C2008/638, Transcript of Proceedings [2008] AIRCTrans 826 (18 December 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19483-1

COMMISSIONER BLAIR

C2008/638

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

Auscomm Pty Ltd Primaweld Engineering Pty Ltd WorleyParsons Services Pty Ltd GBG Concrete and Constructions
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia The Australian Workers' Union
(C2008/638)





Melbourne

3.00PM, THURSDAY, 4 DECEMBER 2008

Continued from 03/12/2008

PN168

THE COMMISSIONER: Mr Rinaldi.

PN169

MR RINALDI: Thank you, Commissioner. Commissioner, what I propose - and I’ve discussed this with my learned friend Mr Borenstein - is to call Mr Milne again to complete a couple of matters relating to his evidence-in-chief, including an update on what has happened since yesterday since he was last in the witness box; and then as I understand it Mr Borenstein would like to make submissions in relation to his evidentiary objections, probably in the absence of the witness, and then we could proceed from there.

PN170

THE COMMISSIONER: All right, fine.

PN171

MR RINALDI: If the Commission pleases, I recall Mr Milne.

PN172

THE COMMISSIONER: Thank you.

<COLIN RAYMOND MILNE, RECALLED ON FORMER OATH [3.01PM]
<EXAMINATION-IN-CHIEF BY MR RINALDI, CONTINUING

PN173

MR RINALDI: Mr Milne, you are under your former affirmation. Mr Milne, do you have a copy of your statement there?---Yes.

PN174

Can I ask you to turn to paragraph 86?---Yes I have it.

PN175

These are the two employees that were mentioned yesterday who have not returned to work since Tuesday lunch time. In this paragraph you say that they’ve subsequently told PrimaWeld, their employer, that they are resigning today, this being 2 December, the date of your statement?---Yes.

PN176

Can you flesh that out, please, as to exactly what happened on 2 December in relation to those two employees and what the two employees have subsequently done?---Yes I can. At - subsequent to the events on the road where I observed those two individuals in the company of another person in the same vehicle being abused - - -

PN177

When was that?---That was around about 7 o’clock’ish in the morning of that morning.

PN178

On Tuesday the 2nd?---Yes.

PN179

Yes. What were they doing in the car at the time?---They were travelling to work.

PN180

Yes, and where did you observe that?---It was on the side of the road, probably 50 metres up from the main gate.

PN181

So that’s inside or outside the premises?---Outside the premises.

PN182

Right?---Prior to the picket line.

PN183

Yes?---The - having gone through the picket line and got to work, the individuals spoke to me some time early in the morning - not early in the morning, mid-morning and indicated to me that the pressure that was being applied to them was - was increasing and - - -

PN184

Did you observe any of that pressure yourself?---Yes, I did.

PN185

When?---In the car that morning.

**** COLIN RAYMOND MILNE XN MR RINALDI
PN186

Yes?---They were specifically told that they shouldn’t be crossing a picket line. They’ve got to work in the Valley again. “These people will never give you employment. You’ve got 10 years of employment - of work left in you. They can’t offer you employment for the full 10 years”, which I took to mean was “If you don’t do what we tell you to do, you’ll have some difficulty gaining employment in the La Trobe Valley”.

PN187

Who was saying these things?---Terry Lee.

PN188

Anyone else?---Yes, there was a couple of other fellows with him who were not employees or not organisers, one who I later identified as a Mr Geoff Sharp, and another one who I was advised was a fellow called Zorgie, who I don’t know, but a nickname called - what I think is Gorgie.

PN189

How long did Mr Lee and Mr Sharp and Gorgie address these two employees in the car?---They were in excess of five minutes, less than 10 minutes I’d say so, you know, round that period of time. It was fairly heated so I couldn’t - didn’t take a note of the time.

PN190

How would you describe the tone in which they were speaking to those two employees?---Very heated and threatening.

PN191

You said that mid-morning they spoke to you?---Yes, they did. They spoke to me, came into the office on site and said the pressure was increasing. They’d been getting phone calls at home, they had been told they wouldn’t work in the Valley again and they could no longer work on the site under that pressure.

PN192

Where did that conversation occur?---That occurred in the - in fact in the site superintendent’s office on the site.

PN193

What did you say to them?---I said to them we didn’t to lose them, they’re both good employees, and I said “Have a think about it for a while and let me know what you’re going to do”, which they subsequently did. They came back and saw me - spoke to me around about lunch time, just prior to lunch.

PN194

Where was that?---That was in the office, the same office and they indicated to me - well they didn’t indicate to me, they told me they could no - they were out of here, they can no longer work under that pressure.

**** COLIN RAYMOND MILNE XN MR RINALDI
PN195

Right, and did they say why they could no longer work under that pressure?
---Yes, because they were concerned that they’d had threats that they would not work in the La Trobe Valley again.

PN196

All right, and what happened immediately after they told you that?---They left the site.

PN197

Subsequent to that are you aware of whether either of those employees have returned to the site?---Only one has returned to site for a short period of time to collect his personal goods. I think it was tools.

PN198

How do you know that?---I was told that by the site superintendent.

PN199

Who is the superintendent?---Mark Irving.

PN200

And the other employee?---He has not returned to site at all yet.

PN201

Have you had any contact yourself with either of the employees in that time?---No I haven’t. No, I have - personally have not.

PN202

Do you know whether or not they have resigned their employment with PrimaWeld, given that they indicated that they were going to?---To the best of my knowledge they have not resigned.

PN203

I think your evidence was that they have not attended at the site apart from that one individual collecting tools; correct?---That’s correct.

PN204

Since Tuesday lunch time?---About lunch time, yes.

PN205

When do you believe the employee who collected his tools attended?---I think it was the following day in the morning. I think.

PN206

So that’s yesterday morning?---Yes.

PN207

You understand that from Mr Irving?---Yes.

PN208

All right. Now there is one other employee, an Auscomm employee, who had an accident on 20 November; are you familiar with that?---Yes I am.

**** COLIN RAYMOND MILNE XN MR RINALDI
PN209

He’s not mentioned in your witness statement?---No, he’s not.

PN210

Can you describe what happened in terms of the accident and what happened thereafter?---Yes, this particular individual was injured while they were moving a beam. He did some injury to his foot. He subsequently completed all of the paperwork required for a WorkCover injury. He is - made comment and - part of the reason that he gives for the injury is that his mind - he was not thinking properly. His mind was on other matters, following the union meeting that he’d attended on the lunch time of that day.

PN211

MR BORENSTEIN: Commissioner.

PN212

THE COMMISSIONER: Yes, Mr Borenstein.

PN213

MR BORENSTEIN: Sorry, Commissioner. I object. If the questioning could be limited to what is relevant in this matter and not to what some people were thinking about when they injured their foot or something like that. I can’t see how that is relevant to a section 496 action.

PN214

MR RINALDI: It will become evident in about 30 seconds, Commissioner.

PN215

THE COMMISSIONER: Become evident?

PN216

MR RINALDI: It will become evident in about 30 seconds.

PN217

So there was an accident and he has said it was partly due to his state of mind because of the industrial action; is that what you’re saying?---That’s correct.

PN218

MR BORENSTEIN: Well can I object. Can the questions be asked about what Mr Milne knows and what has been told to him.

PN219

MR RINALDI: Yes, the next question, Commissioner - - -

PN220

MR BORENSTEIN: He’s going on about a in our respectful submission,

PN221

MR RINALDI: - - - Commissioner.

PN222

MR BORENSTEIN: - - - story which - - -

PN223

MR RINALDI: I’m grateful to my learned friend.

**** COLIN RAYMOND MILNE XN MR RINALDI
PN224

Mr Milne, that’s what I want to ask you next is how do you know that? Who has told you, or have you spoken to this employee yourself?---I’ve spoken to the employee, the employee himself. I walked out of the site with him the other day, when he was actually leaving site, because he - - -

PN225

Which day is the other day?---Sorry, that was not yesterday, the day before.

PN226

Tuesday?---Yes.

PN227

Yes, did you speak to him before Tuesday?---Only in the same way that I’ve spoken to others.

PN228

So yes, you have spoken to him?---Well I have spoken to him, yes.

PN229

Since 20 November?---Yes, I have spoken to him.

PN230

Yes, and did you speak to him about the accident?---No.

PN231

Your knowledge of his explanation for the accident being partly because of his state of mind, because of the industrial action; where does that knowledge come from?---It comes from the paperwork and the discussion - the paperwork relating to the injury.

PN232

Right, and the discussion?---And the discussion with other individuals.

PN233

Right?---That he has said exactly the same thing.

PN234

MR BORENSTEIN: Well I object to this evidence.

PN235

THE COMMISSIONER: Unless Mr Milne was actually part of that conversation - - -

PN236

MR RINALDI: Yes, Commissioner. Yes, it doesn’t take it very far.

PN237

THE COMMISSIONER: No.

PN238

MR RINALDI: I accept that, Commissioner.

PN239

What happened in terms of this individual’s employment after the injury?

**** COLIN RAYMOND MILNE XN MR RINALDI
PN240

MR BORENSTEIN: The question has got to be what does Mr Milne directly know? Has he been told and who he has been told by. If my friend could identify Mr Milne’s knowledge first, rather than Mr Milne just giving a summary.

PN241

MR RINALDI: I think we need to identify what the knowledge is of first and then if Mr Milne can state where it came from.

PN242

MR BORENSTEIN: It should be part of the answer, in my submission.

PN243

MR RINALDI: I understand there was a meeting which is referred to in your statement on Tuesday the 2nd of this week, the 2nd of December at 7 o’clock, off site, is that right, at Numeralla?---Yes, sorry, yes prior to commencement of work.

PN244

Yes?---Yes.

PN245

Were you at that meeting?---Yes I was.

PN246

Was the employee that we’ve just been discussing also at that meeting?---Yes he was.

PN247

Did you have discussions with him at that meeting?---No.

PN248

What was his employment status on Tuesday morning?---He was on effectively modified duties because of his injury. He was attending for work. He had - there was no lost time injury.

PN249

Yes?---He was attending for work on modified duties.

PN250

What has been his employment status since Tuesday morning?---Exactly that.

PN251

Has he continued working since Tuesday morning?---He continued on modified duties up until approximately 36 hours ago. Sorry, 48 hours ago and when - - -

PN252

So Wednesday afternoon?---Yes. When he indicated to me- well no, he again didn’t indicate to me, he told me when I was walking out of the site with him that he was no longer able to work there. He had suffer - he had been put under an enormous amount of pressure and he could no - no longer willing to work on the site.

PN253

What time on Tuesday afternoon was that, do you recall?---That was around about knock-off time. I think it was a little bit earlier, so it would have been around about 4 o’clock, 3.30, 4 o’clock.

**** COLIN RAYMOND MILNE XN MR RINALDI
PN254

All right, and did he tell you why he couldn’t return?---Yes, he was - he was - he again was concerned about his future employment prospects. He was a local fellow and he was concerned that he would be victimised in future employment applications.

PN255

Did he work on the Wednesday, yesterday?---No.

PN256

How do you know that?---I - because I have actually checked to see whether he did come back to work, and rang the site and no he was not back at work.

PN257

Who did you speak to at the site?---I spoke to Mark, Mark Irving, and indeed I spoke to the site administration as well. The girl, the site secretary.

PN258

All right?---Who does the pay sheets et cetera - the timesheets.

PN259

Have you checked whether he has been on site today?---Yes, I checked at around about 2 o’clock.

PN260

Yes, with?---With the site - with Paula, who is the site secretary.

PN261

The answer was?---No, he hasn’t been back, and Mark Irving was there as well with Paula.

PN262

Yes. That was at 2 o’clock today?---Yes it was.

PN263

All right, and have you been able to confirm generally what has happened at the site since you were in the witness box yesterday afternoon, in terms of the picket line and so forth?---Yes, I have. I’ve had three or four calls to the site today. The first one being at - just after 7 o’clock this morning. I again spoke to Mark Irving in his capacity as being in charge - our representative on the site, and ascertained what had happened that morning. Mark informed me that he met with the employees and gave them an update on the proceedings here yesterday, that was prior to coming to the site.

PN264

Yes?---They then proceeded to the site. At the front gate they were not hindered going through, apart from the fact that the lock that was put on the gate by the operations people, that is the AGR people, as is normal, had been removed. In fact I think Mark said to me it had been cut off and the site was open. There were about five people still there attending the picket line. They didn’t impede the entry of the employees or the operations employees. Other than that, other
than - the end result of the site being, for want of a better term, unsecure, we were required to halt the employees down at the second gate and - whilst the operations people checked the plant for its integrity, given that we didn’t know who was in there, and our people were required then to check all mobile plant and equipment to ensure it was safe, then they proceeded to work. At the same time Mark had observed that there were a number of acts of vandalism, including the lock, some graffiti - - -

**** COLIN RAYMOND MILNE XN MR RINALDI
PN265

MR BORENSTEIN: Commissioner, I object to this as well. Again, these are not issues that are relevant to a 496 application. If my friends want to go elsewhere to deal with these issues, they are more than free to do so. They have chosen to come here for a 496 order. It’s not relevant. It does not establish whether industrial action is carried on or not carried on.

