C2008/3186, Transcript of Proceedings [2008] AIRCTrans 669 (27 October 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17783-2

SENIOR DEPUTY PRESIDENT HARRISON

C2008/3186

s.496(1) - Application for order against industrial action (federal system).

Chubb Security Services Limited
and
Transport Workers' Union of Australia Transport Worker's Union of Australia - New South Wales Branch
(C2008/3186)

SYDNEY

10.10AM, FRIDAY, 10 OCTOBER 2008

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

PN1
MR R KRAJEWSKI: I appear for the
PN2
MR P BONCARDO: I appear for the Transport Workers Union with me today is MR G SELIG.
PN3
THE SENIOR DEPUTY PRESIDENT: Mr Boncardo, are you an officer or employee of the union?
PN4
MR BONCARDO: I am an officer, your Honour.
PN5
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Krajewski?
PN6
MR KRAJEWSKI: Your Honour this matter comes before the Commission as the result of the matters that the company seek from the union with respect to take industrial action next Tuesday 14 October. It is the company’s view that that action to be taken, is threatened and will be unprotected industrial action. Now I have with me Mr Jason Smith who is the operations manager for New South Wales and the ACT who is able to give evidence in relation to some of the matters in relation to this particular matter your Honour.
PN7
But in short we say that whilst a secret ballot order had been issued by this Commission on 3 July and whilst we had this subsequent notices, in fact two notices from the union to take protected industrial action no such action has in fact taken place since, well at all. So since the issuing of the order on 3 July there has been no industrial action. The parties have had discussions in relation to an enterprise agreement, a collective union agreement and or the unions are now threatening the company with industrial action we say it is contrary to the Act. It is a breach under the Act and in particular section 478 subsection (1) paragraph (d) which refers to a 30 day limit.
PN8
Your Honour they are our opening remarks in relation to that and there is evidence we would respectfully submit for our case which supports our argument that for protected action to be taken it needs to be taken within that 30 day limit unless there is an application for an extension of that time limit. We are not aware of any extension.
PN9
THE SENIOR DEPUTY PRESIDENT: Well that was going to be my first question I’m not aware of there being any application for an extension or an extension, so just assuming that for the time being but that is what our records show. The 30 day time limit that you refer to in section 478 runs from the date of the declaration of the results of the ballot. You mentioned that the protected action ballot order issued on 3 July do you know what the date was? Namely, the date of the declaration of the results of the ballot?
PN10
MR KRAJEWSKI: The result were received on 14 July, your Honour.
PN11
THE SENIOR DEPUTY PRESIDENT: 14 July. Maybe I might just find out a few preliminary matters from the union. I suspect they were served reasonably late so that might be one matter I need to attend to. But just before you go any further Mr Krajewski. Mr Boncardo, will it be your submission or your evidence that action has been taken since the declaration of the results of the ballot?
PN12
MR BONCARDO: That is correct your Honour I have been instructed that action was taken, that the applicant was served with notification of action within the relevant 30 day period and action was taken during that 30 day period. Our submission would be that action taken subsequent to that 30 day period in conformance with the case - - -
PN13
THE SENIOR DEPUTY PRESIDENT: Of the same nature?
PN14
MR BONCARDO: Of the same nature would be protected action and does - - -
PN15
THE SENIOR DEPUTY PRESIDENT: Yes, I see, well it sounds to me the first of those submissions Mr Krajewski accepts that you might have given some notices, but the second you seem to be apart on whether in fact action was taken.
PN16
MR BONCARDO: That does appear to be case, I have been instructed that such action was taken.
PN17
THE SENIOR DEPUTY PRESIDENT: Now is it going to assist you for you and Mr Krajewski to have a brief discussion about what evidence you rely on to establish that?
PN18
MR BONCARDO: I think that would be of assistance your Honour.
PN19
THE SENIOR DEPUTY PRESIDENT: I think so too, you may still nonetheless have an argument about the construction of the Act by reference to what facts you rely on. But if there are some facts you rely that you say constitutes the action, the sooner the two of you know what is asserted the better and Mr Boncardo, other than what appears to be one of the key issues here, what is the position of the union in relation to the order that is sought?
PN20
MR BONCARDO: Your Honour I’ve had a brief look at the order itself. It does seem to be somewhat broad considering the requirements of section 496 as enunciated by the Full Bench of the Federal Court. I’ve only had a brief glance at it, it seems to be possibly too broad.
PN21
THE SENIOR DEPUTY PRESIDENT: All right, well I suppose then in the event – well there’s a number of steps that one of course is one of the steps that relates to whether or not in the event I’m persuaded – not persuaded the requirements for an order to issue are made out, then you would be heard on the terms of the order that might issue. So that one seems at the moment just a little down the track. Perhaps the most important one for the two of you to consider is section 478(1)(d) doesn’t seem to be a lot of room for discretion, it’s either action has commenced or it has not and depending on the outcome of that it might have some significant impact on whether or not the matter proceeds. So how long do you think you need, 10 minutes?
PN22
MR BONCARDO: 10 to 15 minutes your Honour.
PN23
THE SENIOR DEPUTY PRESIDENT: If things are going well let my associate know. If you seem to be apart on what the evidence is that you rely on and the construction of the Act to that evidence, well let’s proceed with the matter sooner rather than later. But if it seems that your discussions about that matter and indeed generally the underlying issues here, are proceeding and you have some confidence you might be able to resolve matters, let my associate know. But in the short term we’ll – did you say a quarter of an hour Mr Boncardo?
PN24
MR BONCARDO: That would be adequate.
PN25
THE SENIOR DEPUTY PRESIDENT: You happy with that Mr Krajewski?
PN26
MR KRAJEWSKI: Yes, your Honour.
PN27
THE SENIOR DEPUTY PRESIDENT: I’ll adjourn for that - - -
PN28
MR BONCARDO: Your Honour sorry if I could just make a subsidiary point here?
PN29
THE SENIOR DEPUTY PRESIDENT: Yes.
PN30
MR BONCARDO: If evidence is to be called the union would reserve it’s right to call witnesses. We do note that we were served with this late yesterday and it may take some time for those witnesses to - --
PN31
THE SENIOR DEPUTY PRESIDENT: Well maybe you need to speak to that about that with Mr Krajewski too. Again, this is assuming that important and first point, the 478 point mightn’t be able to be resolved between the two of you. You’re aware of the time limits under the Act and the obligation for the Commission to proceed promptly.
PN32
MR BONCARDO: Yes your Honour.
PN33
THE SENIOR DEPUTY PRESIDENT: And the interim order and which might come into operation fairly soon and also the action that is relied upon by Mr Krajewski that is said to be such as to justify the order to issue seems to be coming up next Tuesday.
PN34
MR BONCARDO: That’s correct.
PN35
THE SENIOR DEPUTY PRESIDENT: So all of those facts suggest that you be looking, should a hearing proceed, a hearing proceeding very soon, rather than there be any significant adjournment. Maybe I shouldn’t be too cryptic that’s a matter if it proceeds, you’ll probably be getting at best an adjournment for hours, not days.
PN36
MR BONCARDO: That would be so, I believe that.
PN37
THE SENIOR DEPUTY PRESIDENT: So the two of you just bear that in mind too, but focus first on that important section 478 point. I’ll adjourn for a quarter of an hour.

<SHORT ADJOURNMENT [10.19AM]
<RESUMED [10.37AM]

