C2008/2061, Transcript of Proceedings [2008] AIRCTrans 681 (29 October 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19208-2

DEPUTY PRESIDENT MCCARTHY

C2008/2061

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

CBI Constructors Pty Ltd
and
Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch The Australian Workers' Union - West Australia Branch The Australian Workers' Union - West Australia Branch Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union-Western Australian Branch Construction, Forestry, Mining and Energy Union-Western Australian Branch
(C2008/2061)





Perth

11.08AM, TUESDAY, 14 OCTOBER 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN PERTH

PN1

MR J BLACKBURN: I seek leave to appear on behalf of the applicant with Mr S FOY.

PN2

MR L EDMUNDS: I seek leave to appear on behalf of the AMWU, sir.

PN3

MR J NICHOLAS: On behalf of the CFMEU.

PN4

THE DEPUTY PRESIDENT: Yes, leave is granted to those who require it. This is an application lodged by - I'll call the applicant CBI, asserting that industrial action is happening or threatened, pending or probable and it was lodged yesterday afternoon and allocated to me this morning and as a consequence, I've listed it as soon as I practicably can. I'd alert the parties that I do have other matters listed for most of this afternoon so if they can expedite whatever they wish to put or any evidence they wish to call, I'd appreciate it. Thank you, Mr Blackburn.

PN5

MR BLACKBURN: Yes, thank you. As the grounds for the application indicate, the applicant, CBI, have been engaged by Foster Wheeler to construct various parts of the phase 5 expansion project. Some time ago, CBI's scope of work was expanded to include additional packages known as the stabiliser 6 and vapour return line packages and these packages are continuing even though the main part of the phase 5 project has been declared practically complete.

PN6

CBI has retained approximately 245 employees on site to complete the additional works but for some time there has been disagreement with the CFMEU and AMWU who assert that the additional works are not part of the phase 5 project and therefore that what ought to have occurred is that the employees ought to have been formally terminated, have their redundancy entitlements and other termination payments paid out and then re-engaged.

PN7

The CFMEU and AMWU have made demands to that effect and you will hear evidence that at a meeting two weeks ago, that AMWU organiser John Windis, accompanied by Brad Upton, made threats to the effect that there would be unlawful strike action if their demands in this regard were not met.

PN8

Yesterday morning, following a meeting with workers which was insisted upon by Mr Upton and addressed by Mr Upton, Mr Upton, accompanied by Mr Robert Brown and Mr Mark Johnson, both of whom are delegates, met with CBI officials and indicated to them that unless CBI by the end of the day agreed, that is unless there was agreement by the end of the day for CBI to terminate the employees and pay out the entitlements and then re-engage them, the workers would go on strike commencing with a one week stoppage starting today, that they would then return for one day to continue negotiations and then following that, there would be a further one week stoppage if their demands were still not met.

PN9

The threat was made by Mr Upton and it was assented to by Mr Brown and Mr Johnson. They didn't seek to disassociate themselves from the threat that Mr Upton, the CFMEU organiser, had made and as I said, this followed a threat two weeks earlier by an AMWU organiser in the company of Mr Upton to the effect that unlawful industrial would be taken if this issue was not resolved.

PN10

That was yesterday morning. The employees worked yesterday. There was no resolution by the end of the day and this morning, true to Mr Upton's word, the employees have commenced strike action, they have not attended for work. There are no bargaining periods in place, the threatened action - well, it's now no longer threatened action, it's the action that is occurring is not protected action.

PN11

The action is both occurring and further action is threatened because the threat is that the action will continue for a week, the workers will then return to continue negotiations and then there will be further action following that if CBI have not satisfied the union's demands. I have provided to the Commission and the parties a draft order. The order is in substantially the same terms as a number of recent orders issued by both yourself, your Honour, and Commissioner Williams.

PN12

The order applies to the AMWU and the CFMEU and it does so on two bases. One is the actions of their respective organisers and delegates places the AMWU and CFMEU squarely in the frame but further, as is indicated by decisions such as the Full Bench decision and the Federal Court decision in the TWU case, it's not necessary to make a finding that the unions have actually organised industrial action or participated in industrial action in order to make orders against them.

PN13

As long as you make a finding that industrial action has been threatened or is being engaged in then it's open to the Commission to make any orders that will bring about a cessation of that action and that will put an end to the organising of the action. We go further in this case and say in any event that the evidence will demonstrate that the AMWU and the CFMEU, through their organisers and delegates, are squarely involved in this industrial action.

PN14

The order also seeks to bind Mr Upton who, as the evidence will show, is clearly a key player, Mr Robert Brown, the CFMEU delegate employed by CBI, Mr Mark Johnson - there's no T in his name so I seek to amend the orders to that effect - who is the AMWU delegate. Now, I'm instructed that Mr Johnson tendered his resignation this morning but that CBI requires him to work out his notice which is 38 hours.

PN15

Then the order seeks to apply to employees of the company who are members of one or other of the unions and engaged to work on the stabiliser 6 and vapour return line packages. What we say about that is that the unions, and the evidence will show this, are active in the workplace, they clearly represent the workforce generally and in relation to this particular dispute and I'm instructed there was a meeting this morning between Mr Upton and the employees where the decision was taken not to attend work so we say that service on the unions is sufficient for the purpose of bringing this matter to the attention of the employees.

PN16

Other than that, the order is in fairly non-controversial terms with the usual provisions in relation to stopping and not organising industrial action and service of the order. There is one provision at the bottom of paragraph 3, the definition of industrial action in the case of the unions, Mr Upton, Mr Brown and Mr Johnson has been clearly expressed to include being directly or indirectly a party to or concerned in industrial action by employees and that reflects the language in section 4(5) of the Workplace Relations Act which provides that a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.

PN17

So essentially we seek orders that the employees immediately stop and not engage in industrial action and that the unions immediately stop organising and engaging in and not organise or engage in industrial action, similarly Mr Upton, Mr Brown and Mr Johnson immediately stop organising and engaging and not organise and engage in industrial action.

PN18

Your Honour, those are my submissions by way of an opening and subject to any comments your Honour may have, I have two witnesses to call and they will be Kelly Luskan and Peter Stuurstraat who are representatives of CBI.

PN19

THE DEPUTY PRESIDENT: Yes, well, perhaps if we can do that, Mr Blackburn, I'll hear from Mr Edmonds and Mr Nicholas if they have any opening submissions to make.

PN20

MR EDMONDS: Sir, there were some issues raised by Mr Blackburn in his opening that weren't foreshadowed in the application that perhaps it might be appropriate if I was to have an opportunity to get some instructions on them, in particular alleged threats made by Mr Windis at the meeting approximately two weeks ago. If they had have been foreshadowed in the application itself, I would have had an opportunity to take some instructions on them but I haven't. Perhaps it might be useful though to hear the evidence and then perhaps I can take some instructions in relation to those particular issues.

PN21

At this point, sir, I simply represent the AMWU. I don't know if Mr Johnson has been served with a copy of the application and I don't know if the members of the union have been served with a copy of the application or whoever was concerned have been served with a copy of the application.

PN22

Of course the Commission is well aware of the decision of the Full Bench and the Federal Court in the TWU case. It dealt with the issue of service and the issue of natural justice in relation to the service of applications upon individuals. We would simply point out that it's dangerous for the Commission to assume that service upon the union is adequate service upon these individuals where quite serious penalties apply for breaches of section 496 applications. So perhaps I can make some further submissions about that if the Commission is inclined to issue an order in this matter.

PN23

In any event, sir, the AMWU denies actually being a party to or in any way involved in the industrial action that is alleged to be occurring on the ..... so, sir, perhaps I'll leave it there for the moment and I might be able to expand upon those submissions when we've heard some evidence.

PN24

THE DEPUTY PRESIDENT: Are you asserting that industrial action is not occurring?

PN25

MR EDMONDS: If I can have a brief moment. It's my understanding, sir, that the workers are not at work today but the union denies having any part of that whatsoever.

PN26

THE DEPUTY PRESIDENT: Yes. Mr Nicholas.

PN27

MR NICHOLAS: Thank you, your Honour. The CFMEU's position mirrors that of the AMWU in large respect. Certainly we also have concerns in relation to service of this application. I'm here to represent the CFMEU and Mr Upton and I can confirm that Mr Upton is certainly aware of proceedings today and is available to give evidence.

PN28

In relation to service or the natural justice elements, the evidence that Mr Upton will give will show that in fact if any employees are not at work today, it's against the strong advice of the CFMEU so in that respect, the ability for the Commission to make a finding that the CFMEU is adequately representing all those employees who might be taking industrial action today is limited in that respect. Those employees are, we say, acting against our advice.

PN29

I suppose the other specific element in relation to this circumstance is the difficulty with communicating with our members up there. There's certainly been two meetings that members and non-members have attended in the last two mornings but other than those type of mass meetings, it's very difficult to communicate with members so we would say that service on the union should not be taken to adequately satisfy the natural justice elements that need to be addressed in this application.