PN266

THE COMMISSIONER: Mr Rinaldi.

PN267

MR RINALDI: Graffiti could well be relevant, Commissioner, depending on what it says.

PN268

THE COMMISSIONER: It could be a wayward child.

PN269

MR RINALDI: It could be, or it could be - - -

PN270

THE COMMISSIONER: Expressing their frustration at their parents or something.

PN271

MR RINALDI: It could be a union organiser saying all you scabs should get out of here otherwise you’ll be black banned. So we don’t know. We’re in the process of hearing it. It’s at least potentially relevant. It won’t take long to hear.

THE COMMISSIONER: Unless Mr Milne can say categorically that he saw what the graffiti was, or an officer, a member or an agent of the union did it, it’s irrelevant.

PN272

MR RINALDI: If it is relevant graffiti it could be relevant to the threat, or probability or impending nature of future industrial action or the organisation of industrial action. So that’s how we rely on it, if it is indeed relevant. But we’ll see what Mr Milne has to say.

PN273

So what were you saying about graffiti. Are you able to identify or have you been told what the nature of the graffiti was?---I was told the wording of the graffiti, yes.

PN274

What was it?---There - there is a no entry sign up and someone has put - added to that the word - - -

PN275

MR BORENSTEIN: I object. If Mr Milne has got to be told - - -

PN276

THE COMMISSIONER: But just out of curiosity, I’m just interested - - -

PN277

MR BORENSTEIN: ..... say that.

**** COLIN RAYMOND MILNE XN MR RINALDI
PN278

MR RINALDI: No?---Should I proceed?

PN279

THE COMMISSIONER: Yes?---They’ve added the word grub so it now reads “No entry grubs”.

PN280

THE COMMISSIONER: It might be a wayward fisherman, who knows?

PN281

MR RINALDI: I think you should make the order now, Commissioner.

PN282

Was there any other graffiti or any other issues that - - -?---There had been
some - some minor damage to a number of signs as well, that appeared had been, you know, damaged by rock throwing.

PN283

All right, and when was the most recent time you’ve spoken to somebody about the existence of the picket and whether it is still there?---At about 2 o’clock this afternoon.

PN284

Yes, and who was that?---I spoke to Mark Irving.

PN285

What did he say about that?---The picket’s still there.

PN286

Thank you. That’s the extra evidence-in-chief I sought to trawl, thank you, Commissioner.

PN287

THE COMMISSIONER: Thank you.

PN288

Yes, Mr Borenstein.

PN289

MR BORENSTEIN: Just in accordance with what Mr Rinaldi said, before we have issues as to the admissibility of the witness statement. I would like to go through them each and seek ....., if I could Commissioner. So I would probably prefer to do that without Mr Milne in the room and then once that’s done the cross-examination on what is left, I suppose, of the evidence, if any, will take place.

PN290

THE COMMISSIONER: Right, very well. That’s fine.

PN291

Can you wait outside thanks, Mr Milne?---Yes, certainly.

<THE WITNESS WITHDREW [3.19PM]

PN292

THE COMMISSIONER: Yes, Mr Borenstein.

PN293

MR BORENSTEIN: Thank you, Commissioner. Commissioner I might just hand up some quick submissions that I’ve done on the rules of evidence and the applicability to Commission proceedings.

PN294

THE COMMISSIONER: Thank you.

PN295

MR BORENSTEIN: Commissioner, as the Commission would be aware they’re not bound by the rules of evidence however the authorities clearly set out that the Commission should not defer from such rules lightly. The first case that supports this position is the decision by Brennan J, who obviously went on to be the Chief Justice of the High Court; a decision of Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247. In that quote, halfway through that quote, he quotes from a decision which states:

PN296

Some stress has been laid by the present respondents upon the provision that the Tribunal is not in the hearing of appeals bound by any rules of evidence.

PN297

Which is similar to the Commission here:

PN298

Neither it is but that does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made through many generations to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party . In other words, although rules of evidence as such do not bind, every attempt must be made to administer substantial justice.

PN299

These words are consistent with what the Full Bench of this Commission has held in King v Freshmore S4213 which is a decision of the Full Bench, where they say:

PN300

Obviously section 110(2)(a) does not mean that the rules of evidence are irrelevant.

PN301

As the then President of the Industrial Relations Commission of Western Australia said in respect of similar provisions in the WA Act:

PN302

This is not a licence to ignore the rules. The rules of evidence provide a method required and formulated to elicit truth and to prevent error. They cannot be set aside in favour of a course of inquiry which necessarily advantages one party and disadvantages the other. The common law requirement that the Commission must not in its reception of evidence deny natural justice to any of the parties acts as a powerful controller to a tribunal which is not bound by the rules of evidence.

PN303

The Full Bench also quotes a decision of the Commission in New South Wales which is in a similar situation, and they say of section 83, which is the one that relieves from the rules of evidence, they say:

PN304

What that does is relieve the Commission of the need to observe the technicalities of the law of evidence. Commonsense as well as the rules of evidence dictates that only evidence relevant to an issue which requires determination in order to decide the case should be received. This means that issues must be correctly identified and applied.

PN305

The Full Bench says they agree with the above two decisions. I’ve also included a decision of Commissioner Lewin at PR928843 where he excludes hearsay evidence on the basis that obviously those persons have not been called to give their own evidence, and there has been no opportunity to cross-examine those witness. So we accept that the Act does not require the Commission to be bound by the rules of evidence, but we say that in this situation and in this case the Commission should. There are a number of reasons why we say these rules of evidence are important. The first reason is that the witness in this matter, Mr Milne, has previously been hailed by a presidential member of the Commission to be an unreliable and unsatisfactory witness and one that misled the Commissioner. I’ll hand up a copy of that decision for the Commission.

PN306

I’ve cut the excerpt out there which starts at paragraph 11. Lewin SDP says he found Mr Milne to be both unsatisfactory and unconvincing and he says in respect of evidence given:

PN307

In certain evidence given it was either a smokescreen or intent to mislead the Commission.

PN308

He also gives an example of where Mr Milne did not voluntarily bring information to the Commission’s attention which was obviously relevant to the matter, and found his approach in respect to what was the quasi-applicant in the matter, Mr Dunsmere, was “high-handed, unfair and inappropriate”. So in this situation we would submit that the rules of evidence become very relevant in the situation. The Commission should act with caution in reliance on evidence given by Mr Milne. Another reason why the Commission should act in caution, especially in this matter, taking into account the first matter I raised, is that section 496, I suppose since the Work Choices Bill, carries with it more serious consequences. In the TWU case in the Full Federal Court they make the statement that:

PN309

It is clear now that the form of section 496 makes it difficult for the Commission to rely on any practice that may have prevailed under the former section 127.

PN310

I suppose one of the factors that goes to that statement is the fact that under a section 496 order, section 814 provides that a person faces a penalty of 12 months imprisonment should they breach that order. I’ve got the excerpt of that provision. Therefore we would say again that the consequences that flow from such orders - there is more reason to abide by the rules of evidence. In case there are these criminal consequences relating to a 496 application, we say that the onus of proof that should be held for the applicant should be held to quite a high standard. The Briginshaw v Briginshaw test I set out there, and basically I’ve underlined that:

PN311

In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony of indirect inferences.

PN312

We would say that in the evidence that should be relied upon for the Commission to come to a conclusion of the jurisdictional facts that are required for section 496, hearsay evidence, the evidence that I’ll get to is just not sufficient. I wish to now take you to that, if I could, the particular paragraphs. I’ve listed the paragraphs there. I’ve got the heading Hearsay Where Source Is Not Disclosed. Behind that page I’ve included the relevant section from the Evidence Act. Section 75 says:

PN313

In an interlocutory proceeding the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

PN314

So obviously there’s an exclusion to evidence that is hearsay, but there’s an exception that applies only in interlocutory proceedings and says you can bring in hearsay evidence, but you’ve got to have evidence of the source. That question has been raised in a couple of matters that at least I’ve been involved in. Unfortunately it was raised in this matter; it was CEPU v Tenex. I must hand up the decision. This was a ruling made by the Federal Court in the matter where it was an application by the union saying that a third party, being Tenex, was coercing a contractor not to do an agreement with the ETU. It was mainly based on evidence received over the phone of the manager or the contractor saying that Tenex management had told him he couldn’t do an agreement with the ETU in effect. You’ll see on page 2 the type of information that was in the statement, and on page 3 down at the bottom in paragraph 5 it says:

PN315

Those parts which are said to be objectionable are that Mr McCleinmont, who is the manager of the contractor, had been called into a meeting with Tenex management and been told that if ...(reads)... who is supposed to have made the statement was not identified by Mr McCleinmont.

PN316

Then in paragraph 7 it says:

PN317

In none of the statements attributed to Tenex management is the source of the statements within Tenex identified.

PN318

Therefore Goldberg J says:

PN319

In my view the opportunity to apply section 75 of the Act does not arise because evidence of the source of the statements made by Tenex is not identified by reference to a person.

PN320

On that basis Goldberg J struck out all those paragraphs relating to the conversation with Tenex and ultimately, obviously, the case was unsuccessful. So on Goldberg J’s reasoning - and this is in an interlocutory application too, this is not in a full. This is an interlocutory proceeding, some quasi(sic) like the proceeding before the Commission here today, and Goldberg J basically held that it wasn’t good enough even for us to say “Tenex management”, which would certainly limit the group of people that it could possibly be. But that was not good enough, Goldberg J advising to identify the person. In the first instance if I could take the Commission to paragraph 20 of Mr Milne’s statement. We would seek that paragraph 20 be struck out on the basis that that is hearsay. Yes, it’s a statement made by third parties, not a statement made by Mr Milne and he does not disclose the source of the statement. He does not name the employee so we would seek that paragraph 20 be struck out on that basis.

PN321

MR RINALDI: Can I just interrupt my learned friend there briefly, Commissioner.

PN322

THE COMMISSIONER: Yes.

PN323

MR RINALDI: I imagine there are going to be a number of these types of objections. As we indicated - perhaps it was off the record prior to the hearing getting underway proper - obviously as one can imagine in these circumstances employees are concerned about repercussions. Employees have said that they will provide information to the employers provided they are given an undertaking by the employers that they not be named, for fear of the repercussions. As we indicated before, whether it be off the record, Mr Milne is in a position to disclose to the Commission confidentially the names for all these examples that my learned friend is going to take you to, which of course will bring those examples within the scope of section 75 of the Evidence Act, even if the Commission were bound by the rules of evidence.

PN324

Obviously I’ll be submitting that you’re not and you ought to take a practical approach, particularly in a matter like this, a 496 industrial action matter which has to be dealt with very quickly within 48 hours effectively. It has never been suggested before that a strict approach to evidence should be used on a 496, to my knowledge, let alone that the Briginshaw test should be applied. But the point in short is to say that we don’t want these names disclosed in open court because these undertakings have been given to the employees concerned, but the source can be disclosed to the Commission as I indicated previously, and that would override these objections even if the Commission were bound by the rules of evidence.

PN325

THE COMMISSIONER: Right, thank you.

PN326

MR BORENSTEIN: I thank my friend for explaining that they may well be able to be identified. I know there’s a power of the Commission to make orders regarding stuff being confidential on the basis that it’s financially confidential, but I don’t know if there’s any power for the Commission to make other evidence confidential. But the whole purpose of disclosing the source is so that instructions can be taken, rather than a vague statement about someone said this, someone said that. So it’s not good enough that it’s just told to the Commission because it doesn’t give us a proper opportunity to actually assess how accurate it is and whether it’s correct or cross-examine on it. I mean, it doesn’t alleviate the reason why the Evidence Act says that you have to disclose the source. Mr Milne could tell the Commission any names, and what difference does that make? It just doesn’t stand up.

PN327

If my friends want to rely on evidence in respect of a serious application that has serious consequences , they have to put the sources of the evidence. There’s no ability to get around it for any other reason, and there’s no - well firstly, there’s no direct evidence of threats, apart from what Mr Milne said in the day. But we would take some issue with that in any event. But there’s no evidence whatsoever of any violence or anything like that, and we say there’s no justification for what Mr Rinaldi says in any event anyway. So on that basis we say that if my friends want to rely on the evidence then they, in accordance with the rules of evidence, should say the source and go from there. My objections would fall away if Mr Milne can provide the source and those .....

PN328

THE COMMISSIONER: Thank you.

PN329

MR RINALDI: Well certainly he can do that and that would be squarely within the tension of the legislature in legislating section 110 of the Act, which has been there for a long time. The Commission in particular in paragraph 1(b) of that section:

PN330

Is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it considers just.

