following the EBA. I indicated, "Well, this is a pretty serious issue that the AWU have entered into," if you like, and I then also did ask him - he also said that Ben Swan, who's the assistant national secretary, had spoken to Kim Horn about it and was coordinating it and Kim Horn being our director of HR at Alcoa. So I suppose after that initial shock that there was more than obviously - there was a stop work meeting. People actually weren't coming to work which was kind of obvious when I drove into the gate with people leaving. I asked - I suppose the next thing I asked about was about this APS coverage because there's certain obligations about APS coverage in the EBA. Mr Hacking indicated that people - that fire crew would be covered, APSs would be remaining, APCs, if there were no staff, they would stay until staff occurred, and that was probably to a large extent the extent of the discussion. I obviously indicated that we'd need to talk about this further. And then really, that was it in terms of communication with the union from my perspective till ten past five - sorry - - -

**** RICHARD JOHN BATH XN MR BLACKBURN
PN70

Before we move to the ten past five. You mentioned the issues that Mr Hacking had put to you were not having BC meetings?---Yes.

PN71

Can you just explain what those BC meetings are?---Well, our op centres or
BC - we call them op centres at Kwinana - - -

PN72

How many op centres do you have?---There's functionally in terms of AWU that we're talking about, we're talking about one op centre, op centre 1, 2, 3, 4, 5, which is a dual one, and OC10. So I think that's five - and 7 as well. So they're our key op centres that we're talking about. Now, we - I'm not sure whether all those meetings occurred. They happen at the local level within the op centres and I haven't been aware that there was a particular issue with that meeting, certainly not something that Mr Hacking has raised with me in - I can't remember.

PN73

That's fine, and consequence of system, what is that?---I think - well, we never really got a chance to delve into that too much, but I'm assuming it relates to the safety consequences model that Alcoa has.

PN74

What's that, a system of reviewing?---Reviewing incidents, seeing if there's a behavioural component, if there is a behavioural component, there's a process to review it and there's a consequence that can be applied to it, it can be a negative consequence, so, if that's required.

PN75

Did Mr Hacking give any detail around not following the intent of the EBA?
---Not - no, not at that time.

PN76

Thank you. Now, you said then that your next contact with the union was about ten past five, I think you were saying?---Yes. So ten past five I was aware that Glenn Hassan, the deputy convenor, was standing on the main sort of thoroughfare or footpath, if you like, from the main employee car park. It's basically an area that if you're - if you park your car in the main employee
work - you know, the main employee car park and you're walking to the refinery to work, you basically walk past and along that footpath. When I was first approached Glenn, Mr Hassan at ten past five, he was sitting there. I said, I walked in and said, "What are you doing here?" He said, "Well, we plan to have a meeting." I asked him, you know, "What's going on with the strike?" You know, and he said, "Well, we've having a meeting and we'll sort of get back to you after that point." It was - so people were - AWU - well, people were coming to work, ready to work, some were carrying bags and walking past and we sort of moved on. Mr Hassan indicated that Mr Hacking would be arriving shortly to talk to people. We sort of hung around in that general area. More people amassed who came to work, stopped there where Mr Hassan was. A number of people went down and spoke to Mr Hassan again. That was actually before Mr Hacking had arrived and we said, "Look, when Mr Hacking arrives, we'd like to obviously talk to him about what's going on." We all walked up and then Mr Hacking arrived. We had a brief discussion with him and there were a couple of others that were around and again it was put to him what was the reasons for the strike and what's going on, what's this all about. He said, well, it was regarding breaches of the EBA and he also indicated that, you know, Ben Swan was involved or he was - I can't remember the exact words without my notes in front of me, but he was coordinating or involved in the - or knew about this matter as well. That was probably the extent of that discussion. There was also some discussion at that time, just making sure that APSs were available to cover in accordance with the EBA. They were reasonably brief discussions I think at the time. We then moved away. More employees showed up for work.

**** RICHARD JOHN BATH XN MR BLACKBURN
PN77

These employees, when you say they showed up for work, what gave you the impression that they were showing up for work as opposed to turning up just to meet?---Well, they were - they would - some were carrying bags as if they were coming in to work. You know, most of our people come - our production guys, they come reasonably casual because they go and get their overalls in the amenities room and whatever, but some were carrying bags. By the time, about 6 o'clock or so there was quite a few people there. It's hard to probably put a number, but there was probably - I think approximately 30 people. They were in deep discussion, surrounded by Mr Hacking and Mr Hassan. We, the management group, had a meeting at 6 o'clock or around that part, to talk about the night's events and where we were at. During that meeting Mr Hacking rang Mr Honey. I was next to Mr Honey at the time and Mr Hacking indicated that they'd had the meeting and employees weren't coming into work tonight. I actually rang Mr Hacking back because I just wanted to clarify this APS issue about coverage. So we had a discussion about APSs. I think the general gist of it was that APSs would be brought in, if one was sick or not available that they would be made available. If it wasn't there would be an APC, would be available as a counter measure. I again asked Mr Hacking whether, you know, people were coming back to work tonight and he indicated no, and sort of asked how long this was going on, and he didn't have a position on that. But it was - so that was basically the recollection of events up to that time.

PN78

All right. I think you've indicated previously that there are no AWU category people working today?---Yes, no. I don't believe there are any. I haven't been down to the site, but I've had the - the ops centre managers that I've spoken to have indicated that there are no AWU members on site. They are still out on strike.

PN79

Thank you. No further questions, thank you, Commissioner.

<CROSS-EXAMINATION BY MR LOUREY [10.54AM]

PN80

MR LOUREY: Mr Bath, there are approximately 430 people in what you refer to as AWU categories employed at the Kwinana site?---Approximately.

PN81

And of that 430 you say a number had a meeting yesterday during the day, about 2 o'clock or thereabouts, and didn't return to work, and what was that number?
---No. I don't know what that number was. I was talking about the meeting later. When I - I believe a meeting took place but by the time I arrived at Kwinana at approximately 2.30 people were leaving the site.

**** RICHARD JOHN BATH XXN MR LOUREY
PN82

So you're not aware of how many people approximately attended that meeting or went home after that meeting. You've given evidence that there was a meeting. You're aware there was a meeting and people went home?---Yes.

PN83

Do you have an idea how many people that involved?---No, no, I wasn't on site at the time.

PN84

Now, you've mentioned that in relation to the afternoon meeting, as it moved on closer to 6 o'clock, there were as many as 30-odd people involved? Did you watch the meeting?---I watched part of it.

PN85

Is that the number that attended the meeting, or were there more there?---Look, approximately it was around about 30. You know, I was - I didn't go up and count them all, but that was my approximate. There was a reasonable group there having a discussion.

PN86

How many people would you have - and you can be approximate, but how many people would you have routinely expected of the AWU categories to have attended or to have commenced work at about that time last night?---Look, from the numbers I looked at I estimate that there was about 40-odd from the list that I looked at, but I don't want to be absolutely certain because we ran the shift numbers for that, but I counted up about 40 for last night.

PN87

So what list are you talking about there?---Just our number of employees who were on the shift the last night, the shift pattern that they were on.

PN88

So there was a shift pattern that was on. So does that imply, I think you've mentioned that there are five panel shifts?---Yes.

PN89

So there was a shift pattern or a shift panel on last night. So there were a number of - - - ?---There should have been.

PN90

There were a number of panel shifts not on last night?---Well, there is obviously people who were rostered on last night, who were meant to turn up at work last night and they didn't show up, but that number generally is around the 40-odd mark from what I understand.

PN91

But equally there were a number of panels who were not rostered on last night and who weren't expected to turn up?---Absolutely. I'm sorry, I'm talking about the people who were rostered on that shift pattern who were then meant to be there, starting work to do the night shift.

**** RICHARD JOHN BATH XXN MR LOUREY
PN92

Yes, but of the 430-odd people that you've identified as being in AWU categories, some of those people work 10.3 hour shifts, and that's essentially Monday to Friday work, is it?---Sorry, Mr Lourey, can you just repeat that question?

PN93

Of the 430-odd people?---Yes.

PN94

In AWU categories?---Yes.

PN95

Your evidence earlier was that some of those people are employed on 10.3 hour shifts and that's - I think you mentioned that was a day shift and that's essentially Monday to Friday work?---No. No, it's not Monday to Friday, but it's a day shift, but it covers - - -

PN96

It's a day shift so it covers seven days?---Yes, yes.

PN97

So were some of those 10.3 hour shift people involved in the earlier events of yesterday so far as you're aware?---Yes, yes.

PN98

But of the people who work those 10.3 hour shifts, some of them would have been expected to have been at work yesterday and some of them would not have been expected to be at work, is that correct?---Yes, yes - no, there's different shift patterns but the people - the numbers of people that - again from the report that I ran yesterday, there should have been approximately 128 people on site yesterday, which is a mix of 10.3 and 12 hours.