PN30

I suppose the other element of the case is the CFMEU's involvement. I've mentioned that members are taking action against the CFMEU's advice. We'd say, just as a preliminary point, that no orders should issue against the CFMEU or Mr Upton. Whatever has happened over the last two days, and I'll make more detailed submissions later if that's required, but as a preliminary we would say that what has occurred wouldn't be enough to get over what's required to show that the CFMEU is in fact taking part, being party to or being involved in organising or taking industrial action.

PN31

THE DEPUTY PRESIDENT: Implied in what you're saying, Mr Nicholas, is industrial action is occurring.

PN32

MR NICHOLAS: It appears that employees aren't at work this morning, on my instructions.

PN33

THE DEPUTY PRESIDENT: Yes, all right. Mr Blackburn.

PN34

MR BLACKBURN: Thank your Honour. In relation to the comments as to service, we will address you on the decision of the Full Bench and the Full Court. The Full Court did caution against assuming that service on representative organisations was adequate service on employees but also make the point which was then followed up and expanded on by the Full Bench in the HSAU case that it would be a question of fact in each case as to whether a union was actually representative of the workforce.

PN35

Now, the efforts of both my friends this morning to stand up and say "We only represent our particular unions, we don't represent the workers, they're not here" are of course exactly what occurred in some of the cases that preceded the Full Court decision in cases such as Alison and Tenix, for example, where the same unions sought to deny that they were representing the workers at all and the Full Bench found in those cases, and I'll hand up copies of those in due course, that it was not open to the unions to deny their representative character.

PN36

But more recently, we do have the Full Court decision and the nub of that decision and the subsequent HSUA decision is that it's a question of fact as to whether the unions are representative of their workers such as to be able to represent them and so that service on the unions may be regarded as adequate service on the employees.

PN37

The other point I would make in relation to that is that the Commission also has an ability to issue interim orders under section 496(6) if it forms a view that the matter cannot be determined in the 48 hour period after the application is made and if, for example, your Honour was to come to the view that the employees had to be served personally then it would be open to you to make an interim order while that service was effected on the individual employees and then we could all come back here after that.

PN38

The course of action we propose though is that an order can be made against the employees given the presence of the unions here and given their involvement both at the site and in the dispute to date. So on that basis, your Honour, I propose to call the applicant's first witness, Ms Kelly Luskan, and there's a phone number.

<KELLY LUSKAN, AFFIRMED [11.28AM]
<EXAMINATION-IN-CHIEF BY MR BLACKBURN [11.28AM]
THE FOLLOWING EVIDENCE WAS CONDUCTED BY TELEPHONE CONFERENCE

PN39

MR BLACKBURN: Ms Luskan, what is your occupation?---I work in the - - -

PN40

THE DEPUTY PRESIDENT: Just a moment.

PN41

Ms Luskan, I should have said, I'm Deputy President McCarthy. You'll be asked questions by Mr Blackburn representing CBI and then you'll be open to cross-examination by Mr Edmunds and Mr Nicholas. They will identify themselves in due course but Mr Blackburn will proceed with asking you questions now. If you can't hear anyone who makes a comment or if you can't hear me or Mr Blackburn, can you please ensure that you alert me to that?
---Okay, and you can hear us okay, or you can hear me?

PN42

Yes, and is there anyone else in the room?---Yes, I've got Jose Macano, who is our project manager, Stuart Mackery who is our IR manager and Peter Stuurstraat who is our project superintendent.

PN43

Mr Blackburn, are any of those individuals going to give evidence?

PN44

MR BLACKBURN: Yes, Mr Stuurstraat will, your Honour.

PN45

THE DEPUTY PRESIDENT: Mr Stuurstraat, can you exclude yourself from the room for the time being, you'll be alerted to when you're required to give evidence. Ms Luskan, can you ensure that you do not discuss your evidence with any other witnesses and likewise any other witnesses who will be giving evidence. So please excuse yourself from the room for the time being.

PN46

MR BLACKBURN: Thank your Honour.

PN47

THE DEPUTY PRESIDENT: Sorry, Mr Nicholas and Mr Edmunds, are you intending to call any evidence from people who will be in the room who should be excluded?

PN48

MR EDMONDS: Not in this room, no.

PN49

THE WITNESS: All right, Peter has left the room.

PN50

MR BLACKBURN: Ms Luskan, it's John Blackburn here. Can you tell the Commission what your occupation is, please?---Okay, I work in the administration department on the phase 5 project and in the role effectively as the admin manager and also assisting in the HR department.

**** KELLY LUSKAN XN MR BLACKBURN
PN51

In that role, what industrial relations functions, if any, do you perform?---As a general rule, I only assist in getting site access forms put through for the visiting members and if there's any problems on site in regards to R&Rs, anything like that, more on the administration side, I assist with that.

PN52

Now, are you aware of a contract which CBI has with Foster Wheeler --In regards to the project labour agreement?

PN53

Yes?---Yes, I am.

PN54

Can you tell the Commission what work CBI is doing at the moment?---Currently, we're finishing off the phase 5 of the trains, at commissioning stage and we're working on the stabiliser 6 project and the vapour return line project.

PN55

Now, is there any work being performed today?---There's some work being performed on the phase 5 project with the commissioning team. As far as stabiliser 6 and vapour return line, I don't know.

PN56

How many employees does CBI have on the stabiliser 6 and vapour return line work?---Okay, we've currently got 247 crew members and out of that, we've got about 11 still working on the commissioning team for phase 5 and the balance is between stabiliser 6 and the vapour return line.

PN57

Now, do you know what industrial instruments you have in place to cover employees at the .....?---No, I don't understand your question, sorry.

PN58

Are there any enterprise bargaining agreements in place?---No, they work under the project labour agreement.

PN59

And who is the project labour agreement with?---With the same - with the CFMEU and the AMWU, is that what you're referring to?

PN60

I'm asking you. Is that what you're referring to when you say project labour agreement?---Yep, yep.

PN61

Is that a registered agreement, do you know?---Yes, it is.

PN62

Registered in the Australian Industrial Relations Commission?---Yes.

PN63

And there's one for the AMWU?---Yes.

PN64

And another one for the CFMEU?---Yes.

PN65

THE DEPUTY PRESIDENT: Are you sure it's registered here, Mr Blackburn?

PN66

MR BLACKBURN: Yes, your Honour. No, sorry, I withdraw that. It would be registered with the Workplace Authority, yes. I'll tender those in due course, your Honour, not that they're particularly critical.

**** KELLY LUSKAN XN MR BLACKBURN
PN67

Ms Luskan, are you aware of whether there's any bargaining period in place at the moment between your employees and CBI or between the unions and CBI?---I'm not aware of any, no.

PN68

Now, are you aware of the extent to which, if at all, either the CFMEU or AMWU are involved in the workplace?---I'm aware of them when they come to visit. As to how often they come, it's - it's random. Like sometimes they can come anything to two to three times a week and then you might not see them on site for a couple of weeks.

PN69

If we can take it union by union, the AMWU, do they have particular organisers allocated to your workforce?---Recently my involvement has only been with John Windis who has come on site from the AMWU.

PN70

How often does he come on site?---Since I have been back from holidays, which has been from end of July, one time definitely because I remember him here. Prior to that, I couldn't tell you exactly but he has been on site prior to that because I've done his site visitor passes for him.

PN71

Does the AMWU have delegates?---We have one delegate that I'm aware of, or one that's dependant upon the site which is Mark Johnson.

PN72

And as far as the CFMEU is concerned, who is the CFMEU organisers that you - - -?---Okay, Brad Upton.

PN73

And how often is he on site?---Once again, myself personally, I've had involvement with him a couple of times on site recently. Prior to that, I have noticed his name has been on site access forms that I have put through.

PN74

When you say recently, what do you mean by that?---In the last couple of weeks.

PN75

And the CFMEU have a delegate, do they?---Yes, they do, Robert Brown.

PN76

So they each have one delegate, do they?---Yes, currently, yes.

PN77

Now, this particular dispute that has given rise to the industrial action today - - -

PN78

MR EDMONDS: Excuse me, sir, that's leading the witness. The witness was asked a question whether she was aware of any industrial action and she said no.

**** KELLY LUSKAN XN MR BLACKBURN
PN79

MR BLACKBURN: Whether she was aware of any what, I'm sorry?

PN80

THE DEPUTY PRESIDENT: Rephrase the question if you can, Mr Blackburn.

PN81

MR BLACKBURN: Yes, your Honour.

PN82

Ms Luskan, are you aware of a disagreement or dispute between the unions and CBI in relation to the stabiliser 6 and vapour return line packages?---I've personally been involved in a conversation with both Brad Upton and John Windis on 1 October when they met in my office where they discussed their dissatisfaction with - with - that CBI wouldn't recognise that phase 5 had finished and the stabiliser 6 and vapour return line were a separate project and then yesterday morning when they asked us to meet them at the front gate, they said exactly - well, not they, sorry, Brad Upton said exactly the same thing.