PN331

This is about justice. This is about employees not being hung out to dry, and for that reason the Commission should exercise its power under 111(1)(a) to inform itself in a manner it thinks appropriate, in order to achieve the aim is mandated by section 110(1)(b) of the Act, to achieve justice and indeed C, that is that the Commission must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Those are the matters for which this Commission is renown and Mr Borenstein, to suit his convenience today to try to put off the evil day, as it were, is seeking to completely radically alter the character of this Commission into some sort of narrow, pedantic body that does not have regard to its own Act, and the justice of the case. You should not be swayed by those submissions, with respect, Commissioner.

PN332

Mr Milne is in a position to provide the names to you. That would be you acting in accordance with section 110 and 111, to inform yourself in an appropriate manner to protect the position of the employees whilst gaining the evidence. To an extent that would satisfy the Evidence Act by which you are not bound, so that you can be satisfied, as we would submit you must be, that it appears to you - the wording of section 496, that industrial action is - and we would say both happening, threatened, impending or probable and being organised - and therefore that you must make the order that section 496(1) envisages. If the Commission pleases.

PN333

THE COMMISSIONER: Thank you.

PN334

Mr Borenstein.

PN335

MR BORENSTEIN: Commissioner, I just don’t understand how we’re supposed to question Mr Milne’s answers if we don’t actually know what the answers are. Mr Milne might give some evidence about - if we can’t hear the evidence that he gives regarding the sources, how he came to hear it, how are we supposed to challenge it? I mean, the whole basis of it is for us to be able to know what the source of the statement is and then be able to get instruction on it, and say “Well, that person wasn’t there that day” or “It couldn’t have been that person because of this”. I mean, how are we supposed to do that without that knowledge?

PN336

THE COMMISSIONER: It’s a question of whether or not the Commission decides to do that. It might decided to inform itself by having private conversation with those that may be identified, privately by Mr Milne, to verify or not what Mr Milne has said in his statement is a true reflection of what had been said to him. So you still won’t know who the people are, but the Commission will. The Commission will then decided whether or not the substantive part of Mr Milne’s statement is correct or it’s not correct. The difficulty that the unions have got is that the application under 496 came in at 4.45 and at 4.45, which is the end of 48 hours, if I’m unable to determine the matter I am to issue - there’s no question - I am to issue an interim order. It’s a question of how long that interim order goes. The Christmas season is coming up, the festive season. I’m sure that there will be people who will want to do other things, other than want to talk to me.

PN337

MR BORENSTEIN: That’s true.

PN338

THE COMMISSIONER: Well don’t nod so - - -

PN339

MR BORENSTEIN: I’m sorry, Commissioner.

PN340

THE COMMISSIONER: I’ll get offended.

PN341

MR BORENSTEIN: I don’t want to offend you, Commissioner. Yes, I suppose the problem we have is that we’re not in a position to actually challenge.

PN342

THE COMMISSIONER: No, and I understand that and I understand the difficulties that the unions have in terms of any concessions or anything else that they might say which might be construed as a concession.

PN343

MR BORENSTEIN: Yes.

PN344

THE COMMISSIONER: I understand all that. So I’ve got to acknowledge that you’re somewhat behind the eight ball.

PN345

MR BORENSTEIN: Yes.

PN346

THE COMMISSIONER: I’m not quite sure where we go with that or how we deal with it. As I understand Mr Milne’s evidence, put aside conversations that he may have had with employees.

PN347

MR BORENSTEIN: Yes.

PN348

THE COMMISSIONER: Some of his statement goes to what he personally witnessed.

PN349

MR BORENSTEIN: That’s correct.

PN350

THE COMMISSIONER: Right, and what he personally heard.

PN351

MR BORENSTEIN: Yes.

PN352

THE COMMISSIONER: And also in discussions with the three officers named in - - -

PN353

MR BORENSTEIN: Well in respect to Mr Mooney there’s no evidence of the alleged conduct in the submission I made to you.

PN354

THE COMMISSIONER: No, no. That’s true, because as I understand it he was there one day and there is a huge gap where he wasn’t there.

PN355

MR BORENSTEIN: Yes.

PN356

THE COMMISSIONER: A very flexible man, Mr Mooney.

PN357

MR BORENSTEIN: He’s not putting in like - - -

PN358

MR RINALDI: He’ll be here on Tuesday.

PN359

MR BORENSTEIN: He’s not putting in like the others.

PN360

THE COMMISSIONER: No. So as I said, put aside the issue of what someone may have said to Mr Milne, part of the affidavit goes on his personal observations and his personal experiences relating to the events down at the plant.

PN361

MR BORENSTEIN: Maybe an approach is - I understand what the Commission is saying in respect of the interim order time is getting close and maybe we need to make some submissions about whether the order should be made, rather than given on what evidence. But I suppose in our submissions we will be saying that where there is no source mentioned the Commission for the purposes of the interim order should not be relying on those paragraphs. The paragraphs that are left obviously can be relied upon and we’ll make submissions regarding what they establish. But I suppose our primary argument - and maybe the Commission does not need to rule on it one by one and we just leave it to submissions and say that those - my friends have put in their evidence. They’ve given the examination-in-chief and they rely on that and I’ll make my submissions on the basis of law and what the Commission should rely upon. I suppose that’s a way we can get this properly finished. Well, we’ll get it finished by a quarter to five.

PN362

THE COMMISSIONER: Right.

PN363

MR BORENSTEIN: I think that’s the best way to do it.

PN364

THE COMMISSIONER: All right.

PN365

MR BORENSTEIN: But on that basis my friends should not be given - they have put their case and they should rely on that. I mean, I’m not going to go through them and I don’t want to waste my time - waste them spending the next hour going through trying to correct their case if they haven’t done it properly in the first place. So we both maybe take our positions and put them, Commissioner.

PN366

THE COMMISSIONER: Right.

PN367

MR BORENSTEIN: So maybe on that basis we call Mr Milne back in and we do the limited cross-examination we are able to do.

PN368

THE COMMISSIONER: Yes, sure, and I’m just trying to quickly go through the statement that we may direct him to his observations, which maybe you should focus on, without telling you how to run your case.

PN369

MR BORENSTEIN: Yes, we’ll do our best. Cross-examination isn’t going to be as thorough as in a normal trial but we’ll do our best.

PN370

THE COMMISSIONER: All right, thanks.

<COLIN RAYMOND MILNE, RECALLED ON FORMER OATH [3.45PM]

PN371

MR RINALDI: Can I just, for clarification Commissioner, to understand my learned friend’s position. Do I understand that ultimately in a practical sense his acceptance that the paragraphs are in? He will cross-examine on whatever he wants to cross-examine on, and obviously there is always the question of weight for the Commission, which is affected by things like the ability to cross-examine. We accept that, potentially at least. I have just found the last - what fell from my friend at the last moment somewhat unclear. So I gather we’re going on to
cross-examine on what he can, on that basis; is that correct?

PN372

MR BORENSTEIN: In the end my submissions will be as I’ve set out, that the paragraphs I’ve nominated should not be relied upon. It’s a matter of weight, whether we give zero per cent weight to it or 100 per cent weight to it, or somewhere in between. I will leave it to a matter of submissions.

PN373

THE COMMISSIONER: But can I say to the parties that any decision that arises from today would be based on the personal observations and the personal experiences of Mr Milne. They would not be based on some conversation where a person has not been directly identified. Now it might be that if the Commission takes that tack, it still might result in an interim order, in order to give the Commission time to verify whether or not what is alleged to have been said has been said.

PN374

MR RINALDI: Yes, thank you for that indication, Commissioner. Perhaps it would be appropriate if I elicited an answer from Mr Milne before he was cross-examined on his ability to provide names to the Commission, because I don’t think he has said that himself. I’ve only said that from the bar table.

PN375

THE COMMISSIONER: That might be of assistance at least.

PN376

MR RINALDI: Yes.

<EXAMINATION-IN-CHIEF BY MR RINALDI, CONTINUING [3.47PM]

PN377

MR RINALDI: Mr Milne, we have been discussing the matters in your witness statement where you are stating what you have been told by other people, including employees who you don’t name. Are you in a position to provide to the Commission on a confidential basis the sources of that information in those paragraphs?---Yes I am but only on a confidential basis. I’ve given undertakings to individual employees that I will not disclose publicly, given the circumstances and the context of this whole dispute. But yes I am able to give that to the Commission.

PN378

Yes?---Confidentially.

PN379

Thank you, Mr Milne.

PN380

If the Commission pleases.

PN381

THE COMMISSIONER: Thank you.

PN382

Yes, Mr Borenstein.

PN383

MR BORENSTEIN: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR BORENSTEIN [3.48PM]

PN384

MR BORENSTEIN: Mr Milne, can I just ask when was the first time you started to get involved in this project?---What do you mean by that Mr - do you mean when I was engaged to work on this project?

PN385

Yes?---Some 18 months ago.

PN386

Did you have any involvement of the drafting of the non-union collective agreements that you mention at paragraph 12 of your statement?---Yes I did.

PN387

You had some involvement in it?---Yes I did.

PN388

Were you contracted by those relevant companies at all to do that, or you did that as part of your role with them?---No, they did their own agreements.

PN389

Yes?---Yes.

PN390

Were you involved in those agreements?---No. We provided information for them to base their agreements on.

PN391

All right, so you had communications with those employers, being Auscomm, GBA(sic) and PrimaWeld about the terms and conditions that should go in their agreement?---No. We provided them with terms and conditions that we felt were appropriate to the site, and they could do whatever they wished with them, and may alter them to suit their own particular circumstances.

PN392

Have you seen those documents since they were lodged?---No.

PN393

You haven’t seen the agreements since they were lodged?---No, all I’ve - all I’ve been told is they have lodged.

PN394

All right?---Yes.

PN395

You don’t know what is in them, though?---No.

PN396

You don’t even know if they’re more than what you told them they would be?
---Well, Mr Borenstein, I said to you they were able to alter them to suit their circumstances.

PN397

All right?---But substantially I would imagine they are the same as other contractors across the site.

**** COLIN RAYMOND MILNE XXN MR BORENSTEIN
PN398

Are they consistent with the terms and conditions that you provided to them?
---I think I’d have to say generally yes.

PN399

Generally yes?---Yes.

PN400

But you haven’t actually read through them?---No that’s not my position. No.

PN401

So it’s not normal for you to read through the agreements of the contractors that come on to a project that you manage? Is it normal for you to read through the agreements of contractors that come onto your projects?---Are you talking about this project?

PN402

Just generally?---Normally I would make myself accustomed to what is in them.

PN403

Yes?---Familiarise themselves - myself with them, yes.

PN404

But you haven’t done that here?---Well I would imagine they would be substantially the same.

PN405

No, have you done it here or not?---No.

PN406

In respect of the voting process were you aware of the voting process for these agreements?---No.

PN407

MR RINALDI: Commissioner, I object on the basis of relevance. The relevance of the agreements is that they exist, they’re in place in accordance with the Act.

PN408

MR BORENSTEIN: That’s what I’m asking about.

PN409

MR RINALDI: Well there’s no capacity in a section 496 application, as I apprehend it, to go behind the agreements to start to try to unravel whether they are in accordance with the Act. You must start from an assumption that they are, they’re there, and if they are in place and if they are not expired then the action will not be protected action, and therefore the first jurisdictional requirement for a section 496 order is made out. If these questions go to what is behind the agreement and whether it’s somehow not really there as a matter of law - the fact is, it is there in each case. There are three agreements. I don’t think there is any dispute about that, and to go back to what happened when they were voted up and all this is just irrelevant, in my submission. It should not be allowed.

PN410

THE COMMISSIONER: Mr Borenstein.

**** COLIN RAYMOND MILNE XXN MR BORENSTEIN
PN411

MR BORENSTEIN: Commissioner, I will be quick.

PN412

THE COMMISSIONER: What is the intent of it?

PN413

MR BORENSTEIN: Well it’s rather than whether or not the agreements have been lawfully made and whether they actually are in existence. The agreements are mentioned in the statement. The orders seek the employees to act in accordance with the relevant agreements so if the agreements are not enforceable then that has some relevance to the orders. I will be very quick on it.

PN414

THE COMMISSIONER: No, I understand that but I mean you’re asking Mr Milne these questions and all he says is he does not know, fundamental ally he does not know. So how then that can be of assistance?

PN415

MR BORENSTEIN: If he does not know I’ll stop.

PN416

THE COMMISSIONER: Yes.

PN417

MR BORENSTEIN: Mr Milne, are you aware of the process that was undertaken to vote on these agreements?---That’s a trick question. I - are you asking me - sorry, Commissioner. I don’t know what you’re getting at, Mr Borenstein. Are you asking me - there are two ways I could answer that. One, am I aware of the process, and I will answer that one and that is yes, I’m aware of the process.