PN38
THE SENIOR DEPUTY PRESIDENT: Who wants to go first, Mr Boncardo?
PN39
MR BONCARDO: Thank you, your Honour. I’ve conferred with the applicant and we inform you that we are – we have different views as to whether industrial action did occur within that 30 day period. Your Honour my instructions are that such action did occur and in the event that my friend seeks to argue otherwise, we would be looking to call witnesses in to counter those contentions. Your Honour if those witnesses are currently in Canberra, if a bit of a phone hook up could possibly be arranged, if that is possible.
PN40
THE SENIOR DEPUTY PRESIDENT: Bear with me a moment would you. Yes well if that’s necessary I’m sure at the very least a telephone point, but preferably a video link could be made available. Yes all right are there any other matters that you’re able to indicate to me that might either be the subject of some concession, or otherwise the subject of argument?
PN41
MR BONCARDO: There will be some matters which will be the subject of argument your Honour. I’ve been informed that the applicant seeks to bring evidence in regards to this industrial action and the union would have grave concerns as to the admissibility of some of that evidence. We would content that it would necessarily be hearsay in nature. It’s not been put in an affidavit form and that it would necessarily be prejudicial to the union as it will be very difficult to test.
PN42
THE SENIOR DEPUTY PRESIDENT: All right, but that’s because of something that Mr Krajewski has foreshadowed is it?
PN43
MR BONCARDO: Yes, that’s correct.
PN44
THE SENIOR DEPUTY PRESIDENT: Well again we can tackle that and you can raise your objection at the time that arises. Excuse me just a moment would you. Should it be necessary a video link to Canberra is apparently available and will be booked.
PN45
MR BONCARDO: Yes, thank you, your Honour.
PN46
THE SENIOR DEPUTY PRESIDENT: Yes, now this is a matter I can address to both of you. Not knowing any more about the actual factual matters that you’re apart on as to whether industrial action did or did not commence within the relevant period. I suppose if the TWU says it did not, does it really start with you Mr Krajewski to say it did? It’s not always easy to establish on evidence that something did not occur.
PN47
MR KRAJEWSKI: I suppose your Honour in terms of leading evidence Mr Smith would testify that he and a number of managers were in Canberra at a time of the allegedly, if I use that term, the protected industrial action took place in the first instance.
PN48
THE SENIOR DEPUTY PRESIDENT: Well before you go any further, let me just understand this. What’s Mr Smith’s position?
PN49
MR KRAJEWSKI: He’s operations manager for New South Wales and ACT.
PN50
THE SENIOR DEPUTY PRESIDENT: So New South Wales and the ACT yes?
PN51
MR KRAJEWSKI: Yes.
PN52
THE SENIOR DEPUTY PRESIDENT: Well perhaps I should ask this of the union first and I’m sorry to jump between the two of you, but the sooner I have some of these key facts clear or at least where you are in dispute, the better. When Mr Boncardo, on your instructions did industrial action commence during the relevant period and if you have even further instructions as to what the nature of it was that would be useful?
PN53
MR BONCARDO: Your Honour I don’t have exact instructions as to the date. I do have instructions as to the nature of the industrial action.
PN54
THE SENIOR DEPUTY PRESIDENT: Well that’s a start, let me know what your instructions are as to what the nature of that was?
PN55
MR BONCARDO: I’m instructed your Honour that overtime bans were undertaken by employees of the applicant, such as would necessarily include the non willingness to undertake overtime.
PN56
THE SENIOR DEPUTY PRESIDENT: Yes.
PN57
MR BONCARDO: The parking bans, which in the cash in transit industry involve not double parking or parking illegally, if I may use that word, outside of banks and other such venues were instituted within that 30 day period.
PN58
THE SENIOR DEPUTY PRESIDENT: When you say parking bans, that is when they would have otherwise been so required to park, they didn’t park that way, or is it something else?
PN59
MR BONCARDO: Your Honour if I can elaborate a little bit on parking bans. The cash in transit industry due to the safety issues of carrying enormous amounts of money around, the drivers tend – or have a practise of parking as close as they can to the venue where they’re picking up the cash from, so therefore if you’re parking outside the Commonwealth Bank and there are no parking spaces, they necessarily double park or park in some other manner which might be illegal so that they can have quick, fast access and safe access to the money. So our parking ban involves not parking illegally so therefore the drivers will park at places and at venues where they are legally able to park and this may necessarily have the effect of perhaps parking a significant distance away from the venue. The practise is known as work to rule whereby you work according to the necessary rules and because if say for instance there are no parking spaces within the distance of say 500 metres from the Commonwealth Bank a safety issue which will necessarily arise which may or may not inhibit the ability of those drivers to perform their work.
PN60
THE SENIOR DEPUTY PRESIDENT: I understand that any type or nature of industrial action that you’re instructed that occurred within the relevant period.
PN61
MR BONCARDO: Sorry your Honour Mr Selig’s has someone with some knowledge of parking bans and it could be quite fruitful if he is able to give - - -
PN62
THE SENIOR DEPUTY PRESIDENT: Yes, don’t worry about explaining any more about what is encompassed by either what you call either the work to rule, or the parking bans. Just let me know at the moment, what the industrial action is that you’re instructed was taken during the relevant period although as you mention earlier at this stage you can’t identify the date on which it was taken. Any other action, overtime bans, parking bans?
PN63
MR SELIG: Your Honour as I’m instructed a Mr Sam Young is an employee of Chubb participated in a refusal of overtime during the 30 day period and we say that that constitutes industrial action in line with the application sought.
PN64
THE SENIOR DEPUTY PRESIDENT: Right now in each case and I had heard earlier in this hearing that there were some notices of intention to take industrial action issued.
PN65
MR BONCARDO: That’s correct your Honour.
PN66
THE SENIOR DEPUTY PRESIDENT: They in turn link in with the action that was taken on your instructions?
PN67
MR BONCARDO: They do.
PN68
THE SENIOR DEPUTY PRESIDENT: All right, what would you need to do to ascertain the dates upon which this action was taken?
PN69
MR BONCARDO: Your Honour we would need to be getting in touch with the relevant union official. I’m instructed by Mr Selig, that he’s currently in a matter before the State Commission, the Federal Commission in Canberra at the moment. Alternatively we – I believe he’s aware as to the exact dates when the action did take place. Not withstanding him, we would look to get in touch with the relevant delegate from the yard and we’re informed that he is aware of those dates. In terms of contacting the relevant official that may take some time to come in on the length of his matter. In terms of contacting the delegate I believe it’s just a matter of whether he’s available to pick up the call.
PN70
THE SENIOR DEPUTY PRESIDENT: All right well where does all of that leave you Mr Krajewski?
PN71
MR KRAJEWSKI: It’s possible a difficult situation your Honour in a sense it would be evidence which would contradict the TWU. It’s our understanding that the nature of the work that was performed and the way that it was performed in that first period, was no different to what has happened and occurs in the industry than any other normal week. That there was no perceptive increase in activity no perceived industrial action and that being verified and we shall lead evidence in that regard so as to how this matter pans out, that there were representatives of management out in the field who would report to Mr Smith, being the senior official looking over the business in that particular area and we would lead evidence to suggest that and to say that there was no perceived industrial action by management at all in that period of time.
PN72
THE SENIOR DEPUTY PRESIDENT: Perceived or not perceived you will be saying there was no industrial action?
PN73
MR KRAJEWSKI: We will be saying there was no industrial action, yes.
PN74
THE SENIOR DEPUTY PRESIDENT: All right, well yes well putting to one side the logistical problems that the TWU is faced with and about which we can talk in a moment, the way the matter seems to be proceeding at the moment, is that you can commence Mr Krajewski, I assume you will be relying on Mr Smith to give evidence?
PN75
MR KRAJEWSKI: Yes, your Honour.
PN76
THE SENIOR DEPUTY PRESIDENT: I assume he will be the person who will be asserting there was no industrial action within the relevant period and then it would be a matter for the TWU to cross-examine him.
PN77
MR KRAJEWSKI: That’s right your Honour.
PN78
THE SENIOR DEPUTY PRESIDENT: Now quite apart form what Mr Boncardo has foreshadowed, any objections that might relate to hearsay but staying with what I see is the manner in which this will progress then the TWU gets to the situation they need to get instructions to enable them to cross-examine him to put to him the dates upon which industrial action was taken. So one way or the other whatever occurs we start for a short time, but it seems to me that there is an application by the TWU shall we deal with that up front right now and ascertain when the TWU will be in a position to have someone to instruct them or at least what is a reasonable time that should be allowed to them to be in that position whether or not they can successfully get their - - -
PN79
MR KRAJEWSKI: It seems to be a common sense approach your Honour.
PN80
THE SENIOR DEPUTY PRESIDENT: Yes, now quite apart from anything else is there some utility in discussing whether or not the action as foreshadowed is in fact going to occur next week? It seems to me that on what you’ve said so far there might have been some earlier occasions when notices might have issued but there is this question about whether in fact action occurred. So I suppose what’s behind all of these discussions this morning is the fact that the company is concerned that in accordance with the latest notice of intention to take action, there will be work to rule and parking restrictions in the ban of overtime starting next Tuesday.
PN81
MR BONCARDO: Your Honour at the moment I have been instructed that that is intended to take place. I would seek further instructions to clarify that.
PN82
THE SENIOR DEPUTY PRESIDENT: Yes, of course. That’s pretty fundamental, if for some reason it’s not going to occur on that date, that would be useful to know and not the least reason being what period of time you might be able to be given to take instructions. But it seems if your instructions are that is to occur and it is to commence as early as 6 am on the 14th, then we need to talk about how this matter proceeds. So what do you want to do Mr Krajewski? My current view is as I mentioned earlier if we start with you, we’ll probably only going for about a half an hour until the TWU seeks an adjournment to take instructions to enable them to cross-examine Mr Smith.
PN83
MR KRAJEWSKI: That’s correct I just wonder if for convenience we just lump it all in together and to it at once perhaps. I can call Mr Smith into the witness box now and lead evidence. Our following submissions would be limited in scope anyway relating to references to the references to the Act and on the case law we rely upon and the evidence that Mr Smith leads, that will be the focus of our submissions to day.
PN84
THE SENIOR DEPUTY PRESIDENT: Yes. Well I wouldn’t be interested in hearing any final submissions from you until I heard the evidence from the TWU.
PN85
MR KRAJEWSKI: No, of course.
PN86
THE SENIOR DEPUTY PRESIDENT: Yes well we can certainly proceed and let Mr Smith go as far as he can or Mr Boncardo, you can have a further at least a short period of time now to ascertain when you will be able to have a person give evidence by video link from Canberra if required and give you the additional instructions that you will need to know as to when this action that’s already been taken within the relevant period occurred. Mr Selig?
PN87
MR SELIG: Your Honour sorry if I can just answer that.
PN88
THE SENIOR DEPUTY PRESIDENT: Yes.
PN89
MR SELIG: We do have some a little bit of difficulty in terms of I don’t have the contact details for the relevant delegate and we may also consider calling Mr Young who as I’m instructed who as I previously advised, actually took industrial action in relation to the refusal of overtime. I don’t have the contact details for those and perhaps it would be fruitful if we could get assistance from the company to get contact details for those. I’ve tried to contact Mr Pinkus as Mr Boncardo has already alluded to but he is otherwise engaged at this time.
PN90
THE SENIOR DEPUTY PRESIDENT: He is the union official, the relevant union official?
PN91
MR SELIG: That’s correct, so we’re a little bit in the dark in terms of once we establish contact with both the delegate and possibly Mr Young then we’re in a better position to be able to advise you as to the mechanics of actually getting them to a facility for the video link et cetera, et cetera. In relation to what you’re suggesting in terms of what Mr Krajewski is suggesting in terms of placing Mr Smith on the stand, we would say that we’re happy for that to proceed at this stage to the point where we would then seek to get instructions once Mr Krajewski has finished his examination.
PN92
THE SENIOR DEPUTY PRESIDENT: We currently have booked a link to Canberra and it is available until 3.30 today and my associate is ascertaining if the other member of the Commission who has booked it at 3.30 still requires it or whether there’s been some movements on his matter. So therefore, that is the time limit within which we are operating. So I think what we do let’s get a start with Mr Smith. I don’t know whether the two of you nonetheless still need a five minute adjournment to alert someone out there that if this matter is proceeding and if you are to have the opportunity to lead evidence you’re going to have to do it within that sort of time limit. So it just seems to me you might need just a few minutes to alert someone to go seek these people.
PN93
MR SELIG: I agree your Honour it would be fruitful for a short adjournment so I can attempt to ascertain perhaps from the company, contact detail for the delegate, I’m not even certain of his name to be perfectly honest. But that to me would seem the quickest route of action to take to at least alert him that he may be required.
PN94
THE SENIOR DEPUTY PRESIDENT: Well whoever from your side is the person or are the persons who can give evidence that will be of – will persuade me of the position you put that industrial action was taken, the nature of it, and the date or dates upon which it was taken. That’s the person who needs to give evidence and obviously give you some instructions to allow you to put to Mr Smith that that is the position that you rely on. So let’s give you another five minutes and in the interim too, would the two of you discuss the underlying issue that is whether or – any accommodation can be reached between the two of you as to whether the action that is currently foreshadowed is in fact going to proceed.
PN95
MR SELIG: Thank you, your Honour I appreciate that.
PN96
THE SENIOR DEPUTY PRESIDENT: So another five 10 minutes and unless you’ve reached some accommodation between the two of you, you can commence Mr Krajewski and Mr Smith can give evidence and he can proceed for so long until the TWU either make – take some exception to his evidence and or seek a short period of time to take instructions to cross-examine him.,
PN97
MR BONCARDO: Thank you your Honour.
PN98
MR KRAJEWSKI: Thank you, your Honour.