PN83

If I can take you back to the meeting I think on 1 October - - - ?---Yep.

PN84

- - - with John Windis and Brad Upton, can you explain what the issue is and what demands, if any, were made or what was said by Mr Windis and Mr Upton?
---Okay, they raised the same point, that Woodside - we'd recently moved site access - sorry, access to our site through the main ..... gate and whilst they were trying to get on site that morning, Woodside made it very plain to them that phase 5 was now complete and they were working on the stabiliser 6 - the stabiliser 6 and vapour return line and they raised that with us and said "Even Woodside are saying it's complete. Why won't you recognise it? The boys should be full paid out any outstanding money and re-employed." They threatened - John Windis at the time threatened me with action if that's what it required for us to recognise that the project had finished because Woodside were advertising .....

PN85

Do you recall what Windis said, what his words were?---I've written in my notes he's threatened legal action, that's what I've written down so - - -

PN86

And when he made that threat, what did Mr Upton say or do?---I can't remember what Brad said. He was involved in the conversation but I haven't written down word for word what he said.

PN87

So that was on 1 October. Was that the first time this issue had arisen?---With me, yes.

**** KELLY LUSKAN XN MR BLACKBURN
PN88

Have you been involved in further discussions between that meeting and yesterday?---No.

PN89

Now, yesterday morning you were involved in a meeting. Can you tell the Commission how that came about?---Yes, yesterday morning after I got on the site, I got a phone call from Robert Brown asking me to bring Jose Macano and Peter Stuurstraat - myself and the management to come down and meet them at the gate. Brad Upton was down there, he couldn't get entry on the site because there was no right of entry put in so he asked if we would meet them down at the gates. So I went down with Jose and Pete to meet them. When we got down there, we requested a meeting room and there wasn't one available so we went outside the main area and Brad told us that he'd met with the guys this morning and they had voted that unless we could go back to them by close of business yesterday afternoon and advise them that all their accruals would be paid out at a reduced tax rate then they would go on strike for one week, come back for one day and then go out for one - for another one week block.

PN90

Was anything else said by them?---By Brad? They - not that I can remember exactly but there was a discussion held in regards to they had a piece of paper there - sorry, Robert Brown had a piece of paper from the local - from our local newspaper demonstrating to us that Woodside were advertising that the phase 5 project was over so why wouldn't we recognise it. Mark Johnson wasn't holding anything. He, at the end of the conversation, said that if we have - we had to close of business to get back with an - with an answer otherwise the guys wouldn't go out the gates. I just reminded them that we had a formal process to go through and that we would come back up here and advise promptly and accordingly and that was really all that was said.

PN91

So were you given any details of the discussion at the union meeting? Did they tell you anything about how the vote was conducted or who spoke or anything?
---No, they didn't. They just said that the guys had agreed that if we didn't come to the party that they would - would walk today.

PN92

And any of those present, did Mr Upton or Mr Johnson or Mr Brown say that they disagreed with the action or had spoken against it?---No, they didn't.

PN93

Yes, nothing further, thank you, Ms Luskan. If you can just stay there and my friends will ask some questions.

**** KELLY LUSKAN XN MR BLACKBURN
PN94

MR EDMONDS: I've got no questions for this witness, sir.

PN95

THE DEPUTY PRESIDENT: Yes, thank you, Mr Edmonds. Mr Nicholas? If you can identify yourself to Ms Luskan, thank you.

<CROSS-EXAMINATION BY MR NICHOLAS [11.42AM]

PN96

MR NICHOLAS: Ms Luskan, it's Jack Nicholas here on behalf of the CFMEU. In your evidence you mentioned a conversation with Brad Upton and you said that he didn't say anything about what happened at the meeting but when he relayed what had occurred at the meeting, it's true, isn't it, that all he said was that it was agreed at the meeting that certain action would occur, it wasn't actually a threat that he was making himself, was it?---He said that the guys - if we didn't agree to what they wanted, the guys would go on strike for one week, come back for one day and then take another week off.

PN97

And he was reporting back just what had occurred at that meeting, he wasn't saying it was a threat of the CFMEU or from him?---I wasn't at the meeting so I don't know what occurred there so all I can say is what he said to me and that is that they had a meeting and it was voted and agreed upon that if we didn't do as I've already said then they would go on strike.

**** KELLY LUSKAN XXN MR NICHOLAS
PN98

Thank you, your Honour, no further questions.

PN99

THE DEPUTY PRESIDENT: Mr Blackburn?

PN100

MR BLACKBURN: Nothing further, thank you, your Honour.

<THE WITNESS WITHDREW [11.44AM]
<PETER STUURSTRAAT, AFFIRMED [11.45AM]
<EXAMINATION-IN-CHIEF BY MR BLACKBURN [11.45AM]
THE FOLLOWING EVIDENCE WAS CONDUCTED BY TELEPHONE CONFERENCE

PN101

MR BLACKBURN: Mr Stuurstraat, it's John Blackburn here. I'll ask you some questions first and then my friends representing the CFMEU and the AMWU may ask you questions and they will identify themselves at that time?---Okay.

PN102

Now, can I ask you what your position is with CBI?---I'm working as the construction manager for CBI.

PN103

Do you have any industrial relations functions as part of that role?---I - I'm designated to escort the union delegates as they come to site and also liaise with - with the unions on the issues as they - as they arise.

PN104

Now, until recently it was Mr Mackery that did much of the liaising with unions, wasn't it?---Yes, I - basically just in the initial stages, if there's anything further that needs to be sorted definitely goes higher than myself.

PN105

CBI, we've heard, has a contract with Foster Wheeler to perform certain work and that includes work on the stabiliser 6 and vapour return line packages?---Correct.

PN106

Is any work being performed on those two packages today?---Today? Actual work, no.

PN107

How many workers roughly should be working on those two packages today?
---Total numbers is around 200-odd. Off the top of my head, just actually shuffling people around on that at the moment, about 200 or over 200.

PN108

Now, you've been aware of an issue - the issue that has lead to the current dispute, how long have you been aware of that issue for?---I'm - - -

**** PETER STUURSTRAAT XN MR BLACKBURN
PN109

MR EDMONDS: Sir, if Mr Blackburn could endeavour not to lead the witness through the evidence, that would be great.

PN110

MR BLACKBURN: Well, I mean, if my friend wants to deny the existence of an issue.

PN111

THE DEPUTY PRESIDENT: Yes, proceed, Mr Blackburn.

PN112

MR BLACKBURN: Sorry, Mr Stuurstraat, how long have you been aware of the current issue for?---I've been on the site since 29 September and during that time, I've heard a few comments of "Why don't CBI pay us out?" and so forth. The - the level of the issue I didn't know how high it was but essentially there was a few queries now and then given towards me since I've been on the site.

PN113

Prior to yesterday morning, were you involved in any meetings with the unions in relation to the issue?---Not directly, no. I was waiting outside while the unions spoke with their members one day when they came to site and apart from that, no actual real discussions other than yesterday.

PN114

Now, yesterday morning you attended a meeting with Mr Upton and some others. Can you tell the Commission what occurred before the meeting and how you came to be called to that meeting and what then happened? Perhaps just go through the events of yesterday morning if you can starting with before the meeting?---Before the meeting, with regards to when the crew were outside the gate or just during the day?

PN115

Yes, let's start with that. You turned up for work in the morning?---Yes, I turned up to work in the morning and was asked to - I was approached by the guards - by the security that a meeting was being assembled at the car park and that they - as far as they were concerned, it was not a meeting that was - had authority to proceed.

PN116

So what did you then do?---I then went and spoke with the union delegate Brad Upton and informed him that it was my understanding that this meeting was not to proceed, that it hadn't been given an approval at this stage. His response at that stage was he was going to have the meeting regardless and he wishes to address his members.

PN117

Those were his words, were they?---Essentially, yes.

**** PETER STUURSTRAAT XN MR BLACKBURN
PN118

After that, you found out that the meeting had been authorised, is that correct?
---Following a phone call with a - the project manager from the - Foster Wheeler, he said that the approval had been given for the meeting to proceed and that that was his understanding.

PN119

So did you see Mr Brown or Mr Johnson at that time?---I saw Mr Brown and - definitely saw Mr Brown and I think Mr Johnson was there but I can't confirm at that time.

PN120

So what then happened? Did you see the meeting go ahead or did you leave or - - -?---The meeting went ahead. The meeting had started prior to the phone call and after the phone call, it continued anyway. I had mentioned to them that the - I had received the phone call informing me that it was to proceed or allowed to proceed.

PN121

Did you see whether anyone was addressing the meeting?---At that stage when I spoke to them, Brad Upton was addressing the meeting.

PN122

The employees returned to work before the - they attended work at the usual starting time?---They did. They worked through the gate prior to 6.30.

PN123

And then what happened that involved you?---The next involvement was I was - I had a phone call to pick up Kelly Luskan and Jose Macano and to attend to a meeting with Brad Upton and Mark and Brownie at the front gate.