PN99

And people who were working a 12 hour shift as part of the rotating cycle?---Yes, that's right, as part of their day shift.

PN100

So in terms of all the people who work a rotating cycle there are five panels who do that?---Yes.

PN101

So at the time of the meeting at about 2 o'clock, and I appreciate you weren't present at that point, but is it correct to say there would have been one panel on site?---Of the five panel, yes.

PN102

And four panels not on site or not expected to have been on site at that time?
---Yes, yes. Yes, with - - -

PN103

That's correct, is it?---Yes, on that day for Saturday, yes, yes. There is occasionally times when there's a double up day, but that wouldn't have been yesterday.

**** RICHARD JOHN BATH XXN MR LOUREY
PN104

Now, of the people from the panel who was on site yesterday, are you aware of whether any of those people were on rostered leave, annual leave, long service leave, sick leave?---I can assume that, yes, some of those people would have been on planned leave, obviously not 128 of them - - -

PN105

No, my question was "some"?---Yes.

PN106

So some of them would have been on annual leave, sick leave, rec leave?---Yes, that's right. I mean, there's that panel, yes. Some of them would have been, small percentage.

PN107

Now, of the five panels, one was rostered on yesterday and four weren't. Of those four that weren't one of the panels was then expected to come on and take over from that panel at about 6 pm last night, is that correct?---Correct.

PN108

So of the four panels, so three panels haven't been involved to that point?
---Haven't been involved in what?

PN109

In either of the meetings that you've told us of?---I don't - the people - well, I'm not quite sure if I can answer that question, whether people were involved. I don't know.

PN110

All right, that's a fair enough response. So there were, in terms of the planned shift that ought - that the company would have expected to have commenced at about 6 pm yesterday, they would have gone on until approximately 6 am this morning, is that how it works?---Correct.

PN111

And they would have been then replaced by another incoming panel?---Correct.

PN112

Was that panel to have come in at 6 am this morning, was that the same panel that was involved in the earlier meeting yesterday, or is that by now a different panel?
---Look, without the roster panel - - -

PN113

So you don't know the answer?---I couldn't tell you off the top of my head, yes.

PN114

Now, you mentioned that you saw part of the meeting, is that the evening meeting?---The 5.36 type meeting.

PN115

Was that the beginning of the meeting or the conclusion of the meeting or neither?---I certainly saw it at the beginning because I saw the people were coming to work and stopping where Mr Hassan was and that number grew. So when I first saw Mr Hassan I think one employee showed up at that time, at about ten past five. By the time Mr Hacking arrived at 5.35 there was quite a group of employees waiting around that area and then, you know, that meeting I think went for approximately half an hour. Yes, I think it was approximately half an hour.

**** RICHARD JOHN BATH XXN MR LOUREY
PN116

Did you hear anything that was said within the meeting?---No.

PN117

Do you have any knowledge of how the meeting concluded?---Yes, because Mr Hacking rang Mr Honey after the meeting.

PN118

That was after the meeting, but in terms of the meeting, was there, for example, a vote taken at the meeting or, if you don't know?---Look, I don't know. You'd have to ask Mr Hacking.

PN119

So you don't know how the meeting was conducted?---No. You'd have to ask Mr Hacking. What I do know is that they were, you know, all surrounded, they were waiting for Mr Hacking. Mr Hassan indicated that, and that was shown to be correct because Mr Hacking turned up and he went and addressed the group, so it was clearly a meeting that Mr Hacking and Mr Hassan were conducting.

PN120

Do you say that Mr Hassan told those attending the meeting that they should go home and not attend work?---Look, I don't know, I don't know.

PN121

Do you say that Mr Hacking told those attending the meeting that they should go home and not attend?

PN122

MR BLACKBURN: I'm sorry to interrupt, but the question has been asked and answered and the witness' answer was he didn't hear what was said in the meeting.

PN123

MR LOUREY: I'm happy with that, Commissioner. It can be inferred from that answer that the witness didn't hear anything that Andy Hacking said at the meeting, I'm happy with that if that's your answer. Now, in terms of - you arrived at the site at approximately 2.30 pm yesterday?---Yes.

PN124

Were there at that point and for the balance of that shift were there some AWU category people remaining on site at that point?---The only people who were remaining were either APSs or APCs.

PN125

How many people would that involve?---I can't tell you specifically, but Mr Hacking indicated that after he said there was an indefinite strike and we spoke about the issues around - you know, the reasons as I've already gone s through, Mr Hacking indicated that APSs would cover. If there were no APSs, there'd be APCs. But look, the specific number, look, I don't know. Maybe five to 10 might be, but I actually haven't checked that - - -

**** RICHARD JOHN BATH XXN MR LOUREY
PN126

So you don't know that number and you don't know who those people are?---I don't know their names as such. We were pretty busy last night getting the plant running and, look, there was a whole range of things that we had to do last night and yesterday.

PN127

So it wouldn't be correct, for example, to say that those people who did remain in those roles that you've identified were taking industrial action, would it?---It's something we'd certainly need to look at because they didn't - - -

PN128

Well, they're either taking industrial action or they're not, those people who remain, what do you say about that, they are or they are not?---Well, they didn't work to the full duties of their position description, so if you look at one definition of industrial action it could be surmised that they still participated in industrial action. Look, I'm not sure. That's an issue - - -

PN129

How is it that you can say they didn't work to the full description of their position?---Because when I had a conversation with Mr Hacking about what their roles were, he indicated that they were there just to sort of provide advice and weren't doing the normal role of an APC, which is running the system.

PN130

But you didn't physically see what they did do or didn't do, is that - - - ?---No, I didn't physically go - - -

PN131

You didn't discuss that with any of your managers?---I haven't asked them that specific question, no, but I'd got - you know, I'd discussed it with Mr Hacking and he was pretty clear about how the APCs and APSs were to operate.

PN132

All right. Now, you've given evidence that you saw part of a meeting that took place between 5.30 and 6 o'clock and is it the case that at the conclusion of that you've told us that a number of people went home, that people in those same categories, APS, APC, some of them attended work?---We - well, there's an obligation under the EBA that APSs continue to work when there is a legal industrial action, or non prohibited - non protected industrial action. So - - -

PN133

So did that occur last night?---APSs were in. If an APS wasn't available an APC was to take on that type of - - -

**** RICHARD JOHN BATH XXN MR LOUREY
PN134

And that occurred, did it?---To the best of my knowledge it has occurred, but again I haven't - I wasn't at the refinery this morning, so I can't confirm that it's happened in every op centre. But by the same token, if it hadn't occurred, I probably would have heard about it. That's probably the best answer I can give you.

PN135

So your best answer is that, to the best of your knowledge, APSs or APCs attended over the course of the night shift that commenced at about 6 o'clock?---I haven't heard otherwise.

PN136

And what then do you say about the shift that was planned to commence from 6 am this morning, did you say earlier in your evidence-in-chief that you have heard something in relation to that?---Well, I mean, the bulk of the workforce who were rostered today who were AWU members have not shown up for work. Now, I'm - - -

PN137

Sorry, that's a qualification that I perhaps hadn't understood earlier. So the bulk have not turned up for work?---Bulk have not turned up and - - -

PN138

So some have turned up for work?---Well, the only ones that I'm aware of is the agreement that we have around APSs and the APCs.

PN139

Sorry. I understood from your earlier answer that there were no AWU people at work today?---Sorry - - -

PN140

So you're saying the APS people and the APC people, the emergency coverage, is that the fire crew?---Yes, so there's some - yes. So as I said initially, that when we first discussed with Andy, with Mr Hacking, was that there was an indefinite strike but the arrangements in accordance with the EBA around APS and fire crew were remaining. Okay, so that part's covered to the best of my knowledge. But the other numbers of employees who were rostered on to come to work have continued their indefinite strike.

PN141

So in terms of that part of the agreement that says there will be coverage in the event of action, you're saying that there are AWU category people on site fulfilling that role, or those roles?---Yes, my understanding is, and we'd previously clarified it with Mr Hacking, is that that would continue to operate and I haven't heard any differently, that that's been an issue. So, look, if I didn't clarify that earlier, I apologise, but that's - - -

**** RICHARD JOHN BATH XXN MR LOUREY
PN142

No, no need to apologise. I've got no further questions, Commissioner. If you'll just give me a moment. Thank you, Commissioner.

<CROSS-EXAMINATION BY MR HACKING [11.11AM]

PN143

MR HACKING: Mr Bath, on the first occasion when we seen you down the bottom of the hill, Glenn Hassan followed me down, so there was myself and Glenn Hassan and we were talking to you, I did mention a couple of things to you. You asked me - sorry. You mentioned that Mr Swan was - I said that Mr Swan was coordinating this. I don't believe that happened?