THE SENIOR DEPUTY PRESIDENT: And my associate will let you know whether it looks as if we can have that video link for a little longer than 3.30, but for the time being assume that any evidence coming from Canberra will have to be led by then. The Commission now adjourns.

<SHORT ADJOURNMENT [10.56AM]
<RESUMED [11.09AM]

PN99
THE SENIOR DEPUTY PRESIDENT: Anything to report Mr Krajewski, yes Mr Boncardo.
PN100
MR BONCARDO: Sorry your Honour Mr Selig and myself attempted to contact the relevant official, the relevant delegate and one of the employees who we believe will be of some assistance to us. We were unable to contact them. We’ve left messages with them to call us as soon as it’s practical for them. Thus at this stage your Honour we are unable to provide to you and to my learned friend any instructions as to whether the proposed industrial action is still proposed to occur.
PN101
THE SENIOR DEPUTY PRESIDENT: All right, will someone be able to contact you whilst you’re in this hearing, although we don’t normally like mobile phones ringing, but they could be put on silent and nonetheless you’ll ascertain that someone is trying to contact you.
PN102
MR SELIG: Yes your Honour I can alter my phone, my phone is currently off obviously and I can alter my phone to alert me vibrating so I might just step out.
PN103
THE SENIOR DEPUTY PRESIDENT: Yes, I think that would be a good idea, and then at some stage if you need a short break to speak to them, that would be given.
PN104
MR SELIG: Your Honour if it pleases, I’ll just step out for a second and alter the settings.
PN105
THE SENIOR DEPUTY PRESIDENT: Thank you very much. Now in terms of documentation either of you have in your possession the earlier notices of intention to take action? Mr Krajewski you have those?
PN106
MR KRAJEWSKI: I believe that Mr Smith will have a copy.
PN107
THE SENIOR DEPUTY PRESIDENT: He will be able to – well presumably though you’ll put them in through him or?
PN108
MR KRAJEWSKI: Yes.
PN109
THE SENIOR DEPUTY PRESIDENT: All right well at that time we can take some additional copies. All right you proceed.
PN110
MR KRAJEWSKI: And also your Honour a copy of the order for down below his Honour Senior Deputy President Hamberger as well.
PN111
THE SENIOR DEPUTY PRESIDENT: I think I actually looked for that prior to coming in first thing this morning.
PN112
MR BONCARDO: Your Honour I’ve got additional copies of the Senior Deputy President’s order.
PN113
THE SENIOR DEPUTY PRESIDENT: All right, well you proceed Mr Krajewski.
PN114
MR KRAJEWSKI: If the Commission pleases I call Mr Jason Smith to the box.

<JASON DOUGLAS SMITH, SWORN [11.12AM]
<EXAMINATION-IN-CHIEF BY MR KRAJEWSKI [11.12AM]

PN115
MR KRAJEWSKI: Mr Smith can you inform the Commission of what your title is?---Yes, I’m the operations manager for New South Wales, ACT for Chubb Security Services.
PN116
How long have you held that position?---I’ve held that position for approximately two and a half years. Prior to that I was the general manager in South Australia and Northern Territory I’ve been with the business for approximately 12 and a half years and prior to that a - - -
PN117
Can you describe for the Commission the role that you currently have?---Yes, my role is responsible for the operations throughout New South Wales and ACT, overseeing the branches in Coffs Harbour, New Castle, ACT, Canberra and our branches also here in Smithfield and Lane Cove.
PN118
What does that actually entail?---That entails dealing with a variety of issues form overseeing project management of large machinery coming into the business. Dealing with industrial relations, process, procedures, it has a very strong operations focus.
PN119
Insofar as the operations focus is concerned, what does that involve insofar the AVO’s or armoured vehicle operators is concerned?---As far as the armoured vehicle operators is concerned it’s involved in dealing with the enterprise bargaining agreement process and working through those issues with them. Also dealing with any industrial relations issues that may arise from time to time.
PN120
Are you familiar with the way the AVO’s operate and how the logistics of AVO operations are carried out?---Yes, I’m very familiar obviously completed the induction training et cetera as well and been involved in fortunately various other industrial activities that have taken place in the business.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN121
Can you describe for the Commission how the actual AVO or the armoured vehicle operator logistics actually do perform?---With respect to the process of receiving a load in the morning, coming in, clocking on, receiving your firearm, verifying where your licence is et cetera, before you receive your firearm, being issued with your vehicle, your radios, checking all your equipment et cetera, then receiving your load, basically doing an inventory check off et cetera, signing and transfer of liability and then proceeding out on the road to conduct your daily collections and deliveries.
PN122
Are you familiar with proceedings in this Commission before Senior Deputy President Hamberger regarding an application for a secret ballot order?---Yes, I am with respect to the secret ballot that was taken in Canberra concerning the application to take industrial action by the Transport Workers Union in Canberra, yes.
PN123
Are you aware of the type of question that was raised within that order, brought down by his Honour?---Yes, I am.
PN124
Can you advise the, inform the Commission as to the type of question and the details of that question?
PN125
THE SENIOR DEPUTY PRESIDENT: I don’t think what Mr Smith’s view of the type of question assists me Mr Krajewski. I know what the question is there something else though that might be relevant about what his view of it is?
PN126
MR KRAJEWSKI: Sorry, I should withdraw that particular part not so much his view, as his understanding of what the question actually was.
PN127
THE SENIOR DEPUTY PRESIDENT: Yes, all right well I have it in front of me, yes.
PN128
MR KRAJEWSKI: Thank you, your Honour.
PN129
THE SENIOR DEPUTY PRESIDENT: Well when I say in front of me I should ensure that the order that I perused prior to coming into these proceedings earlier today is an order PR982265 dated 3 July?
PN130
MR KRAJEWSKI: Correct your Honour.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN131
THE SENIOR DEPUTY PRESIDENT: Yes, I understand and in respect of that earlier exchange I had in front of me a question in paragraph 8.
PN132
MR KRAJEWSKI: Thank you, your Honour I take that no further. The focus of that really was to find out from Mr Smith whether he understood the question and the detail of that question within that order.
PN133
THE SENIOR DEPUTY PRESIDENT: Yes.
PN134
MR KRAJEWSKI: Mr Smith what happens as a consequence of that order of his Honour being brought?---As a consequence of that order a secret ballot was taken place and was subsequently voted to take industrial action by the members of the union in the Canberra branch. Subsequent to that we received notification from the Transport Workers Union that industrial action was to take place and that the nature of that industrial action was overtime bans and parking restrictions.
PN135
I tender for the Commission – can I put this to Mr Smith first to confirm the identity of these particular matters which I have here a notice by the Transport Workers Union for its employees – for its members to take protected industrial action. Your Honour if I might pass this on to Mr Smith?
PN136
THE SENIOR DEPUTY PRESIDENT: Yes and you need some copies of this do you?
PN137
MR KRAJEWSKI: I think I can talk to it very briefly your Honour but I’ll tender this as an exhibit with the Commission’s indulgence.
PN138
Mr Smith can you identify that particular document?---Yes, this is a notice of intention to take protected action that I received from the Transport Workers Union concerning the Canberra branch with the details basically spelling out that industrial action was to take place between 23 July and 6 August and that was relative to parking restrictions because that was 6 am to 6 am on those dates and a ban on overtime to commence at 10 pm on 23 July through to 6 August. That appeared to be relative to the whole business.
PN139
I tender that your Honour.
PN140
THE SENIOR DEPUTY PRESIDENT: Yes thank you, may I have a look at that and then we can have some copies made. Is there another one coming our way as well Mr Krajewski?