PN418

All right?---That process would be - - -

PN419

What are you aware of?---I’m aware that - well, I’m assuming that it was conducted in accordance with the procedures under the Act.

PN420

No, do you have any direct knowledge of the - - -?---Are you asking me was I involved in the voting process at all? No.

PN421

Do you have any direct knowledge of the conduct of the vote for Auscomm, the Auscomm - - -?---No.

PN422

The GBA Concrete - - -?---No.

PN423

And PrimaWeld?---No.

**** COLIN RAYMOND MILNE XXN MR BORENSTEIN
PN424

To the best of your knowledge it was all done in accordance with the Act
?---Yes.

PN425

I have no further questions.

PN426

THE COMMISSIONER: Thank you.

PN427

Yes, Mr Rinaldi, do you wish to ask any questions?

PN428

MR WINTER: I’m sorry - - -

PN429

THE COMMISSIONER: Sorry, Mr Winter.

PN430

MR WARREN: I’ll try to be as brief as possible, Commissioner.

PN431

THE COMMISSIONER: Sorry about that.

<CROSS-EXAMINATION BY MR WINTER [3.54PM]

PN432

MR WARREN: Mr Milne, can I bring your attention to paragraph 97 of your statement?---Yes Mr Winter, you may.

PN433

I will be brief, Commissioner.

PN434

THE COMMISSIONER: That’s all right.

PN435

MR WARREN: Basically you talk about that unless the orders are made by the Commission certain things may happen et cetera, et cetera. Are you aware of the orders that are being sought?---I’ve seen it, yes.

PN436

Yes, you have seen the orders?---Yes.

PN437

Just a few points in regard to the orders, which basically I never noticed before in 496 orders before this Commission. You seek to have bound by the orders all persons employed by Auscomm, GBB, PrimaWeld et cetera who are eligible to be members of the CEPU, AWU or AMWU; is that right?

PN438

MR RINALDI: I object to the question. It’s a submission, Commissioner.

PN439

THE COMMISSIONER: Right.

PN440

MR WINTER: No, the question I asked is has he seen the orders and he said yes. I’ll rephrase the question.

PN441

Are you aware that those orders seek to bind people who may not be even members of the appropriate unions?

PN442

MR RINALDI: It’s a legal question. It’s a legal submission. He said he has seen the orders. He can read, as I understand it, and you really can’t take it any further than that.

PN443

MR WINTER: I’ll refer to another question in relation to the orders. In relation to the orders that the company seeks, they refer to certain agreements. In Mr Borenstein’s examination he referred to an agreement known as the GBG Concrete Agreement and you mentioned that you’re aware of that agreement; is that correct?---Yes, I’m aware there’s one in existence.

PN444

Are you aware that that agreement seeks to bind subcontractors and not only employees?---Well why would I - no, I’m not.

**** COLIN RAYMOND MILNE XXN MR WINTER
PN445

Have you seen the agreement?---Yes I have. I’ve said that.

PN446

If I could hand up a copy of the agreement, Commissioner - unfortunately I’ve only got one copy - to the witness.

PN447

MR RINALDI: While that’s happening, Commissioner, I’ve just noticed for completeness a typo in paragraph 12 of Mr Milne’s statement that says “GBA Concrete agreement”.

PN448

THE COMMISSIONER: All right.

PN449

MR RINALDI: That should be GBG.

PN450

MR WINTER: Can I bring your attention to clause 3 of that agreement, which you have got the only copy of. Is it unusual for the agreement to apply to subcontractors?

PN451

MR RINALDI: I object. Irrelevant and a matter of submission.

PN452

MR WINTER: Well it goes to the making of the agreement, Commissioner, and Mr Milne indicated that he - - -

PN453

MR RINALDI: Irrelevant for the same reason that I submitted in relation to Mr Borenstein.

PN454

THE COMMISSIONER: What is the relevance?

PN455

MR WINTER: Well if the agreement was not registered in accordance with the Act and thus the order can’t bind employees to those agreements, that those agreements have not been registered in accordance with the Act.

PN456

THE COMMISSIONER: But Mr Milne says that as far as he’s aware due process was followed, as far as he is aware.

PN457

MR WINTER: Yes.

PN458

THE COMMISSIONER: Now that might be a matter of contention at some point, as to whether or not any order that may flow is valid. But that can’t rely on anything that Mr Milne says, because he says he doesn’t know whether it’s - all he knows, as far as he is aware, is it has been submitted that it’s in existence. They’re working to it. I would have assumed that if the agreement was not a valid agreement he is unable to answer that. The onus would be placed upon, as I see it, yourselves because you’re contesting it, to find out whether it is a valid agreement.

**** COLIN RAYMOND MILNE XXN MR WINTER
PN459

MR WINTER: What I was about to put to Mr Milne was a question in relation to the making of that agreement, the actual physical making of the agreement and the development of drafts. The question I was going to put - and which I will - to Mr Milne was were you involved in putting these agreements together.

PN460

MR RINALDI: I still don’t see the relevance of that, Commissioner. The agreements are here. Unless there is some application made in another place - - -

PN461

THE COMMISSIONER: I’m not quite sure what will flow from it but - - -

PN462

MR RINALDI: Anther application to get rid of it.

PN463

THE COMMISSIONER: But let’s hear the answer anyway.

PN464

MR RINALDI: All right. If the Commission pleases.

PN465

THE WITNESS: In relation to the persons and parties bound to it, you’re referring to?

PN466

MR WINTER: Yes?---Well I’m reading it now and nowhere in it do I see what you’ve talked about. “Under the applicant’s application an incidence of agreement - - -

PN467

THE COMMISSIONER: Just a minute. Sorry, that’s not the question?---Sorry.

PN468

The question put to you is did you participate?---Yes I did.

PN469

MR WINTER: You did?

PN470

THE COMMISSIONER: In putting that agreement together?---Yes I did.

PN471

MR WINTER: So you participated in putting the agreement together. I’ve got no further questions of the witness.

PN472

THE COMMISSIONER: Thank you.

PN473

Now Ms Roberts I don’t want to leave you out.

PN474

MS ROBERTS: We’ve got no questions.

PN475

THE COMMISSIONER: Thank you.

PN476

All right, thanks Mr Rinaldi.

PN477

MR RINALDI: Thank you, Commissioner, no re-examination.

PN478

THE COMMISSIONER: All right. Mr Milne, before you step down?---Yes Commissioner.

PN479

You have heard what the Commission has said in regards to your evidence by way of your statement, and any decision that may flow today will be based on your personal observations?---Yes.

PN480

Not what has been said to you?---Yes I understand.

PN481

Now as I understand it at point 77 of your statement that is something that you have personally said to the employees?---Absolutely.

PN482

Paragraph 80 of your statement; that is something - and it’s a question. I’m not putting it to you as a fact but I’m asking you a question?---Yes.

PN483

Is that your personal observation?---If you bear with me so I can make sure I don’t answer it incorrectly, from a partial point of view.

PN484

Sure, yes.

PN485

MR BORENSTEIN: Sorry, Commissioner. On that one, I think there is probably two parts to paragraph 80. Probably the first half of the paragraph may be of a kind the Commissioner is thinking about, but certainly the second part is of double hearsay with no source.

PN486

THE COMMISSIONER: Yes, that’s Mr XXX?

PN487

MR BORENSTEIN: Yes, so Mr XXX says - - -

PN488

THE COMMISSIONER: All right, so we’re looking at down to where “I was approached”, that’s four lines from the top of paragraph 80; is that right? So the four lines down to that, is that your personal observation?---Yes.

PN489

Right. Paragraph 81; is that your personal observation and involvement?---Yes.

PN490

Paragraph 82; is that your personal observation and involvement?---Yes.

PN491

MR BORENSTEIN: Just in paragraph 82, Commissioner.

PN492

THE COMMISSIONER: Yes.

PN493

MR BORENSTEIN: Sorry to interrupt. But in 82 Mr Milne says “I didn’t hear what he was saying. He said to me that he was going to ask him to leave and I presumed he did so”.

PN494

THE COMMISSIONER: That’s right. Well, whether he did or not, the officer is alleged to have said “I’m going to ask him to move”

PN495

MR BORENSTEIN: Yes.

PN496

THE COMMISSIONER: Paragraph 83; is that your personal observation and activity?---Not directly mine.

PN497

All right?---The we is a collective one, Commissioner.

PN498

The Royal we?---The management.

PN499

Right, well very. Paragraph 84, is that your personal observation?---Yes.

PN500

Paragraph 85; is that your personal observation and activity?---Yes.

PN501

Paragraph 87; are those your personal observations, hearings and activities?---Yes they are.

PN502

Paragraph 90; is that your personal observation?---Yes it is.

PN503

MR BORENSTEIN: First, can I - - -

PN504

THE COMMISSIONER: Yes?

PN505

MR BORENSTEIN: Just in paragraph 90 the same four people, I don’t know who they are, but in respect of Mr Lee, Mr Milne says he basically didn’t hear the comment. So I would say the accuracy of that paragraph is a bit vague and uncertain.

PN506

THE COMMISSIONER: Except maybe in regards to Mr Lee.

PN507

MR BORENSTEIN: Yes, but he also says he didn’t hear the comments, so I’m not sure what comments he is talking about.

PN508

MR RINALDI: If I can clarify?

PN509

THE COMMISSIONER: Yes.

PN510

MR RINALDI: In terms of the four people, Commissioner, that refers back to the four people referred to in the second line of 87.

PN511

THE COMMISSIONER: Right, very well.

PN512

MR RINALDI: Mr Lee and three others who were with him.

PN513

THE COMMISSIONER: All right.

PN514

From that onwards, from 91 onwards and so forth, other than the involvement of the police officer and some other things in 93, 94 and so forth, most of what I can read are assumptions or comments that have been made to you by employees other than Mr Lee, Mr Mooney and Mr Warren and so forth?---I’m not sure whether I agree with you Commissioner.

PN515

All right, where do you think I’m wrong?---From 91 onwards.

PN516

Yes?---Are you saying that 91 onwards is an assumption or are you asking me whether that’s my observation.

PN517

No, you saw the police officer being approached by - - -?---Yes.

PN518

So 92 - - -?---Sorry, 92, all right yes.

PN519

Then he proceeded to have discussions and eventually told them that he required them to move on. Did you personally observe that; were you part of that discussion?---Not part of the discussion but I observed the policeman go to them and I saw them move off site.

PN520

Well that’s what I’m saying?---Yes.

PN521

Right, but you were not part of the discussions?---Yes.

PN522

So any comment regarding what the policeman said?---No, I’m not in a position to - - -

PN523

Exactly, and that’s the point?---Yes.

PN524

So basically up to 91, or up to 90 anyway, those are you personal involvements and your discussions and your observations without question?---Without question, yes. I think some of the others are too, 93 for example. I personally observed that happen. I personally drove through. I personally saw the employees drive through. I heard the abuse about the people that were there.

PN525

Right?---And what happened there, I saw that.

PN526

Right?---94, I saw that after the last - because we went through and parked and watched - - -

PN527

All right, but that’s a movement back to the camper?---Yes, but I saw it happen.

PN528

Well you may have seen it happen?---Yes.

PN529

All I’m interested in is the alleged activities of those that may have been interpreted as hindering or coercing or obstructing people from entering the workplace?---Yes, I understand.

PN530

All right?---Yes.

PN531

All right, thanks. You can step down, thanks?---Thank you.

<THE WITNESS WITHDREW [4.06PM]

PN532

THE COMMISSIONER: Mr Rinaldi.

PN533

MR RINALDI: My learned friend has just asked me if I felt that it was more efficient that he make submissions first, in the sense of closing submissions. As he rightly pointed out I made reasonably comprehensive opening submissions which I’ll be, to some extent, repeating or confirming, having now had the evidence. It probably is more useful I think if he goes first, and perhaps his colleagues if they have anything to add, and I do it by way of reply. That way I think we’ll be over more quickly. If the Commission pleases.

PN534

THE COMMISSIONER: Right, very well.

PN535

MR BORENSTEIN: Thank you, Commissioner. The first point that I would probably like to make is in respect of the ETU and the evidence against the ETU. As the Commission has obviously become aware, the only evidence that actually relates to the ETU doing anything that could possibly be argued to be potentially organising industrial action is set out at paragraph 91, which is the fact that Mr Milne says there was a group of 20 people that include Mr Mooney, and they moved across physically to obstruct the roadway. Even though we say we disagree with that, that evidence is there. But the evidence is that they did move out of the way once the gates were opened, and I think there was in effect no obstruction whatsoever. People went through.