PN144

MR BLACKBURN: Commissioner, and I recognise that my friend is not represented, but I think if he wants to give evidence he needs to get into the witness box and give sworn evidence and what he should be doing now is simply asking Mr Bath the question, but alternatively, to the extent that what is said from the bar table, it appears to sound like a statement and perhaps if this Commission treats it as a question, I won't need to jump up and down, but I just draw that distinction, if my friend wants to give evidence, he should - - -

PN145

THE COMMISSIONER: It's probably good if you don't jump up and down, Mr Blackburn. The point, Mr Hacking, you may well have a difference of view about something Mr Bath's said so far. This is your opportunity to ask him a question. If there are things you wish to explain about it in more detail, from your perspective, you will have to make a decision later on whether you wish to give evidence yourself. If you can just ask him relatively simple questions, if you like.

PN146

MR HACKING: Mr Bath, would you repeat what happened on that first occurrence outside the offices, what I said in respect of Mr Swan?---Okay. So you said that Mr Swan or Ben was coordinating this and had spoken to Kim Horn.

PN147

Going to the second time that we met at about 5.35, 6 o'clock-ish, the question was asked again, can you repeat what was asked the second time?---In relation to Mr Swan?

PN148

Yes?---Yes. You said Ben's aware of it, you know, words to that effect. You know, so, which backed up what you'd said at 2.35.

PN149

I'd just like to make Richard aware that on - I need to - I don't believe that I, on the first occasion, said those things and I would ask you to reconsider what was said?---Well, I'm not going to reconsider it, because that's what you said. I mean, it was not something I - when I get out of my car after driving home and getting to Kwinana in half an hour and I see people leaving the gate, it's not the first thing I'm going to think of, that Ben Swan's been talking to - was coordinating this and had been speaking to Kim Horn. I mean, look, to be honest, I mean, why - look, that's what you said. We have a different view. But I'm completely sticking clear - sticking to what you said to me and I'm not withdrawing it under any circumstances.

**** RICHARD JOHN BATH XXN MR HACKING
PN150

Thank you.

PN151

THE COMMISSIONER: Thank you, Mr Hacking. I'm assuming you don't wish to cross-examine, Mr Bath, but - you don't, thank you. Any re-examination, Mr Blackburn?

PN152

MR BLACKBURN: No, thank you, Commissioner.

<THE WITNESS WITHDREW [11.14AM]
<BRUCE IVAN BUTSON, SWORN [11.15AM]
<EXAMINATION-IN-CHIEF BY MR BLACKBURN

PN153

MR BLACKBURN: Mr Butson, what is your occupation?---Group leader in calcination(?).

PN154

And what does that mean, sorry?---It's a new name for a foreman.

PN155

And calcination is where, where physically do you work within the plant?---OC4 in Kwinana.

PN156

Yesterday you were at work?---Yes, yes.

PN157

Did you attend a union meeting at around 2 o'clock or half past one at all?---No.

PN158

Where were you at around that time?---Half past one I was in my office, my field office.

PN159

And can you tell me about - and where is your office in relation to the control room?---Quite a fair way away actually. About 100 metres away in the building.

PN160

Were you aware - did you become aware of any industrial action or people wanting to leave?---Not till about quarter to two, I heard - I got a message from another area group leader that their guys were going out.

PN161

What did you do?---Then contacted my control room to confirm that they had heard the same thing and they informed me that they'd just had the phone call themselves and that they were going out as well.

PN162

So are you responsible - do people in the control room report to you?---Yes, they do.

PN163

And in the control room who have you got working, or what categories of staff, employee have you got working there?---Yesterday I had three APCs, which are process controllers, control attendants.

PN164

So three APCs?---Yes.

PN165

Any APSs?---Yes, I had them out in the area, working out in the area.

PN166

What's the difference between an APC and an APS?---Area process specialist, APS, it's a higher grade, there to assist me, problem solve and help the guys as well.

**** BRUCE IVAN BUTSON XN MR BLACKBURN
PN167

And what do the APCs do?---The control room attendants that run the board, run the process.

PN168

What happens if nobody does that?---Eventually the building would crash, things would shut down, yes, the process would be at risk.

PN169

So there were three APCs in the control room?---Yes.

PN170

And one APS out in the area?---Out in the area.

PN171

Out in the area, all right, and sorry, did you ring the control room or did they ring you?---No, I rang them.

PN172

And you spoke to one of the APCs?---Yes.

PN173

And what did he or she tell you?---He told me that they'd been informed that they were going out for a stop work meeting and to take their bags with them, so they probably wouldn't be coming back to work.

PN174

Did they say who had informed them?---No.

PN175

What happened next?---I went to find my area process specialists to take them up to the control room. I also reported to my supervisor that this actually was happening. He told me that he'd spoken to other people and that it was an illegal action and to inform my control attendants of this and that they were required to stay and look after the process, look after the board in calcination.

PN176

Did you then do that?---Yes, I did that.

PN177

How did you do that? Did you ring or did you go - - - ?---No. I went physically to the control room with my APS and told the guys that. They then stayed while the two operators went down to the stop work meeting.

PN178

Now, at some point were you present when there was a phone call?---Yes. About 15 minutes later there was an outside phone call to the control room. One of my control room attendants answered the phone. I heard him speak to someone and saying, "Yes, yes," and then he said, "Yes, Glenn," and then hung up and informed the other control room attendants that Glenn had - Glenn Hassan told them that they needed to leave now as well.

**** BRUCE IVAN BUTSON XN MR BLACKBURN
PN179

Leave where?---Leave the control room to go to the stop work meeting inside the gate.

PN180

So that was before the stop work meeting or - - - ?---Well, no. The stop work meeting was at 2 o'clock. This was at approximately ten past two, quarter past two.

PN181

And what happened then?---Once he'd told the other control room attendants that they were told that they needed to leave right now, they left, so there was just me and the APS left in the control room.

PN182

And did the APCs return to work at all?---No.

PN183

Are you aware whether any APCs worked on the night shift?---No, not that I know of.

PN184

So - - - ?---Only an APS.

PN185

Only an APS worked on the night shift last night, and do you have any knowledge of whether any APCs or APSs are working today?---Yes. There's an APS at work today. That's all I know.

PN186

And ought there to have been APCs working today?---Would there normally have been, yes, definitely.

PN187

I've got nothing further, thank you, Mr Butson.

PN188

THE COMMISSIONER: Any cross-examination, Mr Lourey?

PN189

MR LOUREY: No, sir.

PN190

THE COMMISSIONER: Mr Hacking?

PN191

MR HACKING: No.

PN192

THE COMMISSIONER: Any cross-examination, Mr Lea?

PN193

MR LEA: No, sir.

<THE WITNESS WITHDREW [11.22AM]
<JOHN DAVID BEAVAN, AFFIRMED [11.23AM]
<EXAMINATION-IN-CHIEF BY MR BLACKBURN

PN194

MR BLACKBURN: Mr Beavan, what is your occupation?---I'm process coordinator of Wagerup.

PN195

You were at work yesterday?---I was.

PN196

And can you tell me what happened at around half past one yesterday?---Half past one yesterday I got a telephone call from Darren Lea.

PN197

Who is Mr Lea?---I believe he's the union convenor for Wagerup.

PN198

And what did he say to you?---He said to me that a stop work meeting had been called for 2 o'clock and the guys would be attending that.

PN199

Did he give you any indication as to whether or when the guys would be returning to work?---I did ask him when the guys would be returning to work and he was unable to tell me and he said he would let me know after the meeting.

PN200

Did he say anything about people in the operations centre?---He said that the Level 13s, the APSs would stay back to operate the boards in the control rooms.

PN201

Now, what happened next as far as you're aware?---As far as I'm aware, the stop work meeting happened at 2 o'clock as indicated. At ten minutes to three, I got another telephone call from Darren Lea saying that the guys were staying out indefinitely.

PN202

And did Mr Lea say anything about the night shift?---I asked him if there would be a night shift and he informed me that he would be meeting with the night shift when they came in for work that night.

PN203

Now, what then occurred as far as the AWU category employees? Were you aware of whether they worked, or did they leave, what happened?---Can you repeat the question, please?

PN204

Yes. After that meeting, that stop work meeting that Darren Lea reported back to you about, and he told you that the AWU workers will not be returning to work, did you observe whether workers left the site?---Yes, I observed cars leaving the car park at quarter to three.

**** JOHN DAVID BEAVAN XN MR BLACKBURN
PN205

And were there - did you observe any AWU category employees still working, did anyone not leave the site?---The Level 13s did not leave the site.