PN124

And you went to the meeting and what happened then, what was said?---At the meeting, essentially we were informed by Brad Upton that the members had voted to withdraw their work after the day's activities if it wasn't agreed to pay the crew out.

PN125

Was anything else said by Upton or Johnson or - - - ?---This was agreed and reinforced by both Brownie and Mark and the comment was that they would have a week off and then return for a day and if it's not resolved, they'll have another week off. We also at that stage told them that this wasn't the correct process to be going through and there's a formal way that this should be done and - and a number of occasions I've mentioned that we shouldn't be putting anybody in a situation where they need lose money over it.

PN126

And what was the response to that?---The response was that the unions always had to lose money for the members to gain some benefit.

**** PETER STUURSTRAAT XN MR BLACKBURN
PN127

Who said that?---That's a comment that Brownie has said to me a number of times.

PN128

Did he say it yesterday?---He said it to me yesterday at another meeting and when I was issuing the - the application .....

PN129

Before we go there, what did the union representatives say at the meeting yesterday morning when you said to them "This isn't the correct way to go about it"?---Essentially the comment was - when we said that it's not the correct way to go, "This is - this is your - consider this your notice."

PN130

Now, did you then have another meeting with any of those gentlemen? So that was yesterday morning?---That was the end of that meeting in the morning and then in the afternoon with regards to issues, those representatives with a - the application form that had been put in to the Commission and I passed one to Bob Brown when he was still on site and I was also asked for - Mark had actually ..... leave without pay form apparently to ..... camp that night and I met him there and gave him the application form also.

PN131

So when you served the application form on them, did they say anything to you about the industrial action? Was there any discussion?---The response was "I knew that this was coming", this is when - when I gave it to Brownie, "I knew that this was coming and I disregard this notice and we'll take whatever action we deem necessary."

PN132

Did Mr Johnson say anything?---When I handed it to Mr Johnson, essentially it was referred to as a load of rubbish and that - all we were saying is "No" and "This isn't the way we should be doing this" and again I just reaffirmed to them that there's no reason for anyone to lose one cent over this and there's a due process that needs to be followed.

PN133

Now, that was yesterday when you served the application on them?---Yep.

PN134

Have you had any discussions with them today?---Yeah, this morning I went to the camp to see if the crew was going to be coming to site and I saw them in the - in the ..... there was Brad Upton and Brownie and Mark and John, the AMWU representative.

PN135

The AMWU organiser or - - - ?---Organiser, yep. His name eludes me at the second.

**** PETER STUURSTRAAT XN MR BLACKBURN
PN136

Is it Windis?---That's - that's the man, yep.

PN137

So Mr Windis, Mr Upton, Mr Brown and Mr Johnson were all there together, were they?---Yeah, and I just mentioned to them what's happening and they said "Well, you know what's happening" and the point was very quickly made to me that they had addressed the meeting with the members and that they'd recommended the members return to work and that there was a - a vote where it was unanimous that they didn't intend to return to work.

PN138

What meeting were they referring to?---The meeting that they had conducted this morning, the meeting from about 5.30 until before I'd got there .....

PN139

So they had conducted a meeting this morning?---Yes.

PN140

And they said that they had recommended a return to work at the meeting this morning?---That's what they said.

PN141

Was anything further said by them?---Basically again reiterated really no-one's got to lose money over this and if they'd get back to work and ..... we should return - we should pay them out and basically there had been some to-ing and
fro-ing as far as that.

PN142

The employees, which camps do they reside at?---This is all at the Bay Village camp.

PN143

And do they reside at any other camps, do you know?---No, just at the Bay Village.

PN144

All the workforce reside to the Bay Village camp is it?---Other than the local employees. We've got local employees as well.

PN145

Do you know roughly the breakdown between the Bay Village employees and the local employees?---Sorry, no, I don't know that off the top of my head. We have that information but no, I don't know it.

PN146

Now, for the last couple of months I think - or how long have you been a person who has been responsible for liaising with the unions?---It would be about ..... this year on 29 September, I'd been working on the site essentially two and a half weeks. I've had dealings with the majority of these people over the past number of years in various roles and previously just .....

**** PETER STUURSTRAAT XN MR BLACKBURN
PN147

Thank you, Mr Stuurstraat.

PN148

MR EDMONDS: Sir, I've got no questions of this witness.

PN149

THE DEPUTY PRESIDENT: Yes. Mr Nicholas?

PN150

MR NICHOLAS: No questions, your Honour.

<THE WITNESS WITHDREW [12.01PM]

PN151

THE DEPUTY PRESIDENT: Yes, Mr Blackburn, is that the evidence?

PN152

MR BLACKBURN: It is, your Honour. I'll hand up - - -

PN153

THE DEPUTY PRESIDENT: For those on the telephone, we'll now conclude that telephone call.

PN154

MR BLACKBURN: I'll hand up, for completeness, extracts from both of the agreements however whether - yes, we don't rely on the agreements and your Honour is correct, they are registered with the Workplace Authority and I'll hand up an extract from the Workplace Authority website that confirms that. So we don't rely on the agreements and the orders are not framed in terms of the agreements.

PN155

MR EDMONDS: Sir, for the sake of completeness, if we could just say that we don't necessarily agree that those agreements apply to the work that's being undertaken on the stabiliser 6 and vapour return line packages. Of course, it's no longer necessary for an agreement to apply to the work. More it's just a matter simply that the work be - - -

PN156

THE DEPUTY PRESIDENT: Well, if there is industrial action and it's unprotected action ..... the issue.

PN157

MR EDMONDS: I'm just making it clear, sir, for the purposes of this hearing that we don't in any way concede that those agreements apply to the work.

PN158

MR BLACKBURN: The reason I don't rely on it, your Honour, is because I don't want to raise issues that are not necessary to be dealt with. So, your Honour, that is the evidence of the applicant.

PN159

THE DEPUTY PRESIDENT: Yes, Mr Edmonds, Mr Nicholas, would you want a short break?

PN160

MR EDMONDS: Yes, sir, if we could have approximately five to ten minutes just to - - -

PN161

THE DEPUTY PRESIDENT: Yes, we'll attempt to reconvene at 12.15.

<SHORT ADJOURNMENT [12.03PM]
<RESUMED [12.20PM]

PN162

THE DEPUTY PRESIDENT: Yes, Mr Edmonds?

PN163

MR EDMONDS: Yes, sir. We don't intend to call any evidence in this matter, sir.

PN164

THE DEPUTY PRESIDENT: Yes. Mr Nicholas?

PN165

MR NICHOLAS: Your Honour, we're not going to call any evidence either.

PN166

THE DEPUTY PRESIDENT: Mr Nicholas, there was lodged in the registry a witness statement.

PN167

MR NICHOLAS: We're not intending to rely on that.

PN168

THE DEPUTY PRESIDENT: You're not relying on that or wish that to be used in any way.

PN169

MR NICHOLAS: We won't be referring to that at all.

PN170

THE DEPUTY PRESIDENT: Yes. Thank you. Yes. Well, neither Mr Edmonds or Mr Nicholas. Do you wish to make any submissions?

PN171

MR EDMONDS: Yes, sir, I do, sir. Sir, we concede, sir, that it may be possible for the Commission to conclude that industrial action may be occurring on the site in question and in those circumstances the Commission is possibly inclined to issue an order in this particular matter. So, sir, perhaps we can address you on the nature of that particular order and the parties who are sought to be bound to that order. The draft order that we've received from the applicant in this matter seeks to have orders applying to and binding upon the AMWU, the CFMEU, upon Mr Brad Upton, upon a Mr Robert Brown, a Mr Mark Johnston and employees of the company, that is of CBI, who are members of the AMW and CFMEU and engaged to work on ..… and the other package.

PN172

We would say, sir, in these circumstances that it's certainly not appropriate to issue orders against the AMWU in these circumstances and it is not appropriate to issue orders against a Mr Johnson who is the AMW delegate in question. The evidence that was put before you, sir, by Kelly Luskan was that was that she didn't know if there was work being performed on the stabilizer6 package today. That there is no enterprise bargain agreement in place and she was not aware of any bargaining period in place. She referred to, as far as the involvement with the AMWU and its delegate, she is aware that there is a Mr Johnson who words on the site and that he is an AMWU delegate.

PN173

She referred to the meeting with the AMWU organiser, Mr John Windis on 1 October 2008 at which Mr Windis threatened legal action against CBI Constructors, if CBI did not pay out - - -

PN174

MR BLACKBURN: No, with respect, that's not what she said.

PN175

MR EDMONDS: It's precisely what her evidence was, thank you very much. She said that Mr Windis threatened legal action on 1 October 2008 if CBI did not pay out their employees that were engaged on the previous agreement. She then referred to a meeting that occurred yesterday morning with a Mr Robert Brown and Mr Brad Upton and then a meeting this morning where it said that the work force had decided that unless they were paid out there would be a one week strike, a day return, and then a further week's strike.