PN536

There was no evidence saying what Mr Mooney said, and we say there was no abuse and without actually a clear statement that Mr Mooney actually did abuse anyone, we would submit that that‘s not good enough to satisfy the Commission that there was any intimidation whatsoever from Mr Mooney. There was obviously 20 people there and all Mr Milne says is that they were yelling, jeering and loud handclapping. I don’t think loud handclapping falls into anything. If there were threatening statements made, there’s certainly nothing that quotes Mr Mooney as saying anything. So that’s it for Mr Mooney and the ETU. I suppose to seek an order on that basis, we say, the evidence just isn’t there to support a finding of the jurisdictional facts. I might just turn to what they need to establish for the Commission.

PN537

Based on the TWU Full Court decision is the understanding of the operation of section 496 which is that - if I could just take the Commission to it. In the way that the Federal Court in the TWU case held, the first question is whether the industrial action is happening, threatened, impending and probable and being organised. If it’s happening then the Commission can make an order that it stop. If it’s threatened, impending and probable then the Commission can make an order that it not occur, and if it’s being organised then the Commission can make an order that it no be organised. So I might go to the first point and say is the industrial action happening? In respect of the applicant seeks to rely on the fact that people have resigned; well that’s what is in Mr Milne’s evidence. They have tried to change it subsequently but I think without any further direct evidence it’s pretty safe to say that the employees have resigned, and have shown indications that they no longer wish to obey the orders of the employer, and no longer wish to be employed by the employer.

PN538

I mean, the company could have easily called the relevant employers, the contractors on the site to say “What have they communicated? Are they working for you elsewhere? Are they still in your employment?” I think it’s pretty safe to say that they’ve resigned, from the actions they’ve taken. If I could hand up a decision of Watson SDP. This is a decision of Watson SDP in respect of a section 496 as well and the relevant paragraphs are paragraph 36 where his Honour says:

PN539

The act of resignation is very different tin nature from industrial action and has different serious consequences. Once made, the resignations could not be withdrawn in the absence that concerned the employer. Whilst the resignations arose in the context of an industrial dispute there is no reasonable basis to infer that they were not resignations in substance and in effect. A resignation is not industrial action any more than termination of employment is. While it is not inconceivable that resignation might occur as a tactic in the course of the industrial dispute, the language used in section 420 of the Act does not include resignation within the definition of industrial action.

PN540

That’s consistent with the line of authorities that have held that, I think when unions have tried to take the old 127s against employers, where they’ve been terminated, the Commission has said “Look, we can’t delve into that. 127 is not the appropriate tool for that”. So in that respect we say that in respect of the three resignations, without any clear evidence they are clearly not industrial action. If people choose to resign then it’s their decision and that is not industrial action. They mention a person who is on sick leave, on stress leave, who has put in a certificate.

PN541

MR RINALDI: We don’t rely on that as being industrial action.

PN542

MR BORENSTEIN: So in that respect, other that those there is no other allegation that anyone else is taking industrial action at this point in time.

PN543

MR RINALDI: Only Mr X, from today’s evidence.

PN544

MR BORENSTEIN: Mr X, he has resigned.

PN545

MR RINALDI: The person who has not come back since Tuesday afternoon.

PN546

THE COMMISSIONER: Right.

PN547

MR RINALDI: I’m sorry that I’ve actually unwittingly mentioned his name and I would ask all present to keep it confidential.

PN548

THE COMMISSIONER: Thank you.

PN549

MR RINALDI: If the Commission pleases.

PN550

MR BORENSTEIN: We would say that’s clearly obviously an abandonment of employment and from the evidence given my Mr Milne, it didn’t seem like he was coming back, and that’s for sure. I’ve had employers argue that that’s a resignation on much less grounds than those facts that Mr Milne said, so we would say clearly that falls in the resignation group as well. So on that basis we would say that there is no industrial action happening and therefore there is no jurisdiction, based on the TWU case, for the Commission to make an order that industrial action stop. We would submit that that part of it should be segmented from any order. I suppose Mr X - I don’t know who he is eligible to be a member of. We haven’t found out what he does and whether he is a member of anyone, so in that respect we say if there needs to be an order it might be an order made against Mr X, but I would say that he has resigned, by his conduct. I think the test is have they indicated that they no longer wish to be bound by their contract of employment, and I would say that his conduct clearly suggests that.

PN551

So the next question is, is industrial action being threatened, impending or probable? We would submit that if you take out the potential for people to resign, which is the only allegation being made - well, the only allegation of what is actually happening - we would submit that it’s not. The picket is still there but all the employees are still working. So we say the proof is in the pudding. The last two days the picket has been there and all the employees have actually gone to work, so we would say that there’s no evidence that it’s impending or probable because it has not been happening. If the status quo remains well then we expect that employees will still be going to work and the picket line will still be there, as has happened the last two days.

PN552

Is it being organised? We submit that on the evidence in respect of the ETU it’s impossible to say that Mr Mooney is organising industrial action. Again when talking about organisation of industrial action that does not include organising people to resign. There’s nothing under section 496 obviously that stops people organising people to resign. It does stop them organising industrial action as defined in section 420 but we say the evidence falls short of that. So on those bases we say the jurisdictional facts are not present before the Commission. Without that, we submit that the Commission should not make the orders. So on that basis, Commissioner, we say that the order should not apply because the jurisdictional facts are not satisfied as they are set out in the Act. Should the Commission be against us, I might turn to the terms of the order and make some submissions regarding that. I did email you a version earlier today.

PN553

THE COMMISSIONER: Yes.

PN554

MR BORENSTEIN: I haven’t provided a copy of that to my friend, which I will do now. I must thank Mr Levine for actually emailing me a copy of the order in Word format. Much appreciated, not that he is here to hear the compliment. Firstly, I might take the Commission to paragraph 2C. We would also seek to delete “During the term of this order”. That does not need to be there, based on the changes but we submit that the order should not bind employees that are not currently employed. Future employees (1) haven’t done anything (2) haven’t been served with the application and had a chance to defend themselves about what they’re going to do, and (3) will be employed bound by an order which if they breach they get put in jail for 12 months potentially.

PN555

UNIDENTIFIED SPEAKER: They might not have even been born yet.

PN556

MR BORENSTEIN: And they might not have been born yet, but I probably hope they would have.

PN557

UNIDENTIFIED SPEAKER: Does the order .....

PN558

MR BORENSTEIN: If they’re an electrician I would have thought they would be, but they might be a first year apprentice. So we would just say that it’s got to be that they’re currently employed, otherwise I suppose such individuals are not getting natural justice and we say it is an unusual thing to bind future unnamed people. In that respect we would say that that amendment should be made. Even though we don’t represent the employees I’ve deleted paragraphs 4(a)(ii) and (iii). In our submission if the employer is successful then subsection (i) does the job. I don’t see why there needs to be a subsection 2 and I think the TWU case actually criticises the inclusion of a clause that requires them to work in accordance with agreements, because it’s vague. I mean, even Mr Milne didn’t know what was in the agreement so he’s expecting employees to know exactly what is in the agreements, and if they don’t then they get put in jail for 12 months. It’s just unnecessary. The issue is to, in the employer’s situation, stop industrial action. Well industrial action covers all of that, so if you’ve got the general provision why do you need the specific, I suppose is the question, where the specific is vague in its terms.

PN559

I don’t see where paragraph 2 would have any - it’s totally consumed by paragraph 1 and in respect to paragraph 3 “Not interfere with the performance of work by other employees or persons” well that goes beyond the jurisdiction of the Commission to do that. There’s no evidence of employees interfering with the performance of work of other employees so the jurisdictional fact is not there to satisfy that, not even on the evidence of Mr Milne. So that is obviously beyond jurisdiction in our submission. Even in respect of paragraph 1, as I said before, there is no industrial action going on so it should not have “stop industrial action”. We would say that that should not be in there, but I suppose I’m making these submissions on the basis that the Commission is against me on that point.

PN560

THE COMMISSIONER: The question was asked yesterday of Mr Rinaldi about the employees and I think the response was basically they know that they will be bound by an order and if I’m correct in what he said or the inference in what he said, is that it seems to provide them with some security, to say “We are ordered to attend for work and that’s what we’re doing”. That’s as I understood what was said.

PN561

MR BORENSTEIN: I understand that and we would dispute that. It’s convenient for Mr Rinaldi to say but that aside, I would have thought subsection 1 does that. But in a legal sense - - -

PN562

THE COMMISSIONER: ..... would have serious concerns if for instance an order was issued and there was a particularly outspoken employee who didn’t attend for work one day and had a legitimate reason, but the employer says “You’re bound by an order and I may construe that to be industrial action by you not attending; and you didn’t contact us, by the way”. I don’t worry about that.

PN563

MR BORENSTEIN: I agree, and I suppose that’s a risk. That is a potential weapon for the employer to use during the project and that’s why I suppose I would prefer these orders to be more narrow but they’ve put in (i), something that covers everything; “immediately stop, not commence, recommence, not engage or threaten to engage in industrial action. Industrial action includes being available to attend to work, perform the work in accordance with” - what is the definition? “In the way that it’s customarily performed. Failure or refusal to attend for work”. It’s all in the definition so I don’t see where (a)(ii) gets them. So in that event it’s superfluous for two and three to be in there and I would say that the jurisdictional facts aren’t there, in their paragraph 1. Sorry Commissioner. Just on the point that the Commissioner raises, we’re not aware whether the employees have been told what the consequences are of an order being in place, and dependant on whether they are aware that imprisonment is a potential penalty for a breach of the order.

PN564

In respect of clause 4(b) of the orders I haven’t done anything with paragraphs B on (i), (ii) and (iii). I’ve deleted four and five in that I think the TWU case has also criticised the inclusion of these types of - the types of orders in four and five, especially in a situation where none of the employees are actually members of the unions. It goes further probably than the previous 127 orders but even under the new Act, the TWF, where a breach of an order is potentially imprisonment, we just believe that four and five are superfluous and have been criticised by the TWU Federal Court. I have put in C and the company still has all the protection about one, two and three but I have put in a subparagraph C which limits one and two somewhat, and that is in respect of being able to assemble, based on the definition from Bryson J, which is:

PN565

They can assemble outside the workplace and make known to others, including people going to and leaving the workplace, the fact that there is an industrial dispute, what their dispute is about and what they claim are the merits of the dispute.

PN566

But that paragraph C is overridden by (iii) which expressly provides that they can’t threaten, coerce, intimidate or harass its members. So as part of the actions in paragraph C if the things in paragraph 3 are done they would be in breach of the order. That is the main thing that is being complained about, as I understand it, in this - and the evidence goes to that, although it’s very limited in respect of the CEPU and we say unreliable. If the Commission is against us we say that paragraph 3 is what can’t be - goes to what they complain about. In respect of the term and date of this order, we submit that on the basis that this has been done like an interim order, or will be done probably as an interim order, that two weeks is an inappropriate time limit. If the employer wants to seek a permanent order - they have asked for 12 months and we say that that’s a permanent order and we say that that’s just not - in the original it’s 12 months and we say that’s totally inappropriate. So our submission would be that two weeks is appropriate. In that time if they want to come back then they have the time to prepare their material. The Commission would also see whether industrial action is happening. What does two weeks take us to? I might be on annual leave then. I’ll leave it to Mr Borenstein and Mr Larkins to take over on Christmas day.

PN567

But we would say that two weeks is more than sufficient to see what actually happens, Commissioner. There’s nothing wrong with a picket being there. The last two days have been fine, the employees are doing their work. If people resign, people resign, and that will happen irrespective of what happens with this order, and that is not industrial action. If in two weeks people are taking industrial action we will be back here, the company will have a huge amount of evidence that they will provide to the Commission and we will probably have no ability to argue against them if that is what is happening. But we dispute that it will be happening and it’s not - we say because of the seriousness of these orders, which is different to the previous 127 orders, because of the consequences of them they should not just be ongoing. We would submit that two weeks is appropriate, a month at the most, in our submission. So unless the Commission has any questions?

PN568

THE COMMISSIONER: No, thanks Mr Borenstein.

PN569

MR BORENSTEIN: Thank you, Commissioner.

PN570

THE COMMISSIONER: Mr Winter.

PN571

MR WINTER: I’ve got nothing further to add, Commissioner.

PN572

THE COMMISSIONER: Thanks Mr Winter.

PN573

Ms Roberts?

PN574

MS ROBERTS: We oppose the application and the grant of any orders but we make no admissions or concessions in relation to industrial action is occurring. We support the submissions of Mr Borenstein in relation to the jurisdictional matters and also on the points of orders.

PN575

THE COMMISSIONER: All right, thank you.

PN576

Mr Quigley.