PN206

The Level 13s, and how many of those are there, roughly?---Four - five.

PN207

Four or five?---Five.

PN208

Five, okay, and the five of them didn't leave the site. Are you aware of whether the night shift worked last night?---I'm unaware of that.

PN209

Are you rostered to work today?---Yes.

PN210

And what's the position today, are AWU category employees at work today or not?---I'm unsure. I don't know.

PN211

I've got nothing further, thank you, Commissioner.

<CROSS-EXAMINATION BY MR LOUREY [11.26AM]

PN212

MR LOUREY: Mr Beavan, your evidence was that five Level 13s remained on site?---Yes.

PN213

Were there other AWU category people remaining on site?---Not to my knowledge, no.

PN214

For example, did emergency services crew remain on site?---Darren Lea did indicate to me that they would be available, yes.

PN215

Are you aware if that in fact transpired?---I'm not aware if that transpired, no.

PN216

So you don't know whether the emergency services crew were at work or were not at work?---I am not aware of that, no.

PN217

If they were at work and I appreciate you've said you don't know, how many people would that have involved?---I would not know.

PN218

A small number?---It would be a small number to my knowledge, yes.

PN219

But you don't know how many in particular?---I don't know how many, I couldn't tell you.

**** JOHN DAVID BEAVAN XXN MR LOUREY
PN220

No further questions, thank you, Commissioner.

<CROSS-EXAMINATION BY MR LEA [11.27AM]

PN221

MR LEA: Thank you, Mr Beavan. Just a question, that discussion that I had with you at 1.27 pm. Did I indicate to you that - of a meeting that was requested by the membership to be held at 2 pm?---As I recall I think you did say it was requested by the membership, yes.

PN222

Thank you.

<THE WITNESS WITHDREW [11.28AM]

PN223

MR LOUREY: Sir, might we just have a brief adjournment for two minutes to confer with my friends as to the number of witnesses that we will need to call. We're hoping some agreement can be reached or perhaps not.

PN224

MR BLACKBURN: Sir, a comfort stop could be a reason for adjournment as well.

PN225

THE COMMISSIONER: That's fine, gentlemen, let's adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.29AM]
<RESUMED [11.50AM]

PN226

THE COMMISSIONER: Yes, Mr Blackburn?

PN227

MR BLACKBURN: A positive outcome, Commissioner, at least in terms of reducing the length of the hearing. We managed to avoid the need for further witnesses. It's agreed between the parties that at the Wagerup site, the Huntley site and the Willowdale site there were union stop work meetings following which the majority of AWU category members left the site and that the majority of AWU category members have not worked yesterday or last night or today at any of those sites. There are some APCs and/or APSs who have worked at each of those sites, the precise number will vary from site to site but, Commissioner, you've got the drift from the evidence that you've heard so far.

PN228

On that basis there's no need then for us to call further evidence in relation to those sites. Sorry, it's also agreed there's a paid convenor at each of those sites and the AWU represents its members at each of those sites. There's also an issue which has also been agreed in relation to Mr Swan's involvement and any inferences that might otherwise have been drawn from the evidence, so I'll leave that to Mr Lourey and we'll most likely agree with the explanation that he gives of it.

PN229

THE COMMISSIONER: Yes, Mr Lourey?

PN230

MR LOUREY: Yes, deal with the last point first. From Mr Bath's evidence, and perhaps I can inquire, Commissioner, or Madam Associate, is Mr Swan back - - -

PN231

MR SWAN: I'm on the line.

PN232

MR LOUREY: I wasn't sure if you'd rejoined the proceedings. The inference possibly arose from Mr Bath's evidence that Mr Swan had some role of coordination in the events that he gave evidence about otherwise and what we say, Commissioner, is that Mr Swan had no role at all in organising or involvement in or in relation to the stop work meeting or meetings or decisions taken at those meetings to engage in action. Mr Swan was in fact involved only by telephone at the initiation of a senior member of the applicant's management and became involved in attempting to coordinate measures to deal with the consequences of what had occurred and to deal in particular with measures to resolve issues that might be in dispute between the parties.

PN233

So that's the extent of Mr Swan's role and we say that any inference that might possibly be taken from Mr Bath's evidence in that regard should not be made and we'll hear from my friend on that point. Otherwise, Commissioner, the parties have conferred as to the substance of further evidence to be called and further points to be made in relation to that evidence. Whereas my friend says that the majority of people working at each site, took action of some form, that's the majority of those planned to have been on site at that point. It's by no means a majority of the AWU category people in toto.

PN234

There hasn't been particular evidence about this, and you'll no doubt hear from my friend that the arrangements at Kwinana in respect of five panel crews and 10.3 hour crews, I suspect are uniform through the sites, possibly to a different extent in the mining locations, but the nature of those panel arrangements and rosters is that at any one point only one of the five panels is present and we say that in overall terms, to the extent that there have been persons eligible for membership of the AWU and covered by the agreement involved in action of some kind that that is a fairly insignificant number relative to the overall number.

PN235

Then in relation to the paid convenors at each site who's role it is to represent members at each site the union agrees that the convenors have that representation role both in individual concerns and group concerns and they have that role to the extent that they're individually or as a group required by members or directed by members and that's what we say about that. So to the extent that the parties had agreed those aspects to emerge from the evidence where we're able to perhaps shorten or drastically shorten the proceedings that might otherwise keep us here most of the day, sir.

PN236

THE COMMISSIONER: Thank you, Mr Lourey. Can I just - I'll ask both of you and I'll get you to respond in a moment, Mr Blackburn, but those agreed positions, I thought I understood, Mr Blackburn, you to say that that only covered Wagerup, Huntley and Willowdale?

PN237

MR BLACKBURN: Well, only because we'd heard the evidence in relation to Kwinana and there hasn't really been any significant attack on those issues in relation to - I understand my friend's argument is - or we can see where my friend's argument is going, but he hasn't actually attacked those issues in relation to that.

PN238

THE COMMISSIONER: I'm sorry, this is in the context of avoiding more witnesses for Huntley, Willowdale and Wagerup and so forth.

PN239

MR LOUREY: With little to be gained, sir.

PN240

THE COMMISSIONER: Yes.

PN241

MR LOUREY: We're not going to lead evidence that there is no industrial action taking place. We make no concession that there is, but certainly there is an amount of evidence before you, sir. We're not in a position to put evidence to the contrary, even if that evidence could be put. That's not happening, so in terms of the factual matrix, sir, you've heard a good deal of evidence and the discussion between the parties effectively is that completing the evidence in full with appropriate cross-examination of each witness will not add to the factual matrix upon which you will do whatever you choose to do in relation to the application, Commissioner.

PN242

THE COMMISSIONER: Thank you, Mr Lourey, that's helpful and that's clarified it for me.

PN243

MR BLACKBURN: I'll just provide some further clarification. Firstly, my friend referred to the fact that not every panel has been rostered to work at every site and that's my friend's point and therefore not every panel can be said to have engaged in industrial action yet or my friend would say at all. We differ from my friend where he says it's an insignificant number, those that have engaged are an insignificant number. The evidence at Kwinana was that at least two and possibly three out of five panels have engaged in industrial action, so there's a difference of emphasis there, but in the end we'll say that it doesn't make a difference to the orders that the Commission can make.

PN244

One point that I do differ from my friend on which we didn't discuss was my friend said that it was agreed that the role of the convenors is limited to the extent required or, I think, by their members or - - -

PN245

THE COMMISSIONER: Directed by their members, I think, I think was Mr Lourey's observation.

PN246

MR BLACKBURN: Required or as directed by the members, yes. Yes, we certainly don't make any concessions in that regard or we've not agreed anything with my friend in that respect and the agreements that go to the need or avoid the need for the applicant to have to call witnesses in relation to those other matters, we will still seek to draw inferences from the respondents not calling witnesses. The respondents are free to call witnesses if they wish to do so and we don't seek to discourage them from doing that.

PN247

THE COMMISSIONER: Thank you, Mr Blackburn. Now that evidence is concluded if you'd like to put your case, Mr Blackburn, and then I'll hear from Mr Lourey.

PN248

MR BLACKBURN: Commissioner, I think I can anticipate from my friend's arguments based on the questions that have been directed at the witnesses and therefore I'll narrow my comments to those matters which go to the point that my friend's been making through the cross-examination and if there's any further matter that arises, perhaps any further reliance on the Full Court authority in the Transport Workers' case, then perhaps I can deal with that in reply if necessary. Though as I indicated, the orders sought are in exactly the same form as the orders that you've made previously in the Alcoa and Olinta Gas cases.