PN176

No way does her evidence go to establish that the AMWU was in anyway involved in industrial action or is any way organised, engaged in or procured others to organise or engage in unprotected industrial action and certainly here evidence does not establish that any orders should be made against the AMWU. The evidence of Mr Peter Stuurstraat was that there was a - well, he's only been involved at the site for a very short period of time, some two weeks.

PN177

He said that he hasn't been involved with the meetings. He was aware that the unions held a meeting with their meetings some time ago. He waited outside while that meeting occurred otherwise he had a conversation with Mr Upton. Present at that time were Mr Johnson and Mr Brown where it is alleged that Mr Upton said that the workforce were going to go on strike if it was not agreed that the crew of the CBI crew would be paid out from the ..… agreement. He said at the time that it was not the correct process. He otherwise spoke to Mr Upton, to Mr Brown, to Mr Johnson and to Mr John Windis today in the ..... he mentioned to them that the workforce was on strike.

PN178

They advised him that they had addressed the meeting that occurred and that they recommenced to the membership to the workers concerned that they return to work and that they not engage in any industrial action. So in those circumstances and given the courses of amendments against the AMWU and against Mr Johnson and against any official of the AMWU, we'd say that it's simply not appropriate that any section 496 orders should extend to the AMWU. Now, if I could just briefly address you sir on the issue of service upon the workforce or upon the membership of the AMWU who the applicant seeks to bind with this order.

PN179

Of course rule 24(3) of the AIRC rules says that when an application for a 496 order is sought:

PN180

Subject to an order for substituted service under rule 73,

PN181

I am not aware of any order being made in those terms.

PN182

the applicant must serve a copy of the application and completed notice of hearing on all persons against whom the order is sought as soon as practicable after the application is filed.

PN183

Now in those circumstance we think it's implied that there should be other applications filed but before the hearing itself is heard. Now the applicant has not sought to be - or to have a substituted service under rule 73 or has not otherwise sought to not be bound by that particular rule. We would say that in those circumstances it is not appropriate that section 496 orders should extend to the workforce who have not had a copy of the application and a completed notice of hearing served upon them in compliance with the rules, who have not had the opportunity to be heard and again we draw the Commission's attention to the TWU case and the comments of the Full Bench of the Federal Court at paragraphs 43, 44.

PN184

I am sorry, I don't have a copy of this application, this judgment, please sir, but you've actually seen it before, sir, and also paragraph 46 and we'd say it's appropriate in the circumstances that if an order was to extend to the workforce that they ought be given an opportunity to be aware that the hearing is occurring and an opportunity to actually give submissions. It would not be difficult for the applicant to have sought substituted service in circumstances where the workforce was at work yesterday when the application was lodged and certainly they could have taken steps to at least advise the workforce that this hearing was going ahead and sought some provisions for substituted service whereby the application could be attached in some way to the notice board in the workplace so that those workers were at least aware this application was occurring.

PN185

I anticipate my friend saying, well, the AMWU is perfectly able to represent the interests of its members and it does so vigorously on the site and that seems to fly in the face of submissions that are given in other matters before this Commission where applicants in similar circumstances in other matters especially under a dispute resolution procedure where applicants - sorry, where the respondent companies often assert that the union is not capable of representing its membership. The union is not capable of acting for and on behalf of its members and that applications ought be brought individually.

PN186

Now we'd say in these circumstances that the applicant cannot have its cake and eat it too. That in these circumstances it is appropriate that if an order is sought against individual workers or against the workforce as a whole that they should be properly appraised of the application and given an opportunity to appear and to make submissions. So in those circumstances, sir, we'd say there is not basis for an order to issue against the union and there is no basis or it's certainly not procedurally fair for an order to issue against those members of the AMWU or the CFMEU who are engaged work on the work in question. Unless there is any particular questions, sir, that was my submissions.

PN187

THE DEPUTY PRESIDENT: Yes, Mr Nicholas?

PN188

MR NICHOLAS: Thank you, your Honour. To allow the extent to adopt those submissions made on behalf of the AMWU, we'd also like to make comment in relation to whether orders should be issued against the CFMEU and Mr Upton, an organiser of the CFMEU, and I refer specifically to the TWU case. I do have a copy here, your Honour, if you require one.

PN189

THE DEPUTY PRESIDENT: If you've got a spare copy it would be handy, thank you.

PN190

MR NICHOLAS: And specifically at paragraphs 22 and 23 of that decision. Your Honour, the court there addresses the issue of what kinds of orders might issue against organisations registered under the Act. They say:

PN191

Manifestly the kind of industrial action to which section 496(1) is directed is not industrial action that a union can engage in by itself. ...(reads)... which provides in this act a reference to engaging in conduct includes a reference to being whether directly or indirectly a party to or concerned in the conduct.

PN192

And then at paragraph 23 they go on to say:

PN193

If it could be said that section 496(1) contains a reference to engaging in conduct, a question which was not argue comprehensively...(reads)... are found to be directly or indirectly a party to or concerned in the engagement by another party in conduct referred in section 496(1).

PN194

And I'll stop there. Now, in relation to the facts as alleged by the applicant here, what we'd say is whatever is alleged cannot live up to the standard even required by section 4(5). The evidence as shown or the evidence as alleged is that there was merely passing on of information as to what occurred at a meeting yesterday morning and then this morning evidence that the employees were actually acting against the advice of both the CFMEU and the AMWU. Now, in those circumstances what we say is it wouldn't be open to the Commission to find that the CFMEU, Mr Upton, or indeed the AMWU was in terms of section 4(5) been directly or indirectly a party to or concerned in the conduct.

PN195

Your Honour, in that respect I'd refer you to another case of the Federal Court of Australia. That being the CFMEU and other v Marcus Clarke which was an appeal on an application for an order that the CFMEU had breached an old certified agreement and I'd refer you in that case to paragraph 26 and there the court says:

PN196

Stripped to its essentials, the case for breach of section 170MN was that the organisers attended the meeting on 29 July 2004 arranged by the job representative ...(reads)... such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators

PN197

And there they go on to cite authority for that proposition. So, your Honour, what we'd say is that the facts as alleged in this case mirror very closely the facts dealt with by the Full Court in that case just referred to so it's not possible to make a finding that the CFMEU or Mr Upton, the organiser for the CFMEU, is a party or engaged in the conduct alleged and as such there should be no orders made against Mr Upton or the CFMEU. In the same way, your Honour, we'd say it's relevant to take note of the fact that it appears that employees of the applicant are in effect ignoring the advice of both the unions so that any order that requires the unions to pass on information to employees is likely to have little extra effect and so that the Commission shouldn't make an order that any orders made be passed on in that way.

PN198

In relation to the natural justice elements of this case the authorities we say show that what must be taken into account is the particular circumstances of each case and the Commission should decide whether the unions involved can adequately represent the interest of the employees to which orders might be made. Now, in this case in circumstances where employees, admittedly there are at least some CFMEU members involved in what's going on today, but there is also non members involved. It's very hard for the CFMEU to know who exactly of its members are there on site but in the circumstances where employees are acting against the advice of the CFMEU it's not responsible to make a finding that the CFMEU can adequately represent their interests.

PN199

In the same way in terms of communication with members you've heard evidence that there has been two mass meetings over the course of the last two days and there's been communication with at least some of our members through those meetings but besides from that it is very hard for the union to communicate adequately with its members. In the circumstances of those meetings you've heard that there was some disagreement about access and whether the meetings were organised. In these circumstances we say that your Honour should have regard to the difficulties that the union has in communicating with members and require that notice be given of these proceedings and opportunity for each employee that might be the subject of any orders is give an opportunity to be heard.

PN200

THE DEPUTY PRESIDENT: Mr Nicholas, the fact that you have not called any witnesses and there is no evidence from your side as to what occurred or didn't occur at the meeting, the meetings of employees. Do you have any comment about the inferences that should or shouldn't be drawn from that?

PN201

MR NICHOLAS: Your Honour, what we would say is that the evidence as led by the applicant showed or supports what submissions I am making that the evidence of Mr Stuurstraat was that he was advised that the unions had advised against the employees taking - - -

PN202

THE DEPUTY PRESIDENT: Well, they said they had. There is no evidence from you or through the AMWU that Edmonds is representing that that was said or not. There was no attempt by you or through Mr Edmonds to either support that or provide any context in which statement like that if they had been made at those meetings were made or any opportunity for the applicant to cross-examine on the context and environment manner in which any comments like that or statements had been made. So what I am asking you is there any comment you have about any inferences I might make with respect to you not calling evidence in support of that contention.

PN203

MR NICHOLAS: Your Honour, in these circumstances we'd say that there shouldn't be any adverse inference made given that the status of the evidence before the Commission doesn't require any elaboration of what happened at those meetings. There is no suggestion by either of the witnesses for the applicant that in fact it was the union that was - or either union or the organisers that were organising any industrial action that might be occurring. In fact the evidence by those witnesses is that in the first case the organisers passed on information about what had occurred at the meeting and in relation to the second witness that in fact the unions informed the second witness that employees were acting against advice.