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN141
MR KRAJEWSKI: That is the only copy I have your Honour I’m sorry.
PN142
THE SENIOR DEPUTY PRESIDENT: No, there wasn’t a subsequent notice?
PN143
MR KRAJEWSKI: Yes, there was yes, there.
PN144
THE SENIOR DEPUTY PRESIDENT: Well we might wait until we receive that one too and then some copies can be made. Just bear with me a moment would you.
PN145
MR KRAJEWSKI: Sure.
PN146
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I’ll mark that.

EXHIBIT #CHUBB 1 DOCUMENT DATED 17/07/08

PN147
MR KRAJEWSKI: Thank you, your Honour.
PN148
THE SENIOR DEPUTY PRESIDENT: Yes.
PN149
MR KRAJEWSKI: Mr Smith, you understand that the form of action that was proposed in that notice to be in line with the action identified in the secret ballot order?---Yes.
PN150
Can you tell the Commission what was the company’s response to that notice?---The company’s response was that we commenced to prepare for the industrial action. We immediately basically ran off the run sheets for the period that it - that action was scheduled for. We then coordinated what are referred to as CSIs. A CSI is a - it’s a customer information, servicing information sheet and it outlines where the customer’s location is, where our vehicle is recommended to park and consumer points, et cetera. It’s quite a sensitive document, that particular issue. We then printed them off, collated them relative to the run so that if the run was going to point A, point B, point C, they had the CSI for point A, point B, point C so they knew exactly where that truck had to go, where it should be parking approximately and where they would be going in to service the customers. We repaired all of that. We then also prepared an organised sufficient management human resource to ensure that they were available on site on the day that the action was to commence. And that included transport and cash run.
PN151
Can I take you back a step. When you referred to this organisation, can you advise the Commission as to who was involved in this process?---Yes. Basically I drove the process, or I took ownership of the process. I was required to report up to senior management. There was the site manager, or the branch manager, I should say, and there were multiple other managers throughout our business involved in this process.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN152
Were those people that you have just referred to - what would have been their reporting directives?---We briefed the staff on - mostly everyone was there the day prior to the industrial action taking place and we briefed the staff that they would be accompanying the transport employees in the truck where we had facilities to do that and for several of the trucks we actually had an extra seat in the vehicle so that the manager or supervisor would actually be accompanying the employees. For the other trucks where we didn’t have the additional seats, they followed the truck throughout the day. Their instructions were to observe, to watch, look, and understand exactly what was going on with reference to where the people were parking - sorry, where our staff were parking, to identify if we were - encountered any industrial action and in reference to what the CSI had recommended. There was then a requirement at the end of the day to provide a debrief and what we found was when they came back was we found that some of the parking positions were not optimum, that our staff were actually parking in better positions. In actual fact, they had been parking in better positions for some time and this was being openly communicated to us and so, as a result, we actually reviewed some of our CSIs in accordance with that.
PN153
Can I stop you there for a moment and can I ask you how long did this action on behalf of yourself and the other managers take place, over what period of time?---For the industrial period - for the period that the action was in place.
PN154
The two-week periods identified in the notice?---Yes, basically.
PN155
THE SENIOR DEPUTY PRESIDENT: Well, basically might not be good enough?---Sorry.
PN156
It’s your assertion that industrial action as defined by the Act did not occur during the relevant period. Thus far, I understand that you introduced a different practice having briefed employees the day before the action was due to start so I have assumed they were briefed on 22 July or thereabouts, and from 22 July through to 6 August inclusive the practice that you have foreshadowed in relation to vehicles with a spare seat and those that did not was observed by management; is that right?---Your Honour, we had conversations with the Transport Workers Union delegates as well as the organiser during that two-week period.
PN157
Tell me the names of those persons?---Claus Pinkus.
PN158
Claus Pinkus? Who is he?---He’s the organiser.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN159
He’s the organiser. Yes?---David Longin.
PN160
Can you spell his family name?---L-o-n-g-i-n.
PN161
Longin, yes, thank you?---Scott McKenzie.
PN162
What’s Scot McKenzie’s position to your - within the union, to your knowledge?---He’s a delegate.
PN163
He’s a delegate. Yes?---Samantha Young.
PN164
Samantha Young, yes?---Also a delegate.
PN165
Yes. And these are all employees?---Yes.
PN166
At the ACT branch?---Yes, they are.
PN167
Who were persons who were covered by the EBA?---That’s correct.
PN168
Yes. I understand. Yes, anyone else?---Dean Currage, I think. I’m not sure. I’m not sure of Dean’s last name.
PN169
Dean - that’s all right. Dean query.
PN170
Yes?---We had multiple conversations not necessarily with all of those people at once.
PN171
MR BONCARDO: Your Honour, may I just stop the witness. The “we” seems to be someone he’d be with.
PN172
THE WITNESS: Sorry, my apologies.
PN173
THE SENIOR DEPUTY PRESIDENT: Did you have conversations?
PN174
MR BONCARDO: And your Honour, I - - -
PN175
THE WITNESS: I had conversations and I was also party to the conversation which also involved my general manager.
PN176
THE SENIOR DEPUTY PRESIDENT: Yes?---And I was present during those conversations.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN177
Yes, proceed?---One of the - agreement reached during one of those conversations was that we would re-roster casual staff at which stage the threat of industrial action would be lifted. In actually fact, the delegate at one stage - I think it was on the 23rd or 24th, gave us a written statement saying that there would be no industrial action until the 28th.
PN178
MR BONCARDO: Your Honour, he’s asserting that the delegate gave - - -
PN179
THE WITNESS: I have a copy of that statement.
PN180
THE SENIOR DEPUTY PRESIDENT: Yes. If a document of that nature is in your possession or can be obtained it could be provided? Do you have it, Mr Krajewski?
PN181
MR KRAJEWSKI: Yes, yes, your Honour.
PN182
THE SENIOR DEPUTY PRESIDENT: Do you want to show it to Mr Boncardo?
PN183
MR KRAJEWSKI: Is that the statement dated 4 August? Could I just identify that Mr Smith please, your Honour?
PN184
THE SENIOR DEPUTY PRESIDENT: Yes.
PN185
MR BONCARDO: Dated 4 August, is that correct?
PN186
THE WITNESS: No, that’s not - that’s something - - -
PN187
THE SENIOR DEPUTY PRESIDENT: I thought Mr Smith was speaking about something that he might have received about the 23rd of 24th and I assume that means 23 or 24 July.
PN188
MR KRAJEWSKI: Yes.
PN189
THE WITNESS: I think there’s an actual date on it except that it says that there’s no industrial action.
PN190
MR BONCARDO: It’s undated. Your Honour, as it is undated we would have grave - we’re drawing attention to the section 110 of the Act. An undated letter is submitted as evidence on the assertion - is it occurred - - -

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN191
THE SENIOR DEPUTY PRESIDENT: This witness is perfectly entitled to identify a document that came from your side and then say, in evidence, the date upon which he recalls he received it. He’s not saying what the date of the document was. Clearly, if the document is undated he cannot. But he’s perfectly entitled to be asked to identify a document and give his best recollection as to the date he received it and it would be useful to know from whom so that the TWU could take some instructions, Mr Smith - Mr Krajewski.
PN192
MR KRAJEWSKI: Thank you, your Honour. Can I just put this document to Mr Smith for confirmation, please?
PN193
THE SENIOR DEPUTY PRESIDENT: Yes. But have you let Mr Boncardo have a look at it?
PN194
MR KRAJEWSKI: Sorry, yes.
PN195
MR BONCARDO: Thank you.
PN196
MR KRAJEWSKI: Mr Smith, can you confirm that that is the document you’re referring to?---Yes, that is the document that I’m referring to.
PN197
Can you read out the document for the Commission and we’ll - - -
PN198
THE WITNESS:
PN199

Just confirming that if Chubb management have all available Fyshwick Depot crew working on Monday, 28 July instead of out-of-town crew we will not take form of protective action on that day. I will also make myself available for negotiations to try and resolve any issues with our EBA. David Longin.

PN200
And David Longin is the, I guess, primary delegate at the Canberra branch.
PN201
MR KRAJEWSKI: I tender the document.
PN202
THE SENIOR DEPUTY PRESIDENT: Yes. I assume it’s the only copy you have?
PN203
MR KRAJEWSKI: Yes.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN204
THE WITNESS: That is the original, your Honour.
PN205
MR KRAJEWSKI: This is the only document as well, your Honour.
PN206
THE SENIOR DEPUTY PRESIDENT: Yes. It’s a one-page typewritten document, undated. It appears to have been signed off - well, in type - it is typed that it comes from a - it is prepared by a Mr David Longin. There’s a signature on the document I can’t make out but I know what Mr Smith has said about this document.