PN249

The evidence from the witnesses is, much as I anticipated it would be, in that at each of the sites virtually simultaneously there were stop work meetings held by the paid union convenors at each of the sites. As you've heard it's not an issue that the AWU has a strong presence at each of the sites, strong membership and paid convenors and delegates and represents its members at each of the sites and is here representing its members today. The industrial action occurred following, as I say, four stop work meetings, one at each of the sites, paid convenors were at those stop work meetings. The two convenors that are here and against whom particular orders are sought, being Mr Lea and Mr Hacking, have elected not to give evidence as to their role and, Commissioner, you can draw inferences about that.

PN250

We say they were not simply facilitating the views and decisions of the membership. They were much more active than that and we've heard not only of their involvement in signalling the stop work meetings or foreshadowing stop work meetings, but also in the case of Mr Hacking and Mr Hassan, standing outside the gate at around five or half past five last night as employees were coming to work the night shift, employees attending with bags, employees attending ready for work and then after meeting with Mr Hassan and Mr Hacking turning away. So there's a fairly active role taken by Mr Hacking and Mr Hassan, not only to convene the meeting, the original stop work meeting, but also then to have further meetings at night and turn the night shift away.

PN251

That's at Kwinana where Mr Hacking and Mr Hassan played that role. Additionally we have the evidence of Mr Hassan ringing the control room and directing the APCs to leave their work, so there's quite a prominent role being played by both Mr Hassan and Mr Hacking and neither of them have sought to give evidence, either Mr Hacking on his own account, or on behalf of the AWU to rebut the obvious inferences that arise in the evidence that's been given. Similarly Mr Lea is not elected to - or has elected not to give evidence in relation to his role in convening the stop work meeting. In both the Wagerup and Kwinana sites the employer was not given any indication as to when the action would cease.

PN252

The employer has been told that the strike is an indefinite strike. So we have not only action occurring, but we also have action that is threatened, further action that is threatened, impending or probable and I refer the Commissioner to what was said in the TWU case of the same action. I think it's at paragraph 20, I think, the Federal Court TWU case, that the same action can be both happening and threatened, impending or improbable.

PN253

So therefore it's open to you, Commissioner, to make the requisite jurisdictional finding of fact that industrial action is happening and it has been organised and it's further action, because the industrial action has been - the employer's been told that it's indefinite that further industrial action is threatened, impending or probable. The position in relation to the Huntley and Willowdale mine sites is the same. Union meetings called at 2 pm after which employees go on strike. No indication as to when they will return to work. The simple fact of the coordination of the four stop work meetings, the involvement of the union convenor at each of those meetings and then the identical decision taken at each of those meetings to go on strike indicates that there is a level of coordination of planning and that it is the AWU, through its convenors, that is behind this.

PN254

Employees haven't just decided independently off the cuff at each of the sites to have a stop work meeting at exactly the same time and then take an indefinite strike. Now, that brings us, Commissioner, to the form of the orders that are sought and the orders that I've indicated are in the same form as those that you have made previously. I draw your attention to the fact that the order is sought to apply to and bind the AWU, Mr Lea and Mr Hacking as well as employees who are members of the union and employed to work at the sites and who are subject to the relevant agreement about which you've also heard evidence.

PN255

At the bottom of paragraph 3 of the definition in the case of the union, Mr Lea and Mr Hacking, industrial action includes being, whether directly or indirectly, or party to or concerned in industrial action by employees and we say there's no doubt on the evidence that Mr Lea and Mr Hacking and through them the union have been a party to or concerned in the industrial action and therefore have engaged in it within the definition of section 4 of the Workplace Relations Act. The point which I anticipate that my friend will take is that - and the point which has been sought to be made through cross-examination - is that to date not every employee has engaged in industrial action, not every employee within the scope of the proposed order has engaged in industrial action and that's part of the inference - or the inference that can be made is that that's partly because not every panel has been rostered to work since the action commenced at around 2 pm yesterday, and then there are a small number of APCs or APSs, the number varies from site to site, they haven't taken industrial action and then there would be a small number of employees who are on leave, on authorised leave in one form or another.

PN256

Now, in our submission that doesn't effect - and the proposition which I anticipate will be put is that, well, the orders are too broad and they seek to apply to all employees who are members of the union and subject to the AWU agreement and work at those sites and, of course, some of those employees haven't engaged in any action at all. Now, what we say firstly about that is that those employees that have not yet participated in industrial action because they haven't yet been rostered to work, in their case it's fairly evident that industrial action is impending or probable, threatened by virtue of the fact that the employer has been told that the strike is indefinite and sure as night follows day, the night shift refused to work as the day shift had refused to work and one would anticipate that while the strike continues, the next panel that comes along won't work either.

PN257

So in relation to the further employees who are yet to commence, including any employees who are due to return from leave, then they fall within the category of action that is threatened, impending or probable. But there is a further point that can be made in relation to this, Commissioner, and that is that it's not necessary for you to make a finding that an employee has engaged in industrial action before being able to make an order against that employee, and there are several cases that support that proposition, and the first is the original Full Bench decision in TNT Australia Riteway Transport Ltd v TWU of Australia.

PN258

The second is the Full Court decision itself in TWU New South Wales v Australian Industrial Relations Commission, and the third is another Full Bench decision, AWU v Bluescope Steel Ltd. I'll hand up copies of those three decisions which I'll take you to. Now, if I can start with the Full Bench decision in the Transport Workers' case, PR973479. At paragraph 6 the Full Bench refers to a submission made on behalf of the union that it was submitted that:

PN259

While the Commission is obliged to make an order, if the jurisdictional prerequisites are made out, an order may only be made against persons in relation to whom there is a relevant finding of jurisdictional fact. Further, an order may only be made in relation to industrial action in respect of which a jurisdictional finding has been made. In this case it was submitted no order could have been made against the appellant union because there were no relevant findings of jurisdictional fact with respect to industrial action made against it.

PN260

So there was no finding that the union had engaged in industrial action, therefore it was argued no order could be made against the union. At paragraph 8 the Full Bench says, we deal first with this argument about a need for finding of the jurisdictional fact with respect to the appellant. Paragraph 9 it said:

PN261

The submission fails at the outset. It's based on too narrow a view of the operation of section 496. All that is necessary to attract the Commission's jurisdiction is that it appears to the Commission that industrial action by employees that is, or would not be protected is happening, threatened, impending and/or probable or being organised. Once one of those conditions is fulfilled the Commission may make an order which has a rational or logical tendency to stop or prevent the industrial action and/or its organization.

PN262

Now, the Full Court put a bit of a qualification on that in that there needs to be separate findings in relation to industrial action being organised, occurring or being threatened and/or probable. But what the Full Bench is saying here is that there is no need for a jurisdictional finding to be made against the Transport Workers' Union for an order to be made against it. It's enough that there's a finding that industrial action by employees had occurred or is happening or is being threatened. They say in paragraph 10:

PN263

In this case it's clear that industrial action was occurring. It was also clear that the appellant union had been involved in negotiations with TNT concerning a new industrial agreement and that the industrial action was related to those negotiations it was not unreasonable that the Senior Deputy President should make an order/finding on the appellant.

PN264

Now, that decision was followed in - and I'll deal with them chronologically - in AWU v Bluescope Steel Ltd, print PR980373 where at paragraph 24 the Full Bench said:

PN265

The AWU also contends that even if the Senior Deputy President was correct -

PN266

this is at paragraph 24, Commissioner:

PN267

in finding that industrial action was impending or probable, his Honour nevertheless erred in making an order that bound the AWU because there was no evidence and no finding that the AWU had taken or organised the action.

PN268

Now, what's being argued here is that there's no evidence that particular employees have taken action. The Full Bench said, "We disagree." Once the Commission has found that the jurisdictional requirements in section 496 have been satisfied it must make an order and the decision of the Full Bench in TWU v TNT is authority for the proposition that:

PN269

While it's open to the Commission to make an order that's confined to relevant employees and does not extend to the union that represents those employees, it's also open to the Commission to make an order that extends to the union even though there is no jurisdictional finding of fact against the union, if on the evidence and in the judgment of the Commission, such an order is desirable as having a rational or logical tendency to stop or prevent the industrial action. In the present case there was in fact evidence from which an inference of union involvement in or in support of the actions to be drawn, the advice from Mr Bergner, who was one of the employer representatives, that each crew would take its turn and not work on the 21st shift and immediately after a meeting at the AWU office of delegates and members at which the AWU organiser was present, it stretches credulity to suppose that the two events are unconnected.