PN577

MR QUIGLEY: Commissioner, on the understanding that if the Commission is unable to hear and determine this matter within 48 hours, that the Commission is obliged to make an interim order, we would submit that there are no public interest issues that would be an impediment to the Commission doing that. Indeed, we would say that the objects of the Act, particularly the object that allows employers and employees to choose the appropriate industrial instrument to cover them, is a relevant consideration in that respect. But on the evidence such as has been put to the Commission, and on the basis that the unions have not sought to bring any evidence of their own, the ABCC’s view is that based on what has been presented on behalf of the applicants, that the Commission as currently constituted is quite entitled to come to the view that it does appear to the Commission that industrial action that is not protected action is threatened, impending or probable and is being organised. Accordingly the ABCC would support the making of orders in the terms being sought by the applicants. I could go on further, Commissioner, but given the time I think it’s appropriate that Mr Rinaldi have an opportunity to - - -

PN578

THE COMMISSIONER: What do you say about the length of the order?

PN579

MR QUIGLEY: If the Commission were to be minded to make an interim order it would be appropriate that, given this time of the year, Commissioner, the provision of the Act is that an interim order would be enforced until the Commission is able to then consider a permanent order. I think that would have to be a matter that was subject to the convenience of the Commission and maybe with some further consideration of what the parties’ view is.

PN580

THE COMMISSIONER: Right.

PN581

MR QUIGLEY: But the Commission would be aware that there have been orders made by this Commission on projects such as this for orders to remain for the duration of the project.

PN582

THE COMMISSIONER: Yes.

PN583

MR QUIGLEY: This, as I understand it, has about six months to go, based on Mr Milne’s evidence.

PN584

THE COMMISSIONER: All right.

PN585

MR QUIGLEY: Thank you.

PN586

THE COMMISSIONER: Thanks Mr Quiqley.

PN587

Mr Rinaldi.

PN588

MR RINALDI: Thank you, Commissioner. Can I just reiterate that it’s important that everyone respects the confidentiality of the name of the employee that I inadvertently mentioned.

PN589

THE COMMISSIONER: Yes.

PN590

MR RINALDI: In my hurry to indicate there was three employees, not two that we’re talking about and of course if there is any repercussions to that employee that will be taken up. So we trust that won’t occur, and I apologise for that error. As to the matter that we’ve heard today and yesterday we do say that very clearly the Commission should be of the view that it is apparent, or in other words it appears to the Commission, that industrial action by an employee or employees is happening. That is, section 491(1)(a) and that the three employees who have not returned to work since Tuesday, two of them since lunch time and one of them since 4 o’clock or so on Tuesday, according to Mr Milne’s direct evidence, are engaging in industrial action. There is no evidence that they have resigned. They could not have resigned, in my respectful submission, because it is most unlikely that their contracts of employment, about which we have no evidence, would enable them to resign on only two days’ notice. It’s only two days since they have not returned to work or since they left the work site and have not returned.

PN591

So they are clearly, in my submission, engaging in industrial action within the meaning of section 420(1) of the Act, by failing or refusing to attend for work; subsection C. My learned friend said that the test of a resignation - this is Mr Borenstein - is evincing an intention no longer to be bound and, with respect, that’s not a correct statement of the law, as the Commission would be aware. That is a statement of a repudiation of a contract. If employees repudiate a contract by saying that they’re resigning and not giving the requisite notice pursuant to the contract, the employer has two options. Can accept that repudiation by agreeing to foreshorten the notice and treating them as terminated, or it can affirm the contract. There’s no evidence that the employer has agreed to foreshorten the notice. The resignation, even if there has actually been a formal resignation tendered, the notice has either not expired or there’s certainly no suggestion that the employer - and there are two separate employers in that case. There are two PrimaWeld employees and there is the one Auscomm employee; that either of those employers has agreed to a foreshortened notice period.

PN592

So the employment has not ended. There may have been a repudiation. We don’t know. There may have been a perfectly proper tendering of resignation, which the notice period is still ongoing, or there may simply have been a statement that “I’m not coming back” and they haven’t come to work. Certainly that is as far as the evidence goes. They have not been back to work since Tuesday afternoon in all three cases, and that is industrial action within the meaning of section 420(1)(c) of the Act, and therefore section 496(1)(a) is made out, because it is clear there are agreements in place; it’s clear it is not protected action; and it is clear that that industrial action is happening now. So in the terms of the Full Court judgments in Transport Workers Union v TNT which my learned friend has referred to on a couple of occasions, and I don’t have multiple copies to hand to you, Commissioner, but it is reported at [2008] FCAFC 26; (2008) 166 FCR 108 and I could email you copies if you wish, as soon as I get back to chambers. The Media Neutral citation is (2008) FC AFC 26.

PN593

In that decision the Full Court said you should ascertain which of the three limbs, if you like, of 496(1) are occurring, and they’re all separated by the word “or” as the Commission will note; and that in some cases only one of them will be, in some cases two will be, in some cases three will be. We submit in this case all three are but the Full Court suggests that you should not take the wording of the section, that is the last line of section 496, and that is “The Commission must make an order that the industrial action stop, not occur and not be organised”, should not take that literally. I find that curious, I must say with respect to their Honours, in that it is a mandatory provision preceded by the word “must” and it is that the industrial action stop, not occur and not be organised. It seems to be a statutory formula that has been laid down for the Commission to follow. But be that as it may, in this case, in my submission, you should make an order that all three of those things occur, or not occur as it may be. That is, that the industrial action stop, not occur and not be organised. The subsequent case, which again I can provide to you - I’m not in a position to do so now but I can provide to you if necessary after - of VHIA v Health Services Union. It is PR981439 (2008) AIRC FV 311, a decision of the Full Bench of which you were a member.

PN594

THE COMMISSIONER: A very distinguishable Bench.

PN595

MR RINALDI: It was, with his Honour the President presiding, on 23 April this year. The Commissioner may recall that one of the issues in that case was that there was a challenge to the order that had been made, the 496 order; a challenge on appeal on the basis that the industrial action that was to stop was not specified.

PN596

MR BORENSTEIN: I’m not making that argument.

PN597

MR RINALDI: My learned friend is not making that argument and I’m grateful for that indication. So that the terms of the order are simply that industrial action stop et cetera.

PN598

THE COMMISSIONER: That’s right.

PN599

MR RINALDI: That is, we say, correct, what the Full Bench has said in that case, and my learned friend is not arguing the point so I’m grateful for that indication. Interestingly and rightly, with respect, the Full Bench noted that the court in TWU didn’t appear to have regard to subsection 9 of 496, that the industrial action does not have to be specified in particularity in the order. So we say the industrial action is happening. We say that the evidence that the Commission has heard relating to the picket line, the caravan, which regrettably is not selling hot dogs. It’s there to exhort people to resign and to engage in industrial action it would appear, and that is clear from the evidence of Mr Milne in a number of cases which he has observed himself directly; and in a number of other cases which he has been told by other employees, whose identity he can disclose to the Commission if required.

PN600

It is clear that not only has some industrial action happened, and we refer to the 28 November events in which some 23 employees did not return to work for the remainder of the day. That’s referred to in paragraph 69 of Mr Milne’s affidavit. The happening of that indicates, in my respectful submission, the likely or probable happening once again of further industrial action, but so does the existing industrial action that is happening that I’ve already referred the Commission to, in relation to the two PrimaWeld employees and the one Auscomm employee. So does the conduct of the union organisers, Mr Lee, Mr Warren and Mr Mooney, indicate that further industrial action by an employee or employees is threatened, impending or probable. Mr Mooney in particular - I don’t think anyone has taken any great issue with the other two organisers’ involvement, but Mr Mooney has engaged in conduct referred to not only in paragraphs 91 and 93 of the witness statement of Mr Milne, but also that which is set out at paragraph 36 of the witness statement, being some almost two weeks earlier on 20 November.

PN601

MR BORENSTEIN: Just in respect of that, that’s one of the paragraphs that I objected to.

PN602

THE COMMISSIONER: Right.

PN603

MR BORENSTEIN: It’s triple hearsay with no source.

PN604

THE COMMISSIONER: Yes.

PN605

MR BORENSTEIN: And that’s not about hot dogs.

PN606

MR RINALDI: Maybe peas and gravy on the side. Well perhaps that’s an appropriate time for me just to repeat the submissions in relation to evidence. The Commission is a practical jurisdiction. It is mandated to be so by the Act. Section 110 and 111 mandates a practical approach and an approach which gives rise to the Commission informing itself as it sees fit in order to do justice between the parties. In a matter like this where the provision itself, that is section 496, is a mandatory provision, we all understand the legislative intention behind it to prevent industrial action that is not protected action occurring, or stop it if it is occurring, and stop it being organised. In those circumstances there is no warrant for a narrow or pedantic or legalistic or technical approach to the rules of evidence, which do not bind the Commission anyway, pursuant to the express terms of the Act.

PN607

Even more so where it’s open to the respondents to call their own evidence. They have not done so. We know that the Messrs Lee and Warren are in Melbourne this afternoon at a meeting, and have been this afternoon, and could have been here to give evidence. They chose not to. Obviously one can draw a Jones v Dunkel inference in relation to that, that their evidence would not have assisted the respondents. That’s not a rule of evidence. That’s a rule of practice about making conclusions. It’s not about excluding or including evidence, and that is a practical rule which is very much within the Commission’s approach mandated by section 110 and 111 of the Act.

PN608

So there is ample evidence upon which you can conclude that it appears to the Commission that industrial action is being organised by the three unions, through the agency of the three named organisers. In those circumstances, Commissioner, in my submission there should be an order in the terms of the last line of section 496(1), that is that the industrial action stop, not occur and not be organised. All three. I should also say in relation to evidence, obviously there is always the ability of the Commission to weigh the evidence and to give it such weight as is considered appropriate, and that’s entirely consistent with the approach the Commission adopts in accordance with section 110. But there is, as usual in a case like this , the practical problem which really can’t be ignored, that you’ve got a project happening out near Orbost. It’s five hours drive away. You’ve got people here giving evidence, such as Mr Milne, who can’t be out at site at the same time. He must rely on information that he is provided by people who are out at site. That’s really incontrovertible, and the people out at site can’t be here. So you need somebody at site, you need somebody here. They can’t be in two places at once, and it’s inevitable that there will be some hearsay, in the broader sense of that traditionally used word, that should be admitted and must be admitted in order to find out what is actually happening, and to get to the truth of the matter.

PN609

That’s exactly why the Act is the way it is, in my submission, and why the Commission is not bound by the rules of evidence, because this Commission is often confronted with matters occurring on construction sites five hours away and the like. In any event even under section 75 of the Evidence Act where the source is disclosed, and if the Commission were bound by the rules of evidence, it is admissible. Hearsay is admissible and we are in a position to, via Mr Milne, provide the Commission with the source. Obviously if the Commission wishes to have that information it is able to do so. If it then wishes to check with the people themselves, the sources, by telephone it could do that. We accept that. Just on Mr Milne being previously found to have been an unreliable witness by Senior Deputy President Watson, perhaps - - -

PN610

THE COMMISSIONER: Williams.

PN611

MR RINALDI: Williams, sorry. Perhaps that does not need me to dwell on it for long, but it’s obvious that it’s only one occasion. One swallow does not a summer make, and it doesn’t imply that somebody is habitually unreliable if somebody says they are once. You can’t use that as some sort of similar fact evidence, which has its own rules under the Evidence Act as required - it can complicate it - without a factual basis to say “He’s doing it again. He’s at it again. It’s the same old unreliability here”. There is no evidence to that effect whatsoever.

PN612

THE COMMISSIONER: There is a reasonably crude joke which I’m not going to say, but it relates to somebody who builds houses. They’re not called a house builder. One particular guy builds fences, he’s not a fence builder; makes roads, he’s not a road maker. But he’s branded for the rest of his life because he did one indiscretion. It’s a good joke. You should find it some time.

PN613

MR RINALDI: I look forward to hearing it one day. But yes, I think that’s a fairly obvious point and we do urge you to give full weight to Mr Milne’s evidence. There’s no reason to doubt the veracity of what he has said today. The question will be weighing in circumstances where some of it is based on other people’s instructions. But I understand, as you have already said Commissioner, that you will be making your decision primarily on what he has personally observed and seen and heard and done, and much of his statement goes to those matters. As I said before, in my submission there’s no relevance of the Briginshaw principle in a case like this, that my learned friend somewhat tentatively advanced the submission. I don’t know that I need to dwell on that any more. This is not a serious misconduct dismissal case, for example. I also note that this matter is interlocutory so that if section 75 of the Evidence Act had application, which it does not, the hearsay would be admissible in any event.

PN614

As to the form of the order, Commissioner, we are grateful to my learned friend who has already expressed his gratitude to Mr Levin while he was out of the room, for providing the draft. That has been a useful way to see what my learned friend wishes to put, to see a marked-up version of it. Paragraph 2(c), Commissioner, the issue about current employees only, being restricted to current employees only; in my respectful submission this whole issue has arisen only because of my instructing solicitor’s thoroughness in the way he has drafted the order. Normally one would see the parties bound to be all employees of company A, B and C. That clearly will cover future employees, and on a building site in particular, a construction site, the workforce will be changing on a regular basis. There has already been evidence from Mr Milne that the project is in the relatively early stages and will ramp up in the next few months, and will last for at least another six months.