EXHIBIT #CHUBB 2 ONE-PAGE TYPEWRITTEN DOCUMENT, UNDATED, POSSIBLY PREPARED BY MR DAVID LONGIN

PN207
THE SENIOR DEPUTY PRESIDENT: When do you think you received this, Mr Smith?---I’m not sure, your Honour, whether it was the Thursday prior to the Monday.
PN208
In any event, was it at a time - well, when you say Thursday - - -?---The Monday was the 28th, your Honour.
PN209
Yes?---So the Thursday prior to that.
PN210
Right. Well, at the time you received this, had any industrial action been taken?---No.
PN211
All right. Well, again, a copy of this can be provided to the union. If there’s anything else you’re going to be putting to this witness and copies are required, maybe you can do that, Mr Krajewski, and then my associate can copy all of them.
PN212
MR KRAJEWSKI: Thank you, your Honour. There will be only one further document.
PN213
THE SENIOR DEPUTY PRESIDENT: All right.
PN214
MR KRAJEWSKI: Mr Smith, in your involvement with the employees and management in Canberra during that two-week period, were - what level of contact did you have firstly with the employees, the delegates, and secondly with your management group?---Significant. I was virtually talking to both the employees and my managers non-stop but that was the critical issue, was to maintain communication so - and we got a lot of feedback from our staff about things that we could fix which was great. And it was critical to understand what was going on and what feedback my managers and supervisors were receiving as well.
PN215
So can I conclude from that that your involvement encompassed an overall understanding of what was occurring in Canberra during that two-week period?---Yes.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN216
That conversations that you had with your delegates were direct face-to-face discussions with those delegates?---Yes.
PN217
Can I take you back to your description of the instructions, if I could use that word, that you gave to your managers? Firstly, just to recap, the managers who were either inside the armoured vehicles and following - or following those armoured vehicles?---They were told to be polite, be professional, be courteous, to monitor and understand exactly what was going on and report back everything that they observed. Specifically, we wanted to understand whether industrial action was being taken. That was a key issue that was highlighted. But also if there were any - anything else that was - other opportunities that were envisage - seen or identified during this timeframe.
PN218
Can I ask you then, just in relation to the industrial action, the instruction on industrial action, were the managers advised as to what type of action to look out for?---Yes. Yes.
PN219
What was that?---They were told to specifically observe and look at how our - the staff were parking given they were given a copy of the CSI and understood exactly where the recommended parking was.
PN220
And what about in terms of any bans?---With respect to parking to rule, they were told to make observations and report back any observations where that parking was observed to be parking to rule.
PN221
And you said earlier that at the end of each day there was a debriefing session?---At the end of each day those run sheets were returned and each employee was spoken to with respect to the observations they made.
PN222
Who were they returned to?---Me. I spoke to the individual employees as they came back, they returned those run sheets. The critical issue is that those run sheets had attached to them the CSIs which are very, very sensitive in our business and for that reason I took ownership to make sure that I didn’t want to lose any of that because that would basically create a safety issue for my employees to start with. So that was paramount to get that back. And that’s their - that’s the precursor that starts the conversation: what happened today? Where did they go? What did they do, et cetera, et cetera. What we found, in all honesty, is we actually slowed the guys down a bit, to be honest with you. But we didn’t - we didn’t see any industrial action. We didn’t - we had guys in the trucks, we had guys following the trucks and we didn’t see any industrial action.
PN223
How long did this go for?---I can’t say that we were there for the two weeks because I’m of - I believe that we agreed that there wouldn’t be any industrial action.
PN224
So insofar - sorry.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN225
THE SENIOR DEPUTY PRESIDENT: With who?---With the TWU and the delegates.
PN226
To say - which persons identified?---With Claus and David, et cetera. I have minutes that basically says that if we roster the - from one of the meetings we had, if we rostered the casuals back on then the threat would be suspended basically.
PN227
MR BONCARDO: Your Honour, would those minutes be able to be tendered?
PN228
THE SENIOR DEPUTY PRESIDENT: Yes, indeed. That’s something you can make some enquiries about as to whether the minutes are able to be obtained so as to better be able to identify the date that these agreements might have been reached?---Yes. Your Honour, the minutes - I recorded notes at the meeting which I have called “minutes” and whether they would be accepted as minutes.
PN229
Well, don’t be too concerned about “minutes”. Don’t read anything official into that. It’s more perhaps being able to be in a position to identify with a little more certainly the date upon which - date or dates upon which these agreements, if I could call it, might have been reached or whether - or perhaps the union might have given you to understand that no action was to be taken. That’s really the importance of this exchange?---Okay.
PN230
MR KRAJEWSKI: Your Honour, I’ll come to that shortly. I’m a bit uncertain myself as to the location of that. I might have to get some advice from Mr Smith as to where I might locate that.
PN231
THE SENIOR DEPUTY PRESIDENT: Yes.
PN232
MR KRAJEWSKI: Would that in the - - -?---In my giant book basically.
PN233
THE SENIOR DEPUTY PRESIDENT: Let Mr Smith have a look at some documents. He might be able to find them more quickly than you, Mr Krajewski.
PN234
MR KRAJEWSKI: If I might, your Honour?---Thank you. That’s the page. The meeting started on the - at about 10.15 on the 28th and - - -
PN235
THE SENIOR DEPUTY PRESIDENT: What date was that?---The 28th.
PN236
MR KRAJEWSKI: Mr Smith, before I show this to the TW - is it only that single page that you’re referring to?---It’s the bottom of the page, the next one over. Bottom of that page when I made the notes.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN237
And not the documents that are combined?---No. No, everything else in there is probably - maybe it’s sensitive to - - -
PN238
THE SENIOR DEPUTY PRESIDENT: Well, then - no, I’m alert to that. Maybe Mr Krajewski, ensure that Mr Smith knows exactly what it is that the union are being shown and that in turn copies of that document will be made. And obviously if there are other matters in there that are not relevant to the issues before me and/or additionally are sensitive they can be attended to separately.
PN239
MR KRAJEWSKI: Thank you, your Honour.
PN240
THE SENIOR DEPUTY PRESIDENT: Are you confident you know what it is that Mr Smith is referring to? What extract of that document in your hand he refers to?
PN241
MR KRAJEWSKI: Only in relation to these two pages is what I’m confident about.
PN242
Is that what you were saying, Mr Smith?---Yes, that’s the minute - or the record of the meeting that I held with - or that I was party with those employees or delegates.
PN243
There are references to the delegates. I just pass this over to my friend to have a look - a quick look.
PN244
THE SENIOR DEPUTY PRESIDENT: Yes, of course. Yes. And what was resolved insofar as you understood - what was resolved with the union about what action might be taken at any time after that meeting which I think you said started at 10.15, 28 July?---The result was that if we re-rostered casual employees, put them back on the roster, that the threat of industrial action would be suspended.
PN245
Explain that a little bit more to me?---We had as a result of the notification of the industrial action we had amended the roster and basically not rostered any of our casual employees because they are casual employees. And we had a look to substitute those staff with supervisors and managers who were virtually trained. That was identified as a level of frustration and the union sought to have the employees - the roster go back to the normal basically. That’s what they wanted.
PN246
Tell me this so I understand a little about the nature of rostering of employees for casual work. Are person who otherwise might be full-time or part-time persons from time to time rostered with the status of casuals to do overtime or are those casuals different persons, not part of your full term - or part-time?---Those casuals are different persons.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN247
Yes, thank you.
PN248
MR KRAJEWSKI: Thank you, your Honour. Might I tender just these two pages to the Commission.
PN249
THE SENIOR DEPUTY PRESIDENT: All right. Well, make sure that my associate knows exactly which two - are the two pages that are being tendered, copies of which will be taken and a copy to the union.
PN250
MR KRAJEWSKI: Thank you, your Honour. I tender that.

EXHIBIT #CHUBB 3 TWO-PAGE EXTRACT FROM MR SMITH’S “BIG BOOK”

PN251
THE SENIOR DEPUTY PRESIDENT: Did you re-roster casuals back on to the roster?---Yes, we did.
PN252
Mr Krajewski?
PN253
MR KRAJEWSKI: Thank you, your Honour?---Sorry, if I could just add on that. In actual fact, your Honour, permanent part-time staff were also reduced back to their minimum hours that they’re entitled to. So if they were entitled to 24 hours and they may have been getting 32, we reduced them back to 24.
PN254
THE SENIOR DEPUTY PRESIDENT: Yes, I see?---In conjunction with removing the casuals. Everyone was put back to a normal roster.
PN255
Put back to what they would have normally been rostered?---Yes.
PN256
Yes, I do understand that?---Yes, your Honour.
PN257
MR KRAJEWSKI: Thank you, your Honour.
PN258
Mr Smith, therefore, insofar as the various reports - and I’ll come back to that - on a daily basis were concerned, to summarise again, did you have then a clear understanding or otherwise as to what happened on each particular day?---Yes, I did.
PN259
Can you advise the Commission as to how a normal week would work insofar as .....?---I’m not sure we have the four weeks, to be honest with you. The frustration that we have in our business is that we will have points of failure or points of distraction, however you want to refer to them, and they can be driven by a customer who delays you. They can be driven from someone who has your parking spot at the front of the bank. They can be driven by a vehicle breakdown. So whilst we schedule runs to go for eight hours or seven and a half hours, et cetera, they could sometimes go much shorter than that. They could be back in six hours or they can go sometimes longer than that. They can go ten hours. There is a degree of uncertainty around it from that point of view. I mean - yes.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN260
During then the spread of time that we are specifically referring to, did you notice anything different in that particular week to what had happened in the normal, in any sense?---No. Look, we - from what I saw it was business as usual. It actual fact, the union delegate, David Longin - I mean, he was really quite good. He actually worked with us when we had a truck breakdown at our fartherest service point. He worked with us to resolve that and work through that. And I would have thought that would have been a perfect opportunity to stand on your ....., so to speak.
PN261
So being the senior manager in this process of two weeks with the road crew, did you then perceive anything different in terms of any bans or limitations or parking restrictions occurring to what might have happened over previous time?---Probably the one thing that did happen was we actually finished earlier. The cash processing side of our business, we actually finished earlier and someone complained that they would have normally gotten eight hours instead of seven and a half hours because we had the extra staff there so that was Denise. And we paid her for it anyway so - you know.
PN262
Can I take you then - so, just to summarise. Can I put it to you that from what you have advised the Commission that there was no industrial action occurring?---No. Well, we didn’t see any.
PN263
MR BONCARDO: Sorry, your Honour, we didn’t - - -
PN264
THE WITNESS: I’m sorry. I’m not aware of any industrial action that took place, no.
PN265
MR KRAJEWSKI: But as senior manager you would have - it would have come to your attention, would it not?---Yes. It was - it was - all of the supervisory and management staff were told that if they identified anything to bring it to my attention.
PN266
And did they?---They brung various things to my attention but certainly not industrial action, no.
PN267
Mr Smith, the - following on from that period of time with that particular notice, was the company issued with another notice to take industrial action?---Yes, we were.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN268
May I serve to my friend, your Honour, a copy of notice that we received dated 31 July from the TWU.
PN269
MR BONCARDO: That notice was subsequently withdrawn.
PN270
THE WITNESS: It was still served.
PN271
MR BONCARDO: It had been served - thank you.
PN272
MR KRAJEWSKI: I pass it over to Mr Smith to identify this document as well.
PN273
Mr Smith, can you identify that document?---Yes, I can. This was a notice that was served on me with respect to industrial action to take place at the Canberra branch, to commence at 12.01 on Wednesday, 6 August, and complete on Wednesday, 13 August at 11.59 relative to all paperwork bans - a ban on the paperwork and also a ban on working with non-Canberra based employees to commence in the same timeframes.
PN274
I tender that document.