PN204

THE DEPUTY PRESIDENT: Do you have any further submissions?

PN205

MR NICHOLAS: No, your Honour.

PN206

THE DEPUTY PRESIDENT: Mr Edmonds, do you wish to comments on those questions I just asked Mr Nicholas?

PN207

MR EDMONDS: Sir, I would simply agree with the comments from my friend, sir. Of course the evidence from Mr Sturrstraat was that the comments from the union officials and the delegates were very simply put. There was no evidence from him that he in any way challenged or disagreed with the assertions that they put to him and there was certainly no positive evidence led by the applicant that the unions were in any way involved in engaging or organising this industrial action and we say that it's not necessary for us to led evidence to negative a proposition that has not been advanced by the evidence put by the applicant.

PN208

THE DEPUTY PRESIDENT: But your assertion is that the unions and the union officials and delegates are not involved at all.

PN209

MR EDMONDS: Yes.

PN210

THE DEPUTY PRESIDENT: You've provided no evidence in support of that contention.

PN211

MR EDMONDS: Well, sir, we'd say that the applicant has provided no evidence that in any way the union was involved in that and indeed the evidence that they have led from Mr Stuurstraat certainly went against that proposition. The strongest you can put the evidence from the applicant is that the unions were present at a meeting. It doesn't go to the unions organising and engaging or in way procuring industrial action and we'd say that that inference can't be drawn from the evidence that has been led and the evidence from Mr Stuurstraat was that when he spoke to the unions about it they said, look, you know, we told them not to engage in industrial action.

PN212

They've gone out. He didn't in any way disagree with that proposition that was put to him by the union officials and he didn't advance a contrary view or he said he didn't advance any evidence that they were in any way were engaged in that industrial action.

PN213

THE DEPUTY PRESIDENT: Yes.

PN214

MR EDMONDS: Thank you, sir.

PN215

MR BLACKBURN: Well, firstly, if I might just address a matter that Mr Edmonds raised in relation to the evidence of Ms Luskan. It was clearly my understanding that Ms Luskan indicated that Mr Windis had threatened illegal industrial action. Now given the urgency of the matter and I don't know whether access can be had to the recording or transcript but if your Honour was in doubt about Ms Luskan's evidence in that regard then we would seek to recall Ms Luskan to indicate whether she said that Mr Windis threatened legal industrial action or illegal industrial action. We say it was the latter and if there is any dispute over that then we would seek to recall Ms Luskan to - - -

PN216

THE DEPUTY PRESIDENT: There's no, given the - it's also another difficulty Mr Blackburn in that whether she said legal or illegal there is no guarantee that it was heard accurately given that it was by telephone connection so I'll consider that request after I've heard your submissions.

PN217

MR BLACKBURN: Yes. Thank you, your Honour. Well the question that you asked both my friends was obviously a point that we were going to make. This matter differs very considerably from Clarke's case because in Clarke there was uncontradicted evidence by all of the employees concerned - all of the union officials concerned and this appears from paragraph 14 of the report in Clarke's case where it is said in paragraph 14:

PN218

The uncontradicted evidence of Powell, Molina, Levy and Aleknavicius was that, on each occasion, Powell, on behalf of the union, spoke against motions put by a member of the workforce from the floor of the meeting, to take industrial action.

PN219

So in Clarke's case the union organisers - there was evidence from the union organisers concerned that they had spoken against industrial action. Now, what we have here is no more than a comment made to Mr Stuurstraat that at the meeting this morning Mr Upton and possibly others spoken against the industrial action. There is no suggestion that they spoke against the industrial action at the meeting yesterday when the vote was taken and the following weeks threat was made. Nobody has suggested to any CBI representative and it has not been suggested by my friends that Mr Upton or any of the other union delegates spoke against the taking of industrial action at the meeting yesterday and of course in relation today they have not gone on oath to be questioned in relation to what was said at the meeting this morning.

PN220

So the case differs from Clarke very substantially in that regard and there is a very strong Jones v Dunkeld inference that there is nothing that they could say that would assist them. The involvement of the unions in this case is higher than it was in Clarke's case because it starts with the threat by Mr Windis made on 1 October of unlawful industrial action which was not dissented from by Mr Upton who was present when that threat was made. Mr Windis is the AMWU organiser. Then following that we have a meeting yesterday that was insisted upon by Mr Upton, that's another difference with Clarke's case.

PN221

In Clarke's case the Full Court decision made clear the meeting was requested by the workers. In this case we have evidence of Mr Upton insisting on a meeting and being able to address the workers. Following the meeting then Mr Upton and the two union delegates come and tell the company this is what the position is if the demands are not met the workers will go on strike and neither Mr Upton nor Mr Brown nor Mr Johnson seek to disassociate themselves from that action or save that they spoke against that action.

PN222

So we've got very clear involvement of both the AMWU and the CFMEU in the industrial action and in organising the industrial action and my friend's answer is, well, they don't need to call any evidence because there is nothing put against them. Well we say that those things are put against them but also inferences are able to be drawn and in these sorts of matters are regularly drawn because it is not obviously always possible to bring - for the employer to bring direct evidence of what was said in the union meeting.

PN223

So for example in the case of ABB Australia v CPU which is 2002 Federal Court of Australia 1070. I only have one copy of that decision I am afraid but Weinberg J said at paragraph 32:

PN224

It seems to me that it's plainly open to infer that the CEPU to the actions of the organisers, ...(reads)... . Although it's possible that the decision to go on strike was not brought about by anything said or done by or on behalf of the union that is somewhat improbable.

PN225

Now, in that case his Honour was only concerned with whether there was a serious question to be tried but the point made there is that clearly inferences can be drawn. In a matter, a more recent matter involving the Full Bench of this Commission in AWU v BlueScope Steel. Again inferences were drawn and this case is authority for another point as well which I will come to and that is that it is open to the Commission to choose who the order will bind and the only requirement is that the order have a rationale and logical tendency to stop the industrial action from happening or being organised. At paragraph 25 that point is made. At paragraph 24 the Full Bench said:

PN226

Once the Commission has found that the requirements in section 496 have been satisfied it must make an order. ...(reads)... such an order is desirable just having a rationale or logical tendency to stop or prevent the industrial action.

PN227

And I'll just pause there for a moment, nothing in the Full Court decision in the TWU case which followed this decision detracts from that proposition. The Full Court decision also talks about the Commission being able choose its target to choose whom the order will bind. The only requirement being it must be an order that has - that it's designed to stop the industrial action or the organisation of the industrial action if that is found to be occurring. I will continue now at paragraph 25. The Full Bench said:

PN228

In the present case there was in fact evidence from which an inference of union involvement in, or support for, the action could be drawn. ...(reads)... It stretches credulity to suppose that the two events are unconnected or that what was conveyed to Mr Bergner was something different from that which had been decided at the meeting.

PN229

So another example of a case in which inferences were drawn. So clearly the evidence that was brought by the company was of express threats by Mr Windis on 1 October, by Mr Upton yesterday morning and also of Mr Upton convening and addressing a meeting and so there was both express - there was both the direct evidence and there was also evidence from which inferences could be drawn which required a response from the - from my friends or from Mr Upton if they wished to argue that they were not in way a party to the industrial action and of course they have not come on and provided any evidence so we say that a Jones v Dunkel inference can be drawn against them.

PN230

There is nothing that Mr Upton would say that would assist in that regard had he informed of course, the applicant would have had the opportunity to cross-examine him as to exactly what was said at the meeting yesterday morning and for that matter at the meeting this morning. If I turn now, your Honour, to the question of service. It was put by Mr Edmonds that the applicant had not complied with the rules of the union, sorry, with the rules of the Commission in by not personally serving the employees and that was part of a wider submission that both my friends have put that the employees have not been - have been denied natural justice and the union's do not submission to represent the employees for the purpose of these proceedings.

PN231

The question of service has been considered in a number of cases and just dealing firstly with this sub point about the rules and complies with the rules, that is a matter that has been addressed by a number of Full Benches of this Commission prior to the Federal Court decision and one of the case in which it was addressed was Allison's case, sorry, Tenix which involved Mr Allison and Mr Ainslie and others. If I can up a copy of the Tenix decision which is PR913519.

PN232

Now Tenix, I'll move briefly and quickly through this case at paragraph 28 the point is made the parties were required to make submissions as to whether service of a registered organisation is effective service on its members both as a general proposition in the context of a section 127 application. At paragraph 36 the appellants who were the individual employees contended that the respondent was required by the rules of the Commission to serve a copy of the application and a completed notice of hearing on each of them.

PN233

At paragraph 49, the Full Bench commences its reasons and said:

PN234

We think an employer applying to the Commission for orders under section 127 of the Workplace Relations Act is entitled subject to any contrary directions of the Commission, to rely on the representative character of a registered organisation of employees for the purpose of bringing notice of the application to the attention of the relevant class of employees members of the organisation who may be subject to the proposed order.