PN270

So that last passage, the Full Bench draws the inference that the AWU was in fact involved. But before drawing that inference, by simply reason of the fact that there was an AWU meeting which preceded the advice to the employer, but before that the Full Bench is saying that an order could be made against the union even though there was no jurisdictional finding of fact against it if, on the evidence of the judgment of the Commission, it was desirable as having a rational or logical tendency to stop or prevent industrial action. So in this case we say that it is open to the Commission to make an order that extends to all of the panels and all of the employees within the relevant category, even though there may be no jurisdictional finding of fact against some of the employees, if on the evidence and in the judgment of the Commission, such an order is desirable as having a rational or logical tendency to stop or prevent the industrial action.

PN271

But of course going back to my first point, there is a jurisdictional finding of fact that can be made against those employees that have yet to come on, and that is that the evidence is that the industrial action is indefinite and therefore it follows that the panels that are due to come on will not work, it's likely that they will not work in the same way as the night shift last night, refuse to work. Finally, Commissioner, the Full Court had something to say about the same matter in TWU v AIRC. If you would just bear with me for a moment while I find the relevant reference. In paragraph 16 the TWU, on appeal, argued the same point which was that there was no jurisdictional finding of fact against the TWU, therefore there's no order that could be made against it because there was no jurisdictional finding of fact that it had engaged in industrial action.

PN272

At about midway, or about four or five lines down paragraph 16, it said that:

PN273

It is plain however that if the specified circumstance or circumstances appear to the Commission to be present the Commission has no discretion at all as to whether to make an order. An order answering the specified description must be made. It may be true that the Commission has to select the person or persons on which the order will be binding. It may also be the case that the Commission must choose a form of order appropriate to answer one or more of the specified descriptions of the orders that must be made.

PN274

Then two or three lines further on:

PN275

The order must be an order that is designed to be effective to stop the industrial action, to ensure that the industrial action not occur or to ensure that the industrial action not be organised as the case may be. The choice of the target of the order will be dictated by the requirement that the order be made and that it achieved one or more of those purposes.

PN276

So the Full Court there is in effect confirming what the Full Bench has said on this point, which is that once you find that industrial action is occurring or is happening or is threatened, you then are able to choose and fashion the order, in fact, you need to choose and fashion the order in such a way as to ensure that the industrial action stops, or that any threatened industrial action does not occur. Therefore where in paragraph 4(a) of the proposed order it's said that:

PN277

Each employee must immediately stop and not engage in industrial action, the direction that each employee not engage in industrial action is justified or can be justified by a jurisdictional finding that industrial action is threatened, further industrial action, being the continuation of the strike, is threatened, intending or probable, the direction that each employee must immediately stop can obviously only imply to employees that are currently engaged in the industrial action.

PN278

So the order is - and in particular paragraph 4(a) is by no means too broad and we say that an order should issue in terms of the draft.

PN279

THE COMMISSIONER: Mr Blackburn, just help me. Whilst I understand from the evidence why it's promoted, but in terms of the form of the order, specifically having the order bind Mr Lea and Mr Hacking, what does the applicant say is the rational or logical tendency that doing that will in some way achieve the aim of the order, to stop the industrial action and/or to see that it's not engaged in - - -

PN280

MR BLACKBURN: Well, Mr Lea and Mr Hacking were the people that we say called the union meetings yesterday. Mr Lea and Mr Hacking - Mr Hacking was also present at the gate of the Kwinana Refinery and conducted a further union meeting following which employees that had turned up for work went away. They're both the full time paid convenors at each of the two sites, and therefore they have an instrumental role in directing the activities of the union at those sites and in liaising and communicating with employees. They are effectively the face and voice of the union at the sites, at the two sites, the two refineries.

PN281

THE COMMISSIONER: Mr Blackburn, if they were not individually bound would you agree though that they are still subject to the order by virtue of their employment?

PN282

MR BLACKBURN: Yes, they would be.

PN283

THE COMMISSIONER: Thank you for that. Mr Lourey?

PN284

MR LOUREY: Thank you, sir.

PN285

MR BLACKBURN: Sorry, Commissioner, I withdraw that, sorry. No, they wouldn't be. The AWU would be and if Mr Lea or Mr Hacking carried on and continued to implement industrial action there would be an argument that the AWU had breached the order. But then if the AWU came along and said, "Well, it wasn't us," there are off on a frolic of their own, there would be an argument about that. So the order, unless it's directed to Mr Lea and Mr Hacking, won't be binding on them directly. The only person that will have breached the order will be the AWU.

PN286

THE COMMISSIONER: So, for instance, 2(e) doesn't bind them, in the same way it binds all other employees?

PN287

MR BLACKBURN: 2(e) would bind them if the rider at the bottom of 3 remained.

PN288

THE COMMISSIONER: Do you have a view as to whether that does apply to them or not?

PN289

MR BLACKBURN: As to which does apply to them?

PN290

THE COMMISSIONER: Well, (iii), Roman (iii), that's the point you're making, wasn't it?

PN291

MR BLACKBURN: No, not Roman (iii). Sorry, 2(e)(i) to (iii) would apply to them in relation to whether they engage in industrial action, but we need to be able to draw on the broader - on the definition of engaging in industrial action and for that reason the paragraph at the bottom of (iii) - we need to make it clear that Mr Lea and Mr Hacking don't just turn up for work. But that they not organise or cause other employees - that they're not party to other employees being engaged in industrial action. The two of them have a special position which other employees don't. Other employees just turn up and perform their work. Mr Lea and Mr Hacking turn up and perform union duties all day long.

PN292

So we need to be clear that the order requires them not only - that the order requires them expressly not to be party to or concerned in industrial action by other employees because that is the gist of what's being said against them.

PN293

THE COMMISSIONER: Thank you, Mr Blackburn. Yes, Mr Lourey?

PN294

MR LOUREY: Thank you, sir. Sir, my friend has referred you to certain authorities and you will take from those authorities that which you will and those authorities are somewhat clear. The submission my friend made though that it was open in the TNT case for the union to be bound by the orders, even absent evidence or a finding that there had been action by the union, does not extend to making those orders apply against anyone and everyone. That point that the Full Bench looked at and subsequently the Full Court of the Federal Court was in relation to the point of the union being bound, the union as an entity.

PN295

Now, you've heard evidence from the applicant's witnesses that will enable you to take what you will from that evidence in terms of satisfying yourself as to the jurisdictional prerequisites. The main point of my submissions, Commissioner, is as to the form of the orders and we say that the form of orders sought in terms of proposed order 2, proposed order 3, proposed order 4 is simply too broad. As you pointed out, Commissioner, in the question of my friend, it's on the face of it superfluous to specifically identify Messrs Lea and Hacking in proposed order 2(c) and (d) when they are simultaneously employees of the union meeting the criteria in Romans (i) to (iii).

PN296

Now, and I make these submissions, Commissioner, in terms of assisting you with the form orders that you choose to make because in making orders you will need to choose who those orders are made against. Now, we say that, as a first step, to simply allow proposed order 2(e) as it is to stand is contrary to requirements of procedural fairness because, Commissioner, I appear here today for the AWU. Messrs Hacking and Lea have appeared in their own right. But no other persons potentially falling within proposed clause 2(e) have appeared or sought to appear or instructed me, for instance, to represent their interests to any extent. It can't be clear to you, sir, even whether those people are aware and that these proceedings are on today whereby their interests, rights and obligations are being discussed.

PN297

It is clear and it must be taken by you from the evidence, sir, that of all the persons who might fall within proposed clause 2(e) of the order it must be clear that not all of those have engaged in industrial action. Certainly my friend has suggested that that inference be drawn from the evidence that is before you that those who have not taken action of some form, it's impending or probable that they will. This, we would say, is simply insufficient evidence for you to make that conclusion. The point of my submission, Commissioner, is that it is simply not possible for orders to be made and work the intended effect when they are so broad in terms of interpretation of precisely who is bound without being more specific as to who's taken action and it's clear that of those who've been on roster, some have not taken action or some perhaps have taken action to a different extent. There's little evidence, if any, before you in that regard.

PN298

But the point I wish to make in terms of proposed - the main point I wish to make in respect of proposed paragraph 2(e) flows from the Full Court's judgment in the TWU matter on appeal. The Full Court there accepted that it was contrary to fundamental principles to have persons named in such an order where they
were - and I'm referring to the Full Court's judgment at paragraph 44 and the fairly helpful discussions in the paragraphs leading up to that, but at paragraph 44 the Full Court accepted that it was contrary to fundamental principles for orders to apply to people and to be made when they only found out after the event and given the consequence, Commissioner, of subclause (13) of clause 496 - sorry, subclause (11), that there were orders being made rendering them liable for financial penalties if they fail to comply with the orders made, it was inappropriate to include in the orders persons who were unaware of that and who have not had the opportunity to appear or to instruct or to be involved in the making of those orders.