EXHIBIT #CHUBB 4 COPY OF NOTICE OF INTENT TO TAKE PROTECTED ACTION DATED 31/07/08

PN275
MR KRAJEWSKI: Thank you, your Honour.
PN276
Mr Smith, what was the follow-up, so to speak, of that particular document?---Yes. Initially we immediately started to prepare for the industrial action as we were notified of. We also then sought legal opinion with reference to the fact that there was a question mark, whether that was actually legal. We were advised that that wasn’t - it wasn’t legal industrial action. It hasn’t - hadn’t been voted on and subsequently we sought to communicate that with our employees. And we communicated that with our employees, half - well, actually I think the majority, as I recall, didn’t even know about the industrial action and the response from the delegate was: yes, we thought you’d figure it out.
PN277
So was any industrial action taken as a consequence that notice?---No, there was no industrial action taken.
PN278
Thank you. What has been the situation between that period of time up to today, so to speak, in terms of industrial action?---We’ve continued to communicate with our staff and work with our staff in trying to reach agreement relative to the enterprise agreement and as such there has been a vote conducted because at the time it was thought that it may ..... and the organiser and the delegates were happy for it to go to the vote. And it subsequently went to the vote. Unfortunately, it was voted down, 13 to 16 - 16 against and as a result of we’re looking to have a meeting with the union, the delegates. They had - I was actually on leave unfortunately last week when I got phone calls from Claus Pinkus which I took. I took the phone calls and spoke with him with reference to trying to organise a meeting. There was a desire to organise a meeting this Tuesday which is the day after a long weekend and we basically tried to do two days work in one day, after a long weekend, unfortunately and I suggested that’s not palatable. We can’t be pulling four people out of the business when we’ve only got 35-odd people there and put forward the position that the next time I have HR available is actually Friday week, from now. And I asked Klaus to take that back. And then on Tuesday I got a phone call from David advising me that he wanted the meeting today, as in Tuesday. I said: look, I can’t - can’t do it. It’s not doable, sorry, et cetera. And I asked him - well, I said to him that we need to do it on - next time I’ve got Phil available who’s HR is next Friday and can we, you know, work towards that, and the response was no, and there’ll be industrial action.

**** JASON DOUGLAS SMITH XN MR KRAJEWSKI

PN279
So can I take it from that that from the time of the second notice that you have just looked at to now, there’s been no industrial action?---That’s correct. Yes, there’s - we have been talking to the guys, yes, there’s no industrial action.
PN280
I’ll conclude by asking you this question: in your view, as senior manager involved in this negotiating process, and involved with the TWU, has there been any industrial action or industrial action of any nature since the ballot - secret ballot order was brought down and the results come out in early to mid July?---No.
PN281
MR KRAJEWSKI: I have no further questions, your Honour.
PN282
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Now, we’ll have copies taken of each of those documents. Mr Selig.
PN283
MR SELIG: Thank you, your Honour. Your Honour, at this point in time the union would ask - we wish to seek an adjournment while we seek some instructions from our members. I’m pleased to report to you that I have received a call during Mr Smith’s testimony from Mr Pinkus. Mr Pinks has - is in the process or organising Mr Scott McKenzie to be available via video link in Canberra. Mr Pinkus instructs me, your Honour, that they will be available form 12.30.
PN284
As I’m instructed, your Honour, Mr McKenzie is a co-delegate at the Canberra operation in some - one of the - if the - that’s the only operation and as I’m instructed he will be able to give direct evidence to support the union’s claim that industrial action did take place. So, on that basis we would seek and adjournment while we seek further instruction from Mr Pinkus and also Mr McKenzie at this point in time in regard to Mr Smith’s testimony, your Honour.
PN285
THE SENIOR DEPUTY PRESIDENT: All right. Well, the stage we’re at of course is it’s now your opportunity to cross-examine Mr Smith but you need to take some instructions from some of your people. How long do you need between now and 12.30 or - - -
PN286
MR SELIG: Your Honour, as I - yes. What we would endeavour to do is contact Mr Pinkus and see exactly how that process is going in terms of his timing. Perhaps if we could say - it’s a quarter to 12 now. Perhaps if we could have an hour, let’s say, to enable us to ensure that the video link - the process in Canberra is actually on schedule and that will allow us to: (a) determine that that is in fact on schedule; and (b) seek some instruction from Mr McKenzie in relation to Mr Smith’s testimony, your Honour.
PN287
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Krajewski?
PN288
MR KRAJEWSKI: I don’t object, your Honour.
PN289
THE SENIOR DEPUTY PRESIDENT: 1 o’clock?
PN290
MR KRAJEWSKI: Yes.
PN291
THE SENIOR DEPUTY PRESIDENT: All right. Now, Mr Smith, you’re still under oath and you should be aware that - and Mr Krajewski can give you advice on this but it is not appropriate for you to discuss your evidence after you have been cross-examined and released from a witness box. If new matters come up that Mr Krajewski may need to take some instructions from you, well, he will let me know but you leave the witness box on the basis that, as I understand thus far, that is the evidence for Chubb.
PN292
I intend to adjourn until 1 pm. I’m told that the video link in Canberra will be available and a person will be available there to - in the event witnesses need to be affirmed or an oath taken there.
PN293
MR SELIG: Thank you, your Honour.
PN294
THE SENIOR DEPUTY PRESIDENT: And I’m also advised that no other person requires that link this afternoon so we can proceed with this matter this afternoon.
PN295
MR SELIG: Thank you, your Honour.
PN296
THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

<LUNCHEON ADJOURNMENT [11.56AM]
<RESUMED [1.07PM]
<CROSS-EXAMINATION BY MR BONCARDO

PN297
MR BONCARDO: Mr Smith, in the period between 23 July and 6 August did your yourself personally participate in the surveillance of your employees?---On road, no.
PN298
I put it to you that Scott McKenzie is an employee of yours, are you aware of Scott McKenzie?---Yes, I know Scott McKenzie.
PN299
An employee of your organisation?---He certainly is, yes.
PN300
I put it to you that Scott McKenzie took industrial action by engaging in a parking ban in the period between 23 July and 6 August?---I didn't know.

**** JASON DOUGLAS SMITH XXN MR BONCARDO

PN301
Are you able to refute that information?---Yes. From my point of view he was followed and there was no records that he'd participated in that parking ban.
PN302
How do you know that?---We had staff that were - - -
PN303
Sorry. Do you recall being informed by any of those staff that he had not engaged in industrial action?---I had been informed by those staff that they'd not observed any industrial action, parking bans being taken.
PN304
Do you recall the name of those staff who observed Mr McKenzie?---I can't identify specifically which staff member it was that was following him, no, but I can identify all the staff that were involved in the, I guess, surveillance if that's what you want to call it.
PN305
So you cannot recall any instance of being informed that Mr Scott McKenzie did not take industrial action during that period, specifically Mr McKenzie?---No. I have not been informed of Mr McKenzie taking any form of industrial action, no.
PN306
No further questions.