PN235

At paragraph 51 the Full Bench says:

PN236

In our view it would be incongruous and otherwise contrary to the process of service if an organisation that was validly representative of a class of employees for the purposes of the Workplace Relations Act, could disavow representation after service had been effected.

PN237

At paragraph 52 the Full Bench said:

PN238

In our view the CEPU and the AMWU announcements at the commencement of the hearing before Commissioner Hingley

PN239

Which was to the effect that they only represented the unions themselves

PN240

Were ineffective as a means of the appellants avoiding service or notice of the proceeding and they were not denied natural justice on that basis.

PN241

So Tenix was a case were the union advocates turned up and said that they represented the organisations and not their members and the Full Bench rejected that proposition. At paragraph 63 the Full Bench dealt specifically with was service effected in accordance with the requirements of the rules and it set out the rule at paragraph 63. At paragraph 66 the Full Bench says:

PN242

It seems to us that the point here in issue has been determined against the appellants in the decision of the Full Bench in Pryor's case. We think, consistently with Pryor's case, that service on an organisation of employees, of an application for orders under section 127 generally directed to its members who are employees of the applicant employer, is effective service for the purpose of bringing notice of the application to the relevant members. It is also effective service for the purposes of rule 25(3)(c) of AIRC rules.

PN243

Paragraph 67:

PN244

The respondent served the application in accordance with the requirements of the rule when it served the unions. It had no obligation under the AIRC Rules to serve the appellants as well.

PN245

So Tenix establishes that service on a union is sufficient for the purpose of complying with the Commission's rule and Tenix was followed in another case before the Federal Court decision in an appeal by Andrew Hempstead and others in which my friend Mr Edmonds was involved and it was against a decision of your own, your Honour. The decision in that matter which was C2005/1027, 1028 and 1029 was given in transcript and I don't have a copy of it but at paragraph 6 the Full Bench there said:

PN246

The second broad topic of appeal relates to denial of procedural fairness arising from the failure of the employer to serve the application and failure of the Commission ...(reads)... the AMWU appeared in a representative capacity and being an organisation has benefits and responsibilities that flow from registration under the Act.

PN247

Subsequent to that we have had the Full Court decision and in the TWU and then the HSUA case. Now the Full Court decision does not exclude the possibility of service on a union. In fact to the contrary it expressly allows that in an appropriate case service on the union will still be adequate service for the purpose of both bringing the application to the attention of the employees and also for the purpose of having the employees represented in the proceedings or ensuring that employees are given a special opportunity to be heard in the proceedings.

PN248

Paragraph 41 of the Full Court decision, the Full Court says:

PN249

It does not appear that any notice of proceeding was given to any of the employees individually which raises issues about the validity of the order because they may be denied what we now call procedural fairness.

PN250

The employer is referred to Prior v Cole Allied Operations and then at paragraph 45 the Full Court said:

PN251

Even there remain cases in which the Commission can legitimately say the interest of particular employees are represented adequately by an organisation for the purpose of the requirements for procedure fairness, the present case differs from that situation in two respects.

PN252

So the Full Court allowed that there could be cases where service on an organisation to be sufficient. The TWU case wasn't such a case for two reasons. One, the union concerned was not a union registered under the Federal Act and that apparently meant that the Commission couldn't be assured there was the same degree of democratic controls on such an organisation. And the second distinguishing feature on that case is that the order there purported to bind non members and of course the organisation could not represent the interest of non members.

PN253

The Full Bench concluded at paragraph 46:

PN254

In summary there may be cases of various types before the Commission in which the Commission is entitled to assume that an organisation represents the interests of its members of the application of the principles of procedural fairness....(reads)... by treating their individual interests as represented adequately by the participation of the union in the hearing particularly where that union is not an organisation.

PN255

So the Full Court allowed that it was still possible and that issue was followed up subsequently by a Full Bench of this Commission in Health Services Union v Victorian Hospital Industrial Association. I'll hand up a copy both of the decision in HSUA case and the order which issued. The HSUA case was PR981439. The order which issued was PR980261. At paragraph 23 of the decision in the HSUA case the Full Bench said:

PN256

The third contention advanced by the HSU was that the order was invalid: firstly because 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 made. In this latter respect it was said that posting a notice on a notice board is insufficient.

PN257

At paragraph 25 the Full Bench having referred to the Federal Court said:

PN258

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.

PN259

The Full Bench said:

PN260

Their Honours did not discard the possibility that these requirements could be met by notification of the union concerned. It is 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. In this case there are a number of indications that the HSU did adequately represent the employees. The first is that the order is not binding upon employees generally but only upon employees who are members of the HSU.

PN261

And that's the case here.

PN262

It's to be inferred that HSU had a ready and effective means of communication with its members. The second is that there was ample evidence before the Commissioner that the HSU was acting on behalf of its members. These measures seem to us to be adequate to bring the terms of the order to the attention of the HSU members concerned.

PN263

Sorry, your Honour, my apologies.

PN264

The Full Bench said the terms of the order required the HSU to publish a notice giving details of the order on its website to advise the delegates of the order and to provide them with a copy of the same notice. These measures seem to us to be adequate to bring the terms of the order to the attention of the HSU members concerned.

PN265

THE DEPUTY PRESIDENT: But Mr Nicholas says that in that it says that this to be inferred there's already inadequate means of communication with members. Mr Nicholas says his submissions that this isn't the case here.

PN266

MR BLACKBURN: Yes, but there is no evidence from Mr Nicholas about any difficulties being experience by the CFMEU in communicating with its members about any difficulties being experienced by the CFMEU in communicating with members. What we have had, your Honour, is evidence of firstly a mass meeting of employees yesterday, secondly a mass meeting of employees this morning and tellingly, Mr Windis and Mr Upton being present at the Bayview Village this morning with the organisers, so that indicates that - sorry, with the two delegates, so the two organisers and the two delegates were present at the Bayview Village this morning.

PN267

They also addressed the meeting at the Bayview Village this morning. They addressed a mass meeting at the site yesterday. That indicates that the organisers are up there, they're on site, either on site or around the place and that they are therefore communicating with the workforce, quite apart from the involvement of the union in the workplace through having enterprise bargaining agreements and through attending and dealing with other industrial issues. On this issue they have been present both yesterday and today.

PN268

This morning they were up there at the Bayview Village, so there's no evidence from the union that it is having difficulties communicating with its members. There's simply Mr Nicholas's unsupported assertion to that effect so we say this is a case where the service on the union can be taken to be sufficient for the purpose of bringing the matter to the attention of the employees. If your Honour was against us on that, the matter could be addressed in one of two ways, either by providing leave to any person affected by the order, which is Mr Nicholas's suggestion, to apply to revoke the order as far as it concerned them or secondly by making an interim order and to stand while the application was served individually on all 250-odd employees.

PN269

We say that having regard to the decision in the HSUA case and the earlier decisions, that would not be necessary. Your Honour, if I move now to the question of who the order ought apply to, clearly the order ought to apply to the employees concerned because they are on strike at the moment. The order ought also apply in our submission to both of the unions because of their involvement to date.

PN270

They clearly are parties within the - they clearly engaged in organising and in the industrial action within the terms of section 4(5) of the Workplace Relations Act and my friend Mr Nicholas has already taken you to Clark's case which sets out some of the principles to be applied in determining whether a person is a party to or not only concerned in action for that purpose. Of course, as I've indicated, the evidence in Clark's case was much more substantial than here as far as the union representatives are concerned.

PN271

There was uncontradicted evidence from the unions in that case that they had spoken against the motions put by a member of the workforce and there was no evidence of prior threats and the union meeting in that case, there was evidence the union meeting in that case had been convened at the request of the workers. Another case which also expands on what is meant by being knowingly concerned in or a party to unlawful industrial action is the decision of Lemear J in Leighton Contractors Pty Ltd v CFMEU which is at 154 IR 228. At paragraph 25 Lemear J said:

PN272

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. A person must engage in some act or conduct, including an intention which implicates or involves him or her in the contravention.

PN273

At paragraph 29 his Honour says:

PN274

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 the contravention. However, it's not necessary that the person physically do anything to further the contravention. It's sufficient if the person by what he said and agreed to do in fact became associated with and thus involved in the relevant sense in the conduct constituting the contravention. That person might vote against a course of conduct and subsequently assent to an associate himself with it. The principle of cabinet solidarity is an example.

PN275

At paragraph 36 his Honour said, this was in relation to conduct of Mr McDonald that:

PN276

Mr McDonald did more than merely attend a meeting and recommend to the employees that they return to work. It's open to the tribunal in fact to infer that McDonald convened the meeting and presided over it. McDonald acted as the spokesman for the striking employees in presenting its response to the joint venture representative and in speaking about the matter no the radio. It's open to infer that McDonald associated himself with the unlawful industrial action.