PN299

So we say that is a fundamental problem with the orders as sought by the applicant. Now, I appreciate to the extent my submissions have suggested that Messrs Lea and Hacking treated no differently, or dealt with no differently than the employees otherwise falling within proposed paragraph (e) or those to whom you find or to whom you choose to have bound by the order, I simply make those points. It doesn't follow that as my friend urged you, it doesn't follow from the evidence to find that the role of Messrs Lea and Hacking was instrumental in the action taking place. He asked you to find on the basis that they are paid convenors, that they in effect directed members to take action, but there's insufficient evidence before you to discern - - -

PN300

THE COMMISSIONER: If I can just interrupt you, Mr Lourey. My understanding is you're not representing Mr Lea and Mr Hacking?

PN301

MR LOUREY: Not as individuals, sir, no.

PN302

THE COMMISSIONER: Well, sorry, are you representing them in some other capacity?

PN303

MR LOUREY: I'm making submissions about the - I appear for the Australian Workers' Union. I'm making submissions about the form the orders ought take, including in respect generally of persons eligible for membership of the Australian Workers' Union and that would certainly include the AWUs convenors on the site in a general sense.

PN304

THE COMMISSIONER: Carry on, Mr Lourey.

PN305

MR LOUREY: But there's insufficient evidence for you to find that Messrs Lea and Hacking or anyone else for that matter, been instrumental in having action occur or bringing action about as effectively is the inference that my friend suggest you draw. So we say that the orders ought be limited to reflect that and that then takes me to in proposed order (3), Commissioner, I think what you or my friend referred to as the rider, I think as my friend referred to as the rider, and purely from an interpretational point of view that the definition of industrial action otherwise referred to above, be extended for the convenors so that it includes whether directly or indirectly, and for the union as well, a party to or concerned in industrial action by employees.

PN306

Now, that's too vague and imprecise as to really assist with any proper interpretation of orders it made in those terms, directly or indirectly to a
party - that's perhaps less imprecise - or concerned in. Now, that's just simply not sufficient, sir. Similarly to the extent that in proposed order 4(b) you might choose to direct the union paragraph 4(c) become unnecessary because that can be contiguous with the action that would be required of the union in 4(b). Now, in terms of proposed order 5, sir, and I presume my friend will perhaps make some further submissions to you about paragraph (ii) of paragraph (b) there, I'm assuming that as that date's passed or that time and date has passed, that it's intended that something further be put there in terms of if that remains the applicant's contention that that service upon employees who you might choose to bind with the order ought be effected, service upon those persons ought be effected in this way, from my client's perspective, Commissioner, the proposed order relating to persons eligible to be its members to the extent it seeks to make an individual member a party to and bound by the order it should require that the order be served on any individual so bound.

PN307

I just want to check my notes, Commissioner. Perhaps by way of reiteration of an earlier point, that the authorities affirmed it was reasonable to name the union in the orders absent findings of the union's involvement in the action there found the authorities affirm that it was reasonable to do so if there was that rational tendency to constrain the action, that the point there was, the specific point was that it was reasonable to include the union as named in the orders, but that's not an authority that fact finders should do everything and anything that might have a rational tendency to constrain the action and I think that that's really what my friend's suggestion amounted to, that because the point here is whether, in practical terms, the orders - and it's a question for you to decide, Commissioner - that the point is for you to decide the extent to which the orders you choose to make bind anyone and everyone, not merely the union, but individuals who will then be said to be bound by the order and we would say ordinarily those persons need to be named. There's simply insufficient evidence before you that enables that exercise to be conducted, and of course, whether named or not, if persons are to be made party to such orders in their individual right, they certainly need the opportunity to appear before you in one form or another or at least to be heard.

PN308

Unless you've got any questions of me, Commissioner, I've concluded my submissions.

PN309

THE COMMISSIONER: Thank you, Mr Lourey. Mr Hacking or Mr Lea, are there any submissions you would like to make?

PN310

MR HACKING: Commissioner, I'd just like to adopt Mr Lourey's submissions.

PN311

THE COMMISSIONER: Thank you, Mr Hacking. Mr Lea?

PN312

MR LEA: Thank you, Commissioner. I also wish to adopt Mr Lourey's submissions, thank you.

PN313

THE COMMISSIONER: Thank you, Mr Lea. Anything in reply, Mr Blackburn?

PN314

MR BLACKBURN: Well, yes, Commissioner, quite a bit given that my friend has sought to raise questions that have really been settled by the Full Bench and Full Court authority, but I'll go through them one by one. Firstly, the proposition that the proposed order and the issuing of the order in the form of the draft would be contrary to requirements of procedural fairness because not every employee may have been personally notified of the proceeding goes to the question of whether the union can be properly said to represent its members and of course the distinction between this case and the TWU case that the Full Court had there to consider is that in this case orders are only sought against members of the AWU, not persons eligible to be members who are not members, and the orders are only sought to be made against members of the AWU.

PN315

The Full Court addressed the point in its decision and my friend took you to paragraph 44. Of course, immediately after 44 there was 45 and what the Full Court said in 45 was that it envisaged that, "Even if there remain cases" - this is the Full Court, paragraph 45:

PN316

Even if there remain cases in which the Commission can legitimately say that the interests of particular employees are represented adequately by an organization, for the purposes of the requirements of procedural fairness, the present case differs from that situation in two respects.

PN317

So firstly the Full Court allowed that there can be cases in which the Commission can draw that conclusion, but employees are represented adequately by a union. The case before it was not such a case and the first reason was that the TWU NSW was not an organization under the Federal Act and that gave the Full Court pause because then they couldn't be sure about its obligations and whether it was subject to democratic control and so forth, and of course that doesn't apply here because the AWU is an organization under the Act. The second distinguishing feature in that case was said to be because the order also purported to bind employees who were not members of the union, but only merely would have been eligible to join it if they'd chosen to do so.

PN318

At paragraph 46 the Full Court then said:

PN319

In summary there may be cases of various types before the Commission in which the Commission is entitled to assume that an organization represents the interests of its members for the purposes of the application of the principles of procedural fairness.

PN320

So it's clear that the Full Court is allowing that possibility. Now, after the Full Court decision we had the further decision of the Full Bench in Health Services Union of Australia v The Victorian Hospitals' Industrial Association, and I'll hand up copies of that decision, and also the order that was made in that case. Now, at paragraph 23 the Full Bench noted that the third contention advanced by the HSU was that the order was invalid because firstly employees had not been given advance notice that an order was sought against them, and secondly because the order did not adequately provide for employees to be given notice of the order once it was made. In this latter respect it was said that posting a notice on the notice board is insufficient.

PN321

So this deals with two of my friend's contentions that he's raised this afternoon. Firstly, that they haven't given adequate notice of the proceedings. Secondly, there needs to be some better means of serving it on employees against whom the orders are made. The Full Bench then referred to the Full Court decision, in paragraph 44, to which my friend referred, and paragraph 46 to which I've referred, and then concluded at paragraph 25:

PN322

The members of the court are here expressing the view that proper notice of the proceedings must be given to anyone who is likely to be bound by the order and that if an order is made there must be adequate provision for the order to be brought to their attention. Their Honours did not discard the possibility that these requirements could be met by notification of the union concerned. It's clear from the passage that it is a question of fact in any particular case whether the union adequately represents the interests of the employees in the relevant respects -

PN323

and we've heard evidence in this cases of the extent to which the AWU has represented the sites through its paid convenors and through its delegates and the extent of union involvement in the sites and the level of union membership at the sites. The Full Bench then said:

PN324

In this case there are a number of indications that the HSU did adequately represent the employees. The first is that the orders not binding upon employees generally, but only upon employees who are members of the HSU. It's to be inferred that the HSU had a ready and effective means of communications with its members.

PN325

And we don't need to infer that here. The evidence was given:

PN326

And the second is that there was ample evidence before the Commissioner that the HSU was acting on behalf of its members. Indeed, it never suggested the contrary to the Commissioner and there is no evidence before us to support such a suggestion. A copy of the draft order was served on the HSU. The Commissioner was entitled to conclude that service on the HSU was adequate service on the members of the HSU involved in the dispute. The terms of the order required the HSU to publish a notice giving details of the order on its website to advise the delegates and to provide them with a copy. These measures seem to us to be adequate to bring the terms of the order to the attention of the HSU members concerned.

PN327

So the Full Bench held, firstly, that service on the union was sufficient to bring it to the attention, to bring the application to the attention of the employees, and secondly that the draft order and terms of the draft order were sufficient in relation to how the order was to be served on employees and one can see from order number 5 of the order that was made in which the Full Bench found no problem with, it says that:

PN328

Service of this order on the HSU may be effected by sending a copy to them by email and service of this order on employees may be effected by placing a copy of this order on the notice boards usually used for the purpose of communicating with employees at each employer's facility.