<THE WITNESS WITHDREW [1.09PM]

PN307
THE SENIOR DEPUTY PRESIDENT: Mr Krajewski, anything further from your side?
PN308
MR KRAJEWSKI: Not at this stage, your Honour.
PN309
THE SENIOR DEPUTY PRESIDENT: Now, what you might assist me with though is just some procedural matters. The application and order have been served, have they?
PN310
MR KRAJEWSKI: They have. In fact, it was early this morning, your Honour, they provided the copy of the application ..... yesterday. There were some difficulties unfortunately yesterday in relation to that. I do apologise to the Commission with respect to that, but they certainly were provided with the ..... application in this matter.
PN311
THE SENIOR DEPUTY PRESIDENT: Yes, and to the extent to which the copy of the order that is sought was provided to them, who was it provided to and by what means?
PN312
MR KRAJEWSKI: It was both emailed and then faxed this morning. It was faxed to Rose Pace, to the Federal Secretary. It was also forwarded by email to the ..... of the TWU.
PN313
THE SENIOR DEPUTY PRESIDENT: Yes. Anything done internally by your client in relation to notification to any employees directly?
PN314
MR KRAJEWSKI: No, not at this stage, your Honour.
PN315
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN316
MR KRAJEWSKI: I'm sorry. I'm advised, your Honour, that Mr Smith had a discussion with Mr Longan last - on Wednesday of this week in relation to the anticipated notice for industrial action and Mr Smith indicated to Mr Longan that the company would be responding to that notification. So that's the only direct contact.
PN317
THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Yes, thank you. Mr Boncardo, or Mr Selig, who is - - -
PN318
MR SELIG: Your Honour, we'd like to call up Mr Scott McKenzie to the witness stand, please.
PN319
THE SENIOR DEPUTY PRESIDENT: Yes. The parties should be aware that I have made a copy of the exhibits thus far available to an officer of the Canberra Registry so if Mr McKenzie was to be asked any questions about those documents they are there in Canberra and can be shown to him.
PN320

THE FOLLOWING EVIDENCE WAS CONDUCTED BY VIDEO CONFERENCE

<SCOTT LEONARD MCKENZIE, SWORN [1.12PM]
<EXAMINATION-IN-CHIEF BY MR SELIG

PN321
MR SELIG: Good afternoon, Scott. It's Greg Selig from the Transport Workers' Union here. Can you please state the name of your employer and your occupation for the record?---Yes. Chubb Security Services and I'm an Armoured Vehicle Operator.
PN322
How long have you been employed by Chubb?---Approximately four to five years, about four and a half years.
PN323
On a permanent basis?---Part time basis.
PN324
And what are your duties involved in performing that work for Chubb?---I do street operations and some other clerical work when required.
PN325
Thanks. I'm going to hand over to Mr Boncardo. He's from the TWU and he's going to ask you some further questions in relation to the matters at hand?---Yes.
PN326
MR BONCARDO: Mr McKenzie, between 23 July and 6 August did you undertake deliveries?---Yes, I did.
PN327
Did you during that period perform any deliveries in a different fashion to how you would usually perform them?---Yes, I did.
PN328
Can you describe one of those deliveries?---I done a delivery to the Westpac Bank in Petrie Plaza and instead of driving up Petrie Plaza itself and parking out the front door, I did it from the loading zone or taxi zone on London Circuit.
PN329
Why did you do that delivery differently to how you would normally perform it?
---Because we were currently taking industrial action at that time.
PN330
What would you have normally done in terms of performing that delivery?
---Well, ordinarily we drive through Petrie Plaza and drive through Petrie Plaza and park straight out the front doors of the bank.

**** SCOTT LEONARD MCKENZIE XN MR SELIG

PN331
And was the different way that you performed what could be called a parking ban?---Yes.
PN332
Did you undertake any other deliveries differently during the period between 23 July and 6 August that you can recall?---Yes. It would have been the ANZ branch at Petrie Plaza as well.
PN333
Why did you undertake that delivery differently?---For the same reasons as the Westpac, because they're quite literally across from each other, so we conducted the two transactions from the same location.
PN334
And in conducting that delivery differently were you undertaking what could be termed a parking ban?---Yes.
PN335
Mr McKenzie, do you know Mr Smith who I believe is the Operations Manager of Chubb in New South Wales and ACT?---Yes, I do.
PN336
Were you with Mr Smith at any time between 23 July and 6 August whilst performing your deliveries?---No.
PN337
Was there anyone in the van with you whilst you were performing those deliveries who would have not been part of your crew, perhaps a manager or a supervisor?
---No.
PN338
No further questions.

<CROSS-EXAMINATION BY MR KRAJEWSKI [1.17PM]

PN339
MR KRAJEWSKI: Mr McKenzie, when you referred to the situation of parking at the Westpac Bank how many other AVOs were in the truck with you?---One.
PN340
And the issue regarding Mr Smith and other managers, were you aware of other managers in the vicinity of that particular location?---I was aware that there were managers in town. At the time of that delivery I wasn't aware if they were watching me or not.
PN341
Were you required or did you fill out any run sheets at the start of that particular day?---Yes.
PN342
What day would that have been?---I cannot recall what exact date that was. I do remember doing that - - -
PN343
THE SENIOR DEPUTY PRESIDENT: Just a moment. Unless there's some operational reason why you cannot turn it off, in which case you should tell me about it, otherwise if you wouldn't mind have it turned off or silent whilst giving your evidence. Does that create a difficulty for you, Mr McKenzie?---No. I'm turning it off right now, your Honour.
PN344
Yes, thank you.
PN345
MR KRAJEWSKI: In being provided with run sheets or a CSI of a morning did you complete those sheets at the end of the day or were they - - - ?---Yes, I did.
PN346
And during that particular period of 23 July to 6 August did you talk to any supervisor or any manager at the end of the day in relation to those documents?
---No, I did not.

**** SCOTT LEONARD MCKENZIE XXN MR KRAJEWSKI

PN347
Did you have any one on one discussions with Mr Smith on any of those occasions?---In regards to?
PN348
In regards to the run sheets and/or the CSI?---What, in performing the job different than normal?
PN349
Yes?---No, I did not.
PN350
Did you discuss with any other manager or any other supervisor the runs on those particular dates?---In what way do you mean that?
PN351
Well, you were issued with the run sheets?---I was issued with a run sheet, yes, and CSIs and I conducted the Westpac different to what the standard procedure that we normally do with that job on that particular day, which the date, I am not clear on. I don't have the diary or anything like that that I can recall on.
PN352
When you attend the Petrie Plaza locations and service a number of customers, would you, in other circumstances, park differently to the way that you parked on these occasions you've just referred to?---Normally we'd do in accordance to the standard practice that we had been doing beforehand.
PN353
Would there be an occasion where you would park other than that practice?
---Only if there was an extreme circumstance of some sort.
PN354
So there have been other occasions where you have parked differently than the norm?---Once, yes, when they were doing construction work at the club next door, instead of parking right out the front doors, we parked a little bit further back.
PN355
How long would it take you to do those runs?---That job or the whole run in general?
PN356
Firstly that run and then the whole job?---The run has been varied that much I can't answer that. The changes that have happened lately I couldn't even give you a ball park figure. Most of the time our runs average somewhere from six hours to 10 hours to 12 hours a day.
PN357
Did you still perform that job in the same time as what you would normally perform it?---I'd say it would have - - -

**** SCOTT LEONARD MCKENZIE XXN MR KRAJEWSKI

PN358
Sorry?---It would have taken longer than the normal standard practice, yes.
PN359
How much longer?---Three to five minutes, depending on what the
customer - what we were delivering and what we were clearing from the customer.
PN360
I have no further questions, your Honour.

<RE-EXAMINATION BY MR SELIG [1.22PM]

PN361
MR SELIG: Scott, it's Greg Selig again. I just want to take you back to the testimony you've just given in relation to the delivery you can recall calling at Westpac, do you recall that delivery again?---Yes, yes.
PN362
Your testimony today says that - just previously you said that you did that differently to the standard procedure, is that correct, that's your testimony today?
---Yes.
PN363
Can I just ask, was there any extreme circumstances that you referred to earlier that would have caused you to do that delivery at that particular time differently?
---On that one other occasion or - - -
PN364
No. On the day you were referring, that you can recall, is there extreme circumstances in place that caused you to do it differently?---No.
PN365
Thank you, nothing further.

<THE WITNESS WITHDREW [1.23PM]

PN366
THE SENIOR DEPUTY PRESIDENT: Any other evidence from the TWU?
PN367
MR BONCARDO: Nothing further, your Honour.
PN368
THE SENIOR DEPUTY PRESIDENT: All right. Any evidence that you want to call in reply, Mr Krajewski?
PN369
MR KRAJEWSKI: No, your Honour.
PN370
THE SENIOR DEPUTY PRESIDENT: All right. Now, do either of you want a short time now to get your thoughts together about what the issues are and I must say, from my point of view, I would be aided if at least the two of you might be able to agree on what's not in issue, and to the extent to which there are issues perhaps list them and so you can both tackle them in the same order, but without limiting you as to what the issues will be, I might be aided first by being addressed on the section 478(1)(d) point, namely on the evidence whether industrial action has been taken during the relevant period, the nature of that action and whether it falls within the definition of industrial action under the Act.
PN371
In that respect it seems to me that you might both be able to give some consideration as to whether it is agreed that to the extent to which there might have been industrial action it would have been only parking restrictions. There does not seem to me to have been any evidence before me that there has been a ban on overtime. I suppose in a way that's almost a concession the TWU might think that they are forced to make on the evidence.
PN372
MR SELIG: The TWU would concede that, your Honour.
PN373
THE SENIOR DEPUTY PRESIDENT: Yes. I think that's a proper concession on the evidence. So we're talking about the parking restrictions. Then in the event, I was persuaded that the evidence established that the parking restrictions were industrial action of the nature obviously addressed in the secret ballot order on which there was a vote and were taken in the requisite time, it would follow that the issue about the question of them being taken again next week
might - well, that might go the expected way. So the next question then is, I suppose, the ball is really principally back in your court, the terms of any order that would be pressed, either on the one hand if I'm not persuaded the evidence establishes parking restrictions, relevant industrial action has been taken, but I imagine then you press for the order, and if the evidence does establish that, well, then what the position of Chubb is and in relation to the order that is sought I will need to be addressed by both of you on the terms and the scope of it.
PN374
So it seems to me as if they're the - there are a list of things that I'll be needing you to address me on. So shall I adjourn for a quarter of an hour?