PN615

These orders habitually and typically and necessarily are made referable to, and binding upon, employees. Just employees, and the only reason this matter has been flagged to my learned friend’s attention, and he has become perhaps slightly excited about it, is the use of the “both now and in the future” phrase, which is strictly unnecessary. But which makes it clear that it does cover future employees and of course future employees will be informed of the order because, in accordance with paragraph 5(b), there will be a copy of the order on the noticeboard, and anyone who comes to work at the site will be aware of the order and that they must comply with it, the same as everyone else. So there’s not a problem of people not knowing about it at the time they start their employment, or during their employment. They will know about it. They will be bound by it. It’s a futile order if it does not bind both current and future employees.

PN616

As I say, normally that’s covered by the single term employees and it’s inevitable that during the duration of the order, which is normally stated at the end of the order, any employees whether they were there at the beginning of that duration or at a later stage during that period are covered by it. So it’s really a non-issue in my respectful submission. The reason that the order would be utterly futile if it was limited to current employees is that as soon as we have another employee, a new employee, which is probably going to be tomorrow on a construction site like this, that employee is not bound theoretically, according to Mr Borenstein, and we start all over again, and we’re back here again for yet another one; and the next day we’re here again for another one, and the Commission gets clogged with section 496 applications on this one project. That’s clearly not what is intended by the legislature. Clearly the idea is the Commission, if it’s making the order as it’s bound to do if it is apparent that the conditions are fulfilled, as we say they are in this case, the Commission then specifies a period for which the order applies, and it covers any employees during that period.

PN617

So in my submission, Commissioner, 2(c) should either stay as it is in the draft that we have provided with the application, or should simply say “All persons employed by” which will be understood to mean as at today’s date or at any time during the duration of the order. Mr Borenstein submitted that subparagraph 4(a)(ii) should be deleted, and so should 4(a)(iii). In my submission those are entirely standard orders in these matters. To work in accordance with the agreements is a standard order, and to not interfere with the performance of work by other employees is a standard order. There is no reason why you should not make the order in those terms. He referred to, I think, the TWU case in this regard and I think one could say, taking a step back, how much they add to (i) could be a matter of debate, and (i) is obviously the key provision.

PN618

But the Full Court in TWU was very strong in pointing out that where a power is conferred the exercise of that power can involve the exercise of anything that is ancillary or supportive of the power. They referred to a Latin maxim at paragraph 37 of the decision of Gray and North JJ, which I won’t repeat because it’s even more difficult than most Latin maxims, and I’ll spend a long time with the transcriber afterwards, otherwise. But the translation is given by their Honours as when the law gives anything to anyone it gives also all those things without which the thing itself would be unavailable. So these are classic provisions that are in an order like this, which are supportive of an ancillary to (i), and they are not controversial and they should not be excised from the draft order. Mr Borenstein always wants me to read more of the case found in other cases.

PN619

MR BORENSTEIN: Well they discuss the whole thing and then they somewhat limit it, though, in 496(1).

PN620

MR RINALDI: He would refer you to paragraph 39. He is saying at the end of that, the conclusion is:

PN621

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

PN622

That seems an entirely uncontroversial statement. It does not alter what their Honours have said about the Latin maxim. Now if the Commission is minded - and it should not delete (iv) and (v) for the same reasons. They are in the same category and should remain in the order. Again, they’re standard types of provisions. But the proposed 4C that Mr Borenstein has urged upon you Commissioner is not standard. It takes a common law definition of, in effect, peaceful picketing from a New South Wales Supreme Court decision and puts it into the order. It’s not necessary and it does not assist, and if anything it would only confuse and risk emboldening persons on behalf of the unions to sail close to the wind, if not breach the order. In my submission that should not be made.

PN623

If you’re against me on that, Commissioner, and you are minded to make such an order, there should be a practical requirement added to it and that is that in terms of assembling outside a workplace and making known to others about the dispute and so forth, that should not occur any closer than 50 metres from the entrance to the work site. So it has got to be removed and normally one would see, for example, in an intervention order something like 200 metres, or an injunction. But we’re prepared to accept 50 metres from the entrance to the work site so that there is not the ability to coerce by the mere presence of people, however apparently peaceful or persuasive they are seeking to be. In the light of the history of this matter where there has been abusive and intimidatory and coercive language and tones used towards the employees, the very existence of the people at an allegedly peaceful picket at the gate could have the effect of threatening, coercing, intimidating or harassing. It’s because of what has gone before that it can change the character of what might otherwise appear to be a peaceful picket, and therefore if the Commission is minded to order in terms of 4C, which in my submission it should not, but if it does wish to it should limit that to not closer than 50 metres from the gate to the site.

PN624

Excuse me, Commissioner. My instructing solicitor points out that for clarity and so that the order not be said to be too wide at a later date, it would be appropriate to define in paragraph 3 where we have the first definition, Commissioner, of Patricia Baylene Plant Project, at the end of that after the words “East Gippsland” to insert the site in inverted commas. The reason for that is to then limit the operative provision in paragraph 4 to the site. So we define that as the site in the definitions paragraph 3 and then we would in 4A after “each employee must” add the words “in respect of work at the site”.

PN625

THE COMMISSIONER: This is your draft order?

PN626

MR RINALDI: On our draft order, yes. We will probably make it a capital S site just for clarity.

PN627

THE COMMISSIONER: So where would the provision “the Site” go?

PN628

MR RINALDI: At the end of the defendant of Patricia Baylene Plant Project at the beginning of paragraph 3.

PN629

THE COMMISSIONER: Right, 3.1.

PN630

MR RINALDI: So after “East Gippsland” (the Site).

PN631

THE COMMISSIONER: All right.

PN632

MR RINALDI: Then in 4A the first line “Each employee must in respect of work at the Site” and again in 4(b).

PN633

THE COMMISSIONER: Hang on, just slow down.

PN634

MR RINALDI: Sorry. “In respect of work at the Site”.

PN635

THE COMMISSIONER: Right.

PN636

MR RINALDI: In 4(b) the same, before the colon after “and Mooney must”, insert “in respect of work at the Site”.

PN637

THE COMMISSIONER: Right.

PN638

MR RINALDI: Yes, and that avoids the difficulty that was referred to by the Full Court in TWU at paragraph 54, where there was an order directed to the entire union and all of its officers, employees, agents and delegates, without having any link to the site or the particular project or place of the industrial action. Commissioner, as to the duration of the order we have heard the evidence of Mr Milne that he understands it’s a six-month project from this time on. We all know it’s notorious that construction projects almost always go over time. It would be quite unreasonable to limit it to two weeks, as my learned friend has suggested, or a month, and this is on the basis, Commissioner, that you’re not making an interim order. You’re making an order. If you’re making an interim order that’s a different matter; it is interim in character. If you’re making an interim order I would agree, respectfully, with what Mr Quigley said, that given we are running into Christmas two weeks is too short - well probably four weeks is too short because you’re back on New Years Day then. It might be six weeks or something of that order, if it were an interim order.

PN639

But of course the Commission can determine the application fully perhaps during that time. Alternatively the Commission could, and in my respectful submission, should in this case because the facts are clear- there is clearly enough for it to be apparent to the Commission that the matters referred to in section 496(1) are made out - the Commission can and should make a final order. It should make it for the period of 12 months that we have sought in the order. Our latest instructions are that the project is expected to go for in the order of 10 months, at least eight to 10 we’re instructed. To be safe, in my respectful submission, it should be a 12-month order but it certainly should not be as short as six months and it should not be as short as two weeks or a month. That’s quite inappropriate and quite ineffective. Beyond that, Commissioner, those are the submissions for the applicants unless you have got any questions.

PN640

THE COMMISSIONER: No, thank you.

PN641

MR RINALDI: If the Commission pleases.

PN642

THE COMMISSIONER: The Commission indicated to the parties that if it were inclined to issue an order based on the application under section 496 of the Workplace Relations Act, it may issue an interim order or it may issue a full order; but the order would simply be based on direct observations, conversations or actions relating to Mr Milne, arising out of his statement presented to the Commission, and would not be based on what may deem to be hearsay. The Commission is satisfied that the provisions that give rise to the Commission issuing an order under section 496(1)(a) does not arise. The Commission is not satisfied that industrial action is happening in regards to those employees that it is said they don’t wish to attend or won’t be attending. However the Commission is satisfied that section 496(1)(b) and (c), that is industrial action is threatened, impending or probable and (c), is being organised; those requirements of the Act have been met and that is based purely on the - as the Commission has indicated - observations, conversations and actions of Mr Milne.

PN643

In regards to those parts of Mr Milne’s statement where they are conversations with other people which have given rise to objections from the respondents in the matter, the Commission would require that Mr Milne provide under a sealed envelope marked private and confidential to the Commission by 5 pm next Wednesday, that’s the 10th - sorry, next Thursday the 11th, to provide to the Commission those names of those employees identified in his statement, and which paragraph they’re identified with, along with a contact number of those employees. Once the Commission has that material it may decide to contact the employees direct and confirm or have them deny those parts of Mr Milne’s statement that are attributed to them. Once the Commission has that information it may or may not raise that information with the parties directly, or it may keep that information until the matter is relisted.

PN644

The order that will flow from today is an interim order only. The Commission did give consideration to the draft order proposed by the respondents in the matter, but has chosen to accept the proposed draft order by the applicant; except that it is, as indicated, a draft order. In regards to the requirements of the Act that give the Commission satisfaction to issue the order, the industrial action that is being threatened, impending, probable or organised is action that would give rise to those employees being in breach of section 420, Meaning of industrial Action, (1)(c), which may give rise to the employers having a refusal by employees to attend for work. That, in the Commission’s view, is the intent of that industrial action.

PN645

In regards to 4.2E the Commission would require the timeframe in that, that is the unions to provide in writing to the companies by 5 pm on 5 December, to advise what steps they have taken to be in compliance with this clause. In regards to a copy of the order being placed on the notice boards, in regards to 5B - 5B in the Commission’s draft order is:

PN646

Upon each of the employees if (1) a copy of this order is placed on the notice boards at the Patricia Baylene Plant usually used for the purpose of communicating to employees by -

PN647

I seek some assistance from the applicants in the matter as to the appropriate time. I would assume tomorrow would be the appropriate date. It’s the time that I’m seeking.

PN648

MR RINALDI: Midday tomorrow, Commissioner.

PN649

THE COMMISSIONER: By 12 noon on the 5th. In regards to the term and date of the order, again I seek some assistance from the parties on the time because Orbost being a five-hour drive, it’s no good saying the order will take effect from the first of the shift tomorrow, when I would suspect it would be extremely difficult for people to do that. It has got to be placed on the notice board.

PN650

MR RINALDI: Yes. I would have thought 12 noon, the time that it goes on the notice board.

PN651

THE COMMISSIONER: Well give them time to read it, so we’ll say 12.30.

PN652

MR RINALDI: If the Commission pleases.

PN653

THE COMMISSIONER: Unless the parties tell me differently, I’m not necessarily bound by issuing an order for a period of weeks; is that correct? The Commission can stipulate its own time and date if it wishes.

PN654

MR QUIGLEY: Yes, indeed.

PN655

MR RINALDI: Yes.

PN656

THE COMMISSIONER: All right, the order shall remain in force until 5 pm on 9 January 2009 at which time, as the Commission indicated earlier, it may decide to discuss with the parties the material that it has been able to adduce from the statements of Mr Milne and conversations, if it chooses to have those conversations with those employees attributed to those parts of Mr Milne’s statement, or it may decide to hear further submissions in regards to whether a final order should follow.

PN657

MR RINALDI: So I would apprehend from that there may be a hearing prior to 5 pm on the 9th?

PN658

THE COMMISSIONER: There may be, yes.

PN659

MR RINALDI: Yes.

PN660

THE COMMISSIONER: But most certainly this interim order is intended to go to 9 January.

PN661

MR RINALDI: Yes.

PN662

THE COMMISSIONER: But there may be a further hearing in between that.

PN663

MR RINALDI: Yes.

PN664

THE COMMISSIONER: It depends on the information that the Commission gathers.

PN665

MR RINALDI: Yes. Not that it’s critical, but for myself I will be interstate until - I will be back on 7 January. So we would probably request that if it was going to happen, if there was going to be any hearing, it would be closer to the 9th rather than earlier. But be that as it may.

PN666

MR BORENSTEIN: Mr Levin can handle it.

PN667

MR RINALDI: I’m sure Mr Levin is going somewhere much more exotic than I am.

PN668

THE COMMISSIONER: He has a reputation for that.

PN669

MR LEVIN: East Hawthorn.

PN670

MR RINALDI: East Hawthorn? That’s pretty exotic. There may be some other consequential amendments such as the order being known as the interim order in number 1. So yes, I would suggest the insertion of the word interim before order as number 1, Commissioner.