PN277

We say this case is akin to the actions of Mr McDonald in that case. It was only today that we've heard the suggestion that Messrs Upton, Brown and Johnson spoke against the industrial action being taken at this morning's meeting, no suggestion that they did yesterday and they had clearly associated themselves with the unlawful industrial action. In any event, as the cases made clear, the case to which I've just referred, the Bluescope case, but also the Federal Court decision, it's not actually necessary to make a finding that the unions have breached the Act in order to make an order against them. The choice of target is within the discretion of the Commission. If we go to paragraph 16 of the Federal Court decision, their Honours there said:

PN278

It's plain that if the specified 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 restriction must be made. It may be true that the Commission -

PN279

this is midway through paragraph 16:

PN280

It may be true that the Commission has to select the person or persons on which its 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.

PN281

So it's not clear that his choices involve an exercise of discretion in the same way as the Commission formerly exercised its discretion. An order must be made. It 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.

PN282

The choice of the target of the order will be dictated by the requirement that the order be made and that it achieve one or more of these purposes, so the Commission does have a choice of target and therefore even if it is not satisfied that the CFMEU and AMWU have been engaged in the organisation or in the industrial action itself, the Commission is still able to make an order against those unions which would have the effect of stopping the industrial action and stopping it from being organised.

PN283

Clearly the industrial action has been organised. Your Honour, other than that, the only other comment I have to make in relation to the service proposal in the draft order for service on employees, that is in similar terms to the order in the HSUA case which the Full Bench confirmed was acceptable, in the HSUA case order 5.2 was service of this order on employees may be effected by placing a copy of the order on the notice board usually used for the purposes of communicating with employees and the same requirement is included in this order, together with the requirement for a copy of the order to be served on the unions. Your Honour, unless you have any questions, those are our submissions. May it please the Commission, I do repeat the request to recall Ms Luskan if there is any doubt as to what you said in relation to Mr Windis and in the event that your Honour finds that that is necessary to be determined.

PN284

THE DEPUTY PRESIDENT: It is not necessary, Mr Blackburn. I do have a question, though. I think some of Ms Luskan's evidence also I think when the issue was raised with her I think on 1 October, I think her evidence was that she said the issue should be progressed through the relevant procedure, something to that effect. What do you think she meant by that?

PN285

MR BLACKBURN: I assume, your Honour, she meant the disputes procedure in the collective agreements.

PN286

THE DEPUTY PRESIDENT: How would that work?

PN287

MR BLACKBURN: I don't know, your Honour. I haven't considered the disputes procedure in the relevant agreement. It hasn't been followed. It certainly doesn't include the taking of industrial action, but I will have a look.

PN288

THE DEPUTY PRESIDENT: I am just interested in the context of Mr Edmonds I think said, well, limitations on the capacity to proceed through a disputes procedure by the union and I think his inference was so the union has difficulties in representing employees on grievances and they're not recognised in that effect, I think that was his inference, but when it comes to orders of the nature you're seeking here, they are. I think that is what he was getting at, so what I am interested in is your evidence or the evidence that was led by you was, well, when the issue was raised, the response I think from Ms Luskan was it should be dealt with through the grievance procedure. How?

PN289

MR BLACKBURN: Your Honour, I've not considered how it might be dealt with through the grievance procedure and I don't know that it is an issue which needs to be considered in this - - -

PN290

THE DEPUTY PRESIDENT: I am just interested in the context of Mr Edmonds' submission that the union cannot or should not be found to be representative of employees for action when the union cannot or should not be able to represent employees in pursuit of grievances. I think that was the line that was running.

PN291

MR BLACKBURN: The two issues are not - - -

PN292

THE DEPUTY PRESIDENT: You're saying they're not linked?

PN293

MR BLACKBURN: They're not linked. The union can talk to its members.

PN294

THE DEPUTY PRESIDENT: Or comparable is probably a better word.

PN295

MR BLACKBURN: Well, yes. The union can talk to its members and is talking to its members and the organisers were at Bayview Village this morning doing exactly that and were at the site yesterday doing exactly that, so if there are deficiencies and I don't say there are, but if there are deficiencies in an issue resolution procedure or the resolution procedure is not able to deal with a particular dispute, so be it, but that doesn't affect the unlawfulness of what is occurring at - - -

PN296

THE DEPUTY PRESIDENT: It's just that your witness gave that evidence, that's all.

PN297

MR BLACKBURN: I assume that's what she meant. She may have been referring to another procedure, but I assume that's what she meant.

PN298

THE DEPUTY PRESIDENT: Although in other proceedings, if it were taken up in a grievance procedure, maybe she might have a different view.

PN299

MR BLACKBURN: Each case would have to be looked at on its own merits and according to the legislation.

PN300

THE DEPUTY PRESIDENT: Yes. Mr Edmonds and Mr Nicholas, in the circumstances I will provide you with an ability to respond to any of that should you wish, but you will need to be brief.

PN301

MR EDMONDS: Sir, the inference the Commission drew from the comments I made was correct, sir, but other than that I don't have anything further to add.

PN302

THE DEPUTY PRESIDENT: Or anything that Mr Blackburn made submissions on is what I was alluding to.

PN303

MR EDMONDS: Yes, sir, they were very lengthy submissions. I don't have anything in particular to add, sir, other than to draw your attention in particular to the comments that Mr Blackburn made in relation to the Leighton Contractors case and the idea of being knowingly concerned and a party to the contravention and assenting or concurring to the conduct in some way is generally representing the conduct itself, we would simply say that there is no evidence against any of the AMWU representatives, that they have in any way represented the conduct or participated in the conduct or endorsed the conduct. The only evidence is that from Ms Luskan where she said that Mr Windis threatened legal action or the evidence from Mr Stuurstraat - - -

PN304

THE DEPUTY PRESIDENT: I don't accept that she did say that, but whether she did or not I don't think is critical.

PN305

MR EDMONDS: Yes, sir, and certainly then the evidence of Mr Stuurstraat on speaking to the relevant officials and delegates was that they said that they had addressed the meeting and recommend the members return to work and not participate in industrial action. That is consistent with my instructions. Thank you, sir.

PN306

THE DEPUTY PRESIDENT: Mr Nicholas, anything you wish to raise?

PN307

MR NICHOLAS: Just briefly, your Honour, in relation to whether or not an interim order should issue, we would draw your attention to section 496(7) and where the Act provides that:

PN308

The Commission must not make an interim order if the Commission is satisfied that it would be contrary to the public interest to do so.

PN309

We would say if you have concerns in relation to service and natural justice in this application that it would be contrary to the interests, both the public interest to make an interim order where those same concerns would arise. The people that have been denied natural justice are in the main application also denied natural justice in relation to the making of an interim order and also in relation to the level of the unions' involvement that Mr Blackburn mentioned and he referred to the Leighton Contractors case, we would just say that that case was in relation to an application for an interlocutory injunction so the level of proof there was lower than we would say it needs to be here.

PN310

THE DEPUTY PRESIDENT: Thank you, Mr Nicholas. I intend to adjourn for a few moments. I would ask that you stay in the vicinity of the Commission. I will be 15 minutes at least. I hope to be able to decide within that time if an order should issue or not and if I can't, then I will advise you at that time accordingly. Just for the record, so there is no doubt of the issue raised about this, I was provided with a copy of the witness statement or proposed witness statement by Brad Upton prior to these proceedings. However, other than the first paragraph and the introduction to that witness statement, I have not read it. I just wanted to make that clear for the record. I will adjourn as indicated.

<SHORT ADJOURNMENT [1.26PM]
<RESUMED [1.40PM]

PN311

THE DEPUTY PRESIDENT: I have reached a decision on this application. Firstly, I am satisfied that service of the application or the manner in which it's been served is sufficient for those who have an interest or might have an interest in the application. It appears to me and it is patently clear that industrial action is happening involving employees of the applicant who are or are likely to be members of the two unions who appear here today.

PN312

I consider Mr Nicholas and Mr Edmonds to be able to represent those persons who would be affected by any order that I make. It also appears to me that the AMWU and the CFMEU through their delegates and/or officials and/or representatives have threatened industrial action and I have no evidence that would convince me that those threats have been withdrawn that industrial action would occur.

PN313

It also appears to me that industrial action therefore is threatened and is being organised. I shall therefore issue orders in the terms sought. Drafts of those orders will be provided to the parties as soon as I can, hopefully within the next 10 minutes, but my associate will communicate with you if that could be delayed in which case they will be emailed to you in draft form prior to issuance later this afternoon. This matter is adjourned.

<ADJOURNED INDEFINITELY [1.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

KELLY LUSKAN, AFFIRMED PN38
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN38
CROSS-EXAMINATION BY MR NICHOLAS PN95
THE WITNESS WITHDREW PN100
PETER STUURSTRAAT, AFFIRMED PN100
EXAMINATION-IN-CHIEF BY MR BLACKBURN PN100
THE WITNESS WITHDREW PN150