<SHORT ADJOURNMENT [1.26PM]
<RESUMED [2.20PM]

PN375
THE SENIOR DEPUTY PRESIDENT: I've had some discussions with the parties in the interim period and I'm aware that they themselves have had some discussions also. I indicated what my preliminary view was on the section 478 matter to them and I stressed that it was a preliminary view, about which it would be for each of them to persuade me it should not be my final view. We had some further discussions after that. We're now back on transcript and unless there's some agreement between the two of you I think we now proceed, do we not, to final submissions or, Mr Krajewski, if you have some other position perhaps this it the time to put it.
PN376
MR KRAJEWSKI: Thank you, your Honour. Your Honour, as you have summarised, the parties have taken the opportunity with the Commission's assistance to try to resolve this particular matter and whilst a little bit of progress has been made it hasn't been to the full satisfaction of either party. The company still presses for the order it sought in the first instance. However, in terms of our submissions there is not that much more for us to say except to probably summarise the evidence of Mr Smith, and that is to say that the evidence of Mr Smith was such evidence that in the view of the company that there was no industrial action which took place in that period of thirty days following, firstly the order from Senior Deputy President Hamberger for the secret ballot, and secondly even with the 30 day period following the result of the ballot.
PN377
Whilst evidence has been led by the TWU that a limited ban may have taken place in their view in a number of the plazas in the ACT, we would respectfully submit that on a previous occasion and in our respectful submission it doesn't matter what that reason was, that a similar action took place by road crew or armoured vehicle operators. So we would say that whilst on the one hand it is said in these proceedings that industrial action, or a form of industrial action did take place previously, on an earlier occasion a similar type of action took place but could not be considered to be industrial action. So we say there that that level of consistency needs to be established. We say that there is no industrial action taking place or has taken place in this period of time.
PN378
We would say that in relation to the CSI sheets and the run sheets that have been referred to in evidence that they were properly monitored by staff. They were delivered to and given to road crew for their consideration on each occasion. There was no deviation in our view in relation to the impact of the actions of any of those employees during the two week period that has been identified in exhibit Chubb 1. We say that when one looks at the definition of industrial dispute, one sees that reference is made to the manner in which that action was taken and we say that the impact of that action that was taken was insignificant in the scheme of things and so we say that consideration should be given seriously to that area.
PN379
We would conclude, your Honour, by saying that a strict procedure had in fact been put into place during that period of time, that there were managerial staff working in association with the road crew, particularly, to identify any deviations from the run sheets and from the CSIs and nowhere in that assessment which took place on a daily basis could it be seen that there was any deviation that would suggest to us that industrial action had taken place.
PN380
It is on that basis that we conclude, your Honour, and say that in this particular instance that action which is put to the Commission as having taken place then determined or were defined as a parking ban or industrial action, we would respectfully submit that that would not to be applied in this particular instance. If the Commission pleases.
PN381
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Krajewski. Mr Selig?
PN382
MR SELIG: Thank you, your Honour. Your Honour, may I start by putting on the record that the union gives a commitment to the Commission that in relation to overtime bans that were intended to take place as of Tuesday next the union undertakes that those bans will not take place and therefore should be removed from the relevant notices of the intention to take protected action. Moving on from that on that basis, your Honour, it's the union's position that the applicant is not entitled to seek the 496 orders on the basis proposed and that is on the basis that the action envisaged next week and sought next week is protected action within the meaning of the Act and therefore the Commission has no jurisdiction to make such an order.
PN383
Your Honour, we say that the protected action that is proposed is consistent with the protected action taken within the 30 day period referred to in the provisions of section 478. Section 420 defines industrial action in part 1(a) and 1(b) and we say that the parking bans that were undertaken within the 30 day period specified by Mr McKenzie satisfies the criteria of section 1(a) and 1(b). Your Honour, we say Mr McKenzie has provided direct evidence to the Commission today that he participated in industrial action in line with that proposed in the question and we say that the respondent, your Honour, has not put up any direct evidence to the contrary.
PN384
The TWU say that the respondent's position should carry no weight as far as evidence is concerned as Mr Smith did not have any direct knowledge of Mr McKenzie's industrial action at that time. We say that Mr Smith's evidence is hearsay and as I've alluded to earlier, Mr Smith provided no direct evidence to the contrary to combat Mr McKenzie's direct evidence. On that basis we say that our evidence should stand and should be accepted by the Commission and on that basis, your Honour, we say that the industrial action is protected as defined by the Act and we say that the Commission has no jurisdiction to make such an order sought.
PN385
Therefore we would ask that the Commission respectfully dismiss the application for 496 orders and that was the end of our submission, if it pleases.
PN386
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Krajewski, anything in reply?
PN387
MR KRAJEWSKI: Just two points, your Honour, if I might. Firstly, we reject the submission regarding hearsay. We say that it's clear from the evidence of Mr Smith that there had been regular discussions, he being the senior officer in charge of the process in Canberra at the time in direct conversations with both road crew employees as well as management staff in relation to the progress and the processes that were taking place over that two week period. So we reject totally any reference to hearsay arguments that have been put by the union. In relation to the submission that Mr Smith did not have any contact in that context, we say that he certainly did have contact. He had knowledge. He has been involved in the industry for many years and he knows quite clearly the involvement of road crew activities and the processes of the cash in transit industry.
PN388
So we say that the evidence of Mr Smith should be relied upon. It should be relied upon in the fullest. We press for the order and we respectfully submit, your Honour, that the Commission does grant the orders. If the Commission pleases.
PN389
THE SENIOR DEPUTY PRESIDENT: I think I'm in a position to give my decision immediately. This is an application for an order under section 496 of the Act. It seems that it was made shortly after and as a consequence of a notice of organization of employees or employees intending to take protected industrial action in short, a section 441 notice, and that was dated 8 October 2008. The notice was from the Transport Workers' Union to Chubb Security Services Limited and relevantly stated that the intended industrial action was to have two components. One was a work to rule on parking restrictions which would commence 6 am next Tuesday the 14th, and the other was a ban on overtime which was to commence at the same time.
PN390
The question has arisen as to whether in this case the evidence establishes that the action foreshadowed in that section 441 action would be protected action and accordingly action about which no section 496 order should be made. To put that in context the protected action ballot order issued by Senior Deputy President Hamberger on 3 July 2008 has been considered by me and I note in particular in relation to the question that was to be asked, addressed in paragraph 8 of that protected action ballot order, was whether in support of reaching a new collective agreement employees supported taking protected industrial action of a number of types of action or several categories of such action, and one was referred to as indefinite or periodic bans on overtime, and the other was relevantly referred to as a work to rule on parking restrictions.
PN391
The way the case has developed before me and in accordance with observations I made earlier in the case is if within the relevant period, namely the period referred to in section 478(1)(d) of the Act action of that type voted upon and subject to the secret ballot order, namely the bans on overtime or the work to rule on parking restrictions had already been commenced within the relevant period and now in accordance with the notice, that is 8 October, was to occur again tomorrow, it was unlikely it was appropriate that a section 496 order should issue. On the other hand, if such action had not commenced such an order, it would appear subject to jurisdictional prerequisites would be appropriate to be made. I heard the evidence of Mr Smith of the company, Mr McKenzie. Both gave evidence which I accept and it is of the nature that it does not need me to make a finding on inconsistencies or preferring one over the other. Nor do I accept any criticism that Mr Smith's evidence was hearsay. But on balance and looking at the evidence that is strictly relevant to whether or not there has been in the relevant period any industrial action, I accept Mr McKenzie's that he has said expressly in his evidence that he participated in the industrial action of the nature of working to rule on parking restrictions during the relevant period.
PN392
It seems to me therefore no section 496 order should issue which relates to that action that is foreshadowed to commence again next week. In relation to the action foreshadowed to commence next week concerning overtime, the TWU has in my opinion quite properly made a concession that a commitment and an undertaking that that action would not take place. I say that is an appropriate concession because it is clear on the evidence that no such action had commenced within the relevant period. So therefore it was likely that if such action was to be pending, probable or happening that a section 496 could have issued.
PN393
But in any event, in light of the position taken by the TWU I am not persuaded that industrial action in the nature of an indefinite or periodic ban on overtime is happening, threatened, impending or probable or being organised. So therefore a section 496 order will not issue. They are my reasons for decision in declining to issue the order sought. The Commission adjourns.

<ADJOURNED INDEFINITELY [2.43PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JASON DOUGLAS SMITH, SWORN PN114
EXAMINATION-IN-CHIEF BY MR KRAJEWSKI PN114
EXHIBIT #CHUBB 1 DOCUMENT DATED 17/07/08 PN146
EXHIBIT #CHUBB 2 ONE-PAGE TYPEWRITTEN DOCUMENT, UNDATED, POSSIBLY PREPARED BY MR DAVID LONGIN PN206
EXHIBIT #CHUBB 3 TWO-PAGE EXTRACT FROM MR SMITH’S “BIG BOOK” PN250
EXHIBIT #CHUBB 4 COPY OF NOTICE OF INTENT TO TAKE PROTECTED ACTION DATED 31/07/08 PN274
THE WITNESS WITHDREW PN306
SCOTT LEONARD MCKENZIE, SWORN PN320
EXAMINATION-IN-CHIEF BY MR SELIG PN320
CROSS-EXAMINATION BY MR KRAJEWSKI PN338
RE-EXAMINATION BY MR SELIG PN360
THE WITNESS WITHDREW PN365