PN671

THE COMMISSIONER: Right.

PN672

MR RINALDI: Then just in terms of the practicality for what the respondents must do under 4(b) of the order, and in particular 4(b)(iv), that is immediately advise the relevant delegates and members and the employees. Given the time, that should have a time rather than the word immediately. We suggest that the immediate part will remain in respect of advising the delegates. That should not be too difficult, a phone call; and members - - -

PN673

MR WINTER: Could I just question in relation to delegates, we have got no delegates on site.

PN674

MR RINALDI: No, and it probably should read organisers in fact, and I was just going to say that as I read it out. Well there may be other organisers, I don’t know.

PN675

UNIDENTIFIED SPEAKER: Well, does Mr Milne know?

PN676

MR RINALDI: Is there any problem with organisers including Warren, Lee and Mooney?

PN677

MR WINTER: Are there any others you have in mind?

PN678

MR RINALDI: Not that we’re aware of. The three of them.

PN679

THE COMMISSIONER: What if it says “Immediately advise the relevant CEPU, AWU and AMWU organisers and/or delegates including”, does that - - -

PN680

MR RINALDI: That’s fine with us. It may not be - - -

PN681

THE COMMISSIONER: If there are delegates there are. If there are not, there are not.

PN682

MR WINTER: But there are no delegates who are members, so if there are no members there are no delegates.

PN683

THE COMMISSIONER: No, no, we’re talking about on that side of the fence, not that side of the fence.

PN684

MR RINALDI: Well the word relevant is already there, but at the end of the day I think we’re happy. As far as we are aware it’s only Warren, Lee and Mooney. We can limit it to those three.

PN685

THE COMMISSIONER: So we take out organisers and/or delegates?

PN686

MR RINALDI: Why don’t we change “delegates” to “organisers” and rather than add the word “including” put “being”, otherwise we’ve just got three names that don’t have a link to the unions. Then because of the time it will take to inform the employees, if we had after the word “and” in the second line of (iv) “and,” so you have got “and members and”, I’m sorry. Are you with me, Commissioner? So you have got “Warren, Lee and Mooney (and members and, by 12 noon on 5 December 2008, the employees, by written notice that.

PN687

THE COMMISSIONER: Right.

PN688

MR RINALDI: Then we have 5 pm on the 5th of the 12th as the date in (v).

PN689

THE COMMISSIONER: Yes.

PN690

MR BORENSTEIN: Just for clarification, do we have to give our organisers written notice?

PN691

MR RINALDI: Just advise them.

PN692

MR WINTER: Who are the employees?

PN693

MR BORENSTEIN: The employees are the employees under the - - -

PN694

MR WINTER: Or the employees - - -

PN695

MR BORENSTEIN: No, the employees are employees.

PN696

MR WINTER: The employees of the company or the employees of the union?

PN697

MR BORENSTEIN: The employees of the company.

PN698

MR RINALDI: 2(c) defines employees. The employees are the second, third and fourth applicants.

PN699

MR BORENSTEIN: It’s not clear who we advise by written notice.

PN700

MR RINALDI: Yes, I can see the point that Mr Borenstein is making. So the intention is that you advise organisers and members, and that does not have to be in writing, and the employees in writing. Now if it’s not clear enough we can revisit it.

PN701

THE COMMISSIONER: All right. We need to go through that because my associate is doing all that.

PN702

MR RINALDI: So what we’ll end up with is - so back in (iv) of number 4.

PN703

THE COMMISSIONER: Which in my draft order is 4.2(d).

PN704

MR RINALDI: Right. So we have after “Warren, Lee and Mooney) and members and, by 12 noon on 5 December 2008 the employees”, now how do we specify the written notice?

PN705

MR WINTER: When are we supposed to notify the members, even though I don’t think there are any?

PN706

MR RINALDI: Immediately advise the members, that’s just verbal. Perhaps it would be clearer if we put anther bracket after “members (and, by 12 noon on 5 December 2008, the employees by written notice)”.

PN707

MR BORENSTEIN: Commissioner, I just don’t understand how we’re supposed to notify members tonight or whenever.

PN708

THE COMMISSIONER: Yes.

PN709

MR RINALDI: All right, we can put them in with the employees if you like?

PN710

MR BORENSTEIN: Yes.

PN711

MR RINALDI: By 12 noon. So we’ll put the bracket after “Mooney”. The closed bracket after Mooney will then be an open bracket “and members and the employees”. In fact “and by 12 noon” should be before “the members”.

PN712

THE COMMISSIONER: Yes.

PN713

MR RINALDI: “And by 12 noon on 5 December 2008, members and the employees by written notice)”.

PN714

MR WINTER: Can I just clarify one point? Are they requiring us to give the employees notice? We don’t know their names or addresses.

PN715

MR RINALDI: Yes, we’re just addressing that.

PN716

MR WINTER: If you want to give us their names and addresses we may be able to do that.

PN717

UNIDENTIFIED SPEAKER: We’ll visit them personally.

PN718

MR WINTER: Yes.

PN719

MR RINALDI: The easiest way would be for the respondents to provide those letters to us for members and employees, to Mr Levin it’s suggested, my instructing solicitor, by 11 am and we’ll ensure that it goes to the employees by 12 noon by placing it on the notice board.

PN720

MR WINTER: Well I can’t agree to that, Commissioner. I’ve got no authority on behalf of the union to start writing letters to employees. It’s a bit of a joke. If they’re going to put a notice up, Commissioner, let them put the notice up. The employees will see the notice. For us to be trying to write letters to employees we don’t even know, who aren’t members of the union, it’s a bit of a joke. If they want a letter authorised by the union, well it will have to go back to committee management.

PN721

THE COMMISSIONER: Why can’t we do this; why can’t the order say “immediately advise the relevant CEPU, AWU and AMWU organisers, being Warren Lee (Warren Lee and Mooney) by 12 noon on 5 December 2008 that any direction, advice, or authorisation for its members or eligible members to engage in industrial action” et cetera, et cetera full stop?

PN722

MR RINALDI: So we just take out the members and the employees?

PN723

THE COMMISSIONER: Well yes, and written notice, because they can advise them verbally by phone. So you take out “and members” and “employees” and “by written notice” and then you start that “any direction, advice or authorisation”. I mean, the company - I accept the point the union is making. They don’t know who the employees are, what their names are; they’re not their members as far as they know and I’m sure that if one of them went up to give them the notice in the car as they were driving through, they might get accused of breaching the order.

PN724

MR RINALDI: Yes, and indeed we’ve got, I notice, in 4.2 as it now is in your draft order, Commissioner, Mr Warren, Mr Lee and Mr Mooney immediately advising themselves but that’s probably the quickest way to be advised, I suppose. My concern is that the members and employees should be notified.

PN725

THE COMMISSIONER: Well they will be. They will be notified by the notice being - - -

PN726

MR RINALDI: By the service of the order. Yes.

PN727

THE COMMISSIONER: The order going on the notice board.

PN728

MR RINALDI: Yes.

PN729

THE COMMISSIONER: I mean, there is nothing preventing the company as well from waiting till 12.30 and presenting it to them manually if they wish.

PN730

MR RINALDI: Yes.

PN731

MR BORENSTEIN: Is subparagraph (e) similar to that? Is that really required? I mean, it’s the same thing. We’re writing to the employees. We don’t know who they are but it requires us to take positive steps. I mean, again, if we wait outside and try and approach them as they drive in, we’re going to be potentially breaching the order.

PN732

MR RINALDI: Which one is E?

PN733

MR BORENSTEIN: E is (v).

PN734

MR RINALDI: Five.

PN735

THE COMMISSIONER: I think it’s a reasonable point. Again we’re back to the same issue of what is in E?

PN736

MR RINALDI: I think it’s again a standard provision.

PN737

THE COMMISSIONER: I know it’s a standard provision.

PN738

MR RINALDI: Yes.

PN739

MR WINTER: But it’s a standard provision in relation to members.

PN740

THE COMMISSIONER: That’s right.

PN741

MR RINALDI: Yes. It’s really duplicating the service of the order.

PN742

THE COMMISSIONER: I’ve got to say it’s a bit superfluous.

PN743

MR RINALDI: Under paragraph 5, yes. So we can take out what was (v) or is E in your draft, Commissioner.

PN744

THE COMMISSIONER: Yes.

PN745

MR RINALDI: We take out members and employees in D.

PN746

THE COMMISSIONER: Yes.

PN747

MR RINALDI: And “by written notice”. So it just reads “immediately advise” close the bracket after Mooney, “that” in D.

PN748

THE COMMISSIONER: Yes.

PN749

MR RINALDI: And we have the date of 12 noon 5/12/08 in 5(b)(i) or whatever that now is numbered.

PN750

THE COMMISSIONER: Number 6. Sorry, you’re right yes.

PN751

MR RINALDI: A copy of the order on the notice board.

PN752

THE COMMISSIONER: Yes, 5(b)(i).

PN753

MR RINALDI: Yes, and take effect from 12.30 in number 6.

PN754

THE COMMISSIONER: Yes.

PN755

MR RINALDI: Tomorrow, until 5 pm on 9 January 2008.

PN756

THE COMMISSIONER: Yes.

PN757

MR RINALDI: I think that’s probably all the tidying up that is required.

PN758

THE COMMISSIONER: Mr Rinaldi can you just read paragraph 4.2(d)?

PN759

MR RINALDI: Yes.

PN760

THE COMMISSIONER: As you understand it.

PN761

MR RINALDI: Yes.

PN762

THE COMMISSIONER: So that we’ve got it correct. Yes, 4.1(d) will be, notwithstanding the apparent duplication in the three individuals informing themselves, but I don’t see any problem with that:

PN763

Immediately advise the relevant CEPU, AWU and AMWU organisers (being Warren, Lee and Mooney that any direction, advice or authorisation.

PN764

THE COMMISSIONER: Yes.

PN765

MR RINALDI: So the next subparagraph comes out entirely, which was the old E.

PN766

THE COMMISSIONER: Yes.

PN767

MR RINALDI: “Take all steps that are necessarily reasonable and available” to be deleted in its entirety. Then we’ve just got those later dates of 12 noon tomorrow and then 12.30 in six. Excuse me, Commissioner, there might be one other. Whilst I may not respectfully agree with their Honours in the Federal Court about the interpretation of 496(1) and the type of order you can make, obviously we are somewhat bound by what they say and it would, in light of what they say, be appropriate to - because you, Commissioner, are not satisfied that it appears that industrial action is happening, in the order at 4.1 it would be on your draft. I’m not sure whether you’ve called it (a) or (i) after that, “be immediately stop, not commence or recommence”. We need to delete the words “immediately stop” because - - -

PN768

THE COMMISSIONER: All right, yes.

PN769

MR RINALDI: You haven’t found that action is happening.

PN770

THE COMMISSIONER: Yes.

PN771

MR RINALDI: And (b)(i) is the same, as Mr Borenstein helpfully points out, or 4.2(a) it might be in your draft.

PN772

THE COMMISSIONER: Yes.

PN773

MR RINALDI: “Stop” gets deleted from that.

PN774

THE COMMISSIONER: All right.

PN775

MR BORENSTEIN: 4.1(a).

PN776

THE COMMISSIONER: 4.1(a) where it says “immediately stop”.

PN777

MS ROBERTS: So just take out “immediately stop”?

PN778

THE COMMISSIONER: Yes.

PN779

MR RINALDI: And the comma.

PN780

MS ROBERTS: Yes.

PN781

MR RINALDI: Then in 4.29(a) it’s just “stop” and the comma.

PN782

MS ROBERTS: Yes.

PN783

MR RINALDI: Thanks to my instructing solicitor, I think we’re just about there. Thank you, Commissioner.

PN784

THE COMMISSIONER: Mr Borenstein, do you - - -

PN785

MR BORENSTEIN: That was easy..

PN786

UNIDENTIFIED SPEAKER: Ready to go.

PN787

THE COMMISSIONER: Ms Roberts, do you - - -

PN788

MS ROBERTS: No.

PN789

THE COMMISSIONER: No.

PN790

THE COMMISSIONER: Is that it?

PN791

MR RINALDI: Thank you, Commissioner.

PN792

THE COMMISSIONER: All right, thank you. The Commission will stand adjourned.

<ADJOURNED ACCORDINGLY [5.34PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

COLIN RAYMOND MILNE, RECALLED ON FORMER OATH PN5
EXAMINATION-IN-CHIEF BY MR RINALDI, CONTINUING PN5
THE WITNESS WITHDREW PN124
COLIN RAYMOND MILNE, RECALLED ON FORMER OATH PN203
EXAMINATION-IN-CHIEF BY MR RINALDI, CONTINUING PN209
CROSS-EXAMINATION BY MR BORENSTEIN PN216
CROSS-EXAMINATION BY MR WINTER PN264
THE WITNESS WITHDREW PN364