PN329

And we've provided much to the same effect here, the service on the employees to be effected by the service on the union and posting it on the notice boards in the same way as Commissioner, you directed in both the previous Alcoa and Olinta Gas cases.

PN330

Now, Mr Lourey sought to have a bob each way. He said on the one hand that he was representing persons eligible to be members, and then on the other hand said he wasn't representing them, but in any event there's Commission authority on that as well going back to cases like Prior, there's a case in Tenix's case where a union has come to the Commission and said on the day, "We have no instructions from anybody. We don't represent anybody. We deny that we represent or act for anybody." And the Full Bench in both the Tenix case and Prior's case rejected that proposition and said, "No, you are an organization with obligations under the Act and you are representative of your members." And of course, here we've heard very clear evidence about the extent to which the AWU, through its convenors in particular, but also its delegates and organisers, represents the membership.

PN331

So we say there's nothing in that procedural fairness point that's been dealt with both by the Full Court and the HSUA case. Now, the next argument was that not all persons have engaged in the industrial action. We've dealt with that. My friend's construction would require where there's large scale industrial action of this type an exact identification of which employees have engaged in industrial action, namely those employees to be named. That of course would completely neuter section 496, which may suit the respondents in this matter, but that is not a construction which the Commission should place on section 496 because to do so will effectively deprive it of any effect and deprive the Commission of the ability to deal with large scale disputes.

PN332

In any event, as we've indicated, there is a clear jurisdictional finding that can be made in relation to those panels that have not worked, and that is that as far as they're concerned, further industrial action is not impending or probable. Now, my friend says, well, you know, there's not sufficient evidence for you to be enabled to draw that inference. We'd say there is from the advice to the company that the industrial action was indefinite and had my friends wished to - or had the respondents wished to bring some evidence about the likelihood of further industrial action, they could have. But they have stayed silent. They've stayed in their boxes, not come out and for good reason, I would suggest, and the Commission is able to infer that nothing that any of the union's witnesses could have put would have assisted its case.

PN333

It's said that order 3, the last paragraph in order 3 which, Commissioner, you've considered on previous occasions, which says that in the case of the union, Mr Lea and Mr Hacking industrial action includes being, whether directly or indirectly, a party to or concerned in industrial action by employees. My friend's objection here was that the words "whether directly or indirectly a party to or concerned in industrial action by employees" were simply too vague and imprecise to be included in any order. Of course those words are taken directly from section 4(5) of the Workplace Relations Act which says in this Act:

PN334

A reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct -

PN335

And all we have done in the order is to make it clear to the respondents that engaging in industrial action includes being directly or indirectly party to or concerned in that industrial action.

PN336

On the question of whether or not Mr Lea and Mr Hacking have been, my friend said, well, there's not enough evidence to enable you to draw the inference that they have been a party to or concerned with industrial action, there's one further authority that I'd refer you, Commissioner, to and that is a decision of the Supreme Court of Western Australia and Maton Contractors v CFMEU, a decision of Justice Le Miere, in matter CIV1132/2006. Sorry, the reference is 2006 WA Supreme Court 144. His Honour there had to consider what was meant by being directly or indirectly knowingly concerned in or party to contravention of the Act. At paragraph 25 his Honour said:

PN337

A person is directly or indirectly knowingly concerned in or party to a contravention if he or she has full knowledge of the essential facts or matters constituting the contravention and is an intentional participant by virtue of some act or conduct on his or her part which contributes to the commission of the offence. The person must engage in some act or conduct, including an intentional omission, which implicates or involves him or her in the contravention.

PN338

Then at paragraph 29 his Honour said:

PN339

A person is not involved in a contravention unless he assents to or concurs in the conduct which constitutes the contravention. To be involved in a contravention requires that the person have a practical connection with contravention. However it's not necessary that the person physically do anything to further the contravention. It is sufficient if a person, by what he's said and agreed to do, in fact became associated with and thus involved in the relevant sense in the conduct constituting the contravention. A person might vote against the conduct and subsequently assent to and associate himself with it. The principle of Cabinet Solidarity is an example.

PN340

Then at paragraph 36 in that particular case where his Honour was required to draw an inference in relation to the conduct of Mr Joseph McDonald, his Honour said:

PN341

On the evidence McDonald did more than merely attend a meeting and recommend to the employees that they return to work.

PN342

So on that occasion there was evidence that Mr McDonald had recommended a return to work and neither Mr Hacking nor Mr Lea have got in the witness box to give any evidence of any such thing on this occasion. His Honour said in relation to Mr McDonald on that occasion:

PN343

It's open to the tribunal of fact to infer that Mr McDonald convened the meeting and presided over it. McDonald acted as the spokesman for the striking employees in presenting his response to the joint venture representative and in speaking about the matter on the radio, it's open to infer that McDonald associated himself with the unlawful industrial action.

PN344

We say in this case that both Mr Hacking and Mr Lea have been party to or knowingly concerned in the industrial action that's occurred and therefore that they have engaged in industrial action in that sense and therefore it's appropriate to order that, to the extent that they've engaged in industrial action, in that sense that industrial action should stop and, as we say, the words at the bottom of paragraph 3 are taken directly out of the Act and, of course, I refer your Honour also to paragraph 23 of the TWU case where the Federal Court expressly allowed that an order could be made against the union or officials on that basis.

PN345

Finally, Commissioner, order 5, the question of service, I've already referred your Honour to the HSUA in the TWU decision, particularly the HSUA Full Bench decision as to what's sufficient for the purpose of bringing a matter to the attention of employees. The dates in 5(b)(ii) and the time and similarly the date in order 6 will need to change to reflect the fact that the matter ought conclude some time this afternoon.

PN346

Commissioner, subject to any questions that you may have, those are our submissions, may it please.

PN347

THE COMMISSIONER: Thank you, Mr Blackburn. I have no questions. The Commission will adjourn and I will resume in approximately 30 minutes to advise the parties of my decision. Thank you, the Commission stands adjourned.

<SHORT ADJOURNMENT [12.57PM]
<RESUMED [1.34PM]

PN348

THE COMMISSIONER: I will now read my decision with respect to this application. Mr Lourey, you can advise Mr Swan the outcome and we're already late. This is my decision with respect to the matter. I reserve the right to edit the transcript if necessary. Having considered all of the submissions and the evidence from the parties, I am satisfied that it appears that industrial action that is not protected action is happening and is impending. That's being carried out by employees of the applicant who are covered by the Workplace Relations Act 1996.

PN349

The action that is happening is strike action at the four sites mentioned, that commenced yesterday afternoon and is continuing this morning and the impending action is the stated intention communicated to management of the applicants that from AWU convenors that members of the AWU will not be attending for work at the commencement of their future rostered shifts. I'm satisfied that this application for an order under section 496 has been made by a person who is affected or is likely to be affected by the industrial action. Therefore under section 496 I must now make an order that the industrial action stop and not be engaged in.

PN350

Mr Lea and Mr Hacking have attended these proceedings today and neither have given evidence nor have made submissions. They've had an opportunity to do this and as such have had an opportunity to persuade me that they were not a party to the employees' decision to take the industrial action. Now, further, the direct evidence from the applicant's witnesses is evidence of the role of Mr Lea and Mr Hacking in communicating to the company on behalf of the employees how are taking the industrial action, the situation with respect to those employees, thus demonstrating that Mr Lea and Mr Hacking are associated with that industrial action.

PN351

Consequently I'm satisfied that Mr Lea and Mr Hacking have been party to and involved in the industrial action and it is appropriate consequently that they are also bound by this order. I will make this order generally in the terms sought by the applicant as per their draft, however with some minor wording changes, but also including removal of the duplication that the draft order provided in terms of the responsibility to advise delegates and employees of the existence of the order and of its effect. In the order you will see that obligation will fall on the AWU as a union only and will not also be required of Mr Hacking and Mr Lea separately.

PN352

The order will now be issued and will be made available to the parties by my associate. In due course my written reasons for this decision will be issued to the parties. The matter is now adjourned.

<ADJOURNED INDEFINITELY [1.37PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

RICHARD JOHN BATH, AFFIRMED PN27
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN44
CROSS-EXAMINATION BY MR LOUREY PN79
CROSS-EXAMINATION BY MR HACKING PN142
THE WITNESS WITHDREW PN152
BRUCE IVAN BUTSON, SWORN PN152
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN152
THE WITNESS WITHDREW PN193
JOHN DAVID BEAVAN, AFFIRMED PN193
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN193
CROSS-EXAMINATION BY MR LOUREY PN211
CROSS-EXAMINATION BY MR LEA PN220
THE WITNESS WITHDREW PN222