C2013/4165, Transcript of Proceedings [2013] FWCTrans 448 (3 June 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1048108-1

COMMISSIONER ROBERTS

C2013/4165

s.418 - Application for an order that industrial action by employees or employers stop etc.

Stratford Coal Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(C2013/4165)





Sydney

2.02PM, FRIDAY, 3 MAY 2013

PN1

THE COMMISSIONER: Good afternoon. Mr Sebbens, your appearance?

PN2

MR SEBBENS: Yes. Thank you, Commissioner. I seek permission to appear for Stratford Coal Pty Ltd. With me is MR TOMLINS in the gallery, and MS TAYLOR is here beside me, the Human Resources Manager.

PN3

THE COMMISSIONER: Yes, thank you.

PN4

MR K ENDACOTT: If it pleases the Fair Work Commission, Endacott, initial K, appearing for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division, Northern Districts Branch. I am an employee of the union and with me at the Bar table, is a MR THOMPSON, initial S, who is a vice president of the Northern Districts Branch of the Mining and Energy Division of the CFMEU, and further to Mr Thompson's right is a MR MARK HUDSON, who is an employee of the applicant. He is also the site lodge president. Further to Mr Hudson's right is a MR McWILLIAMS, initial J, who is also a vice president of the CFMEU Mining and Energy Division, Northern Districts Branch.

PN5

Further, Commissioner, I appear in these proceedings as a representative for a Warren James Becks, Douglas Williams Blanch, Kenneth Robert Hoarer, David Bradbury, Ian Kenneth Brown, Adam Collade, Jeremy Malcolm Coombs, Bradley Troy Cooper, Keith Alexander Curtin, Scott William Edwards, Ronald J Farley, Matthew Gordon Groves, Mark Alexander Hudson, Wayne John Jones, David Norman Kelner, Paul Raymond Kelner, Justin Lloyd, Kenneth Francis Maurer, M-a-u-r-e-r, Garvin Alan McDonald, James Moir, that is M-o-i-r, Kelvin Dallas Nelson, John Harrod Redman, Damien Maxwell Tinder, Timothy Andrew Walker, Paul Phillip Wenham, W-e-n-h-a-m, Derrick Woods and a Ronald James Zimmerman.

PN6

Now, we understand, even though the imprecise nature of the description that was on the application as those others that were covered and we understand that they are the persons that we have accepted that service has been given on us to represent in these proceedings. We understand that is the total of the persons that would fall within the orders sought and certainly if we are at error because the individuals haven't been identified by name, then I would ask my client - I would ask the applicant to raise that so we can make attempts to contact them and get some instructions from them. If not - - -

PN7

THE COMMISSIONER: What form of authority do you possess from those named - - -

PN8

MR ENDACOTT: We don't possess any authority but as it - as indicated in the application - - -

PN9

THE COMMISSIONER: I'm sure you possess authority, you don't possess some form of any written instrument though.

PN10

MR ENDACOTT: That's correct, yes.

PN11

THE COMMISSIONER: Yes.

PN12

MR ENDACOTT: So today we are - as I understand the members have been spoken to and they understand we're representing them in these proceedings.

PN13

THE COMMISSIONER: And those named persons are members of the CFMEU?

PN14

MR ENDACOTT: Well, we understand they are the persons that would fall in the description of employees of Stratford Coal, Stratford, who are members of the Construction Forestry and Mining, Energy Union, CFMEU, engaged in classifications under the Stratford Federal Coal CHPP Operations Certified Agreement 2008.

PN15

So we understand they're the category. We note that service has been substituted on us for them and, therefore, we don't want any confusion about who - because there was no names attached to them - - -

PN16

THE COMMISSIONER: Yes.

PN17

MR ENDACOTT: - - - who we understand we're speaking for.

PN18

THE COMMISSIONER: Anyone else with their phone not on silent, at least, put it on silent, please. If it is - - -

PN19

MR ENDACOTT: And - - -

PN20

THE COMMISSIONER: - - - just hang on, Mr Endacott, please. Even if it is on silent keep it away from the microphones, please, it annoys the reporter.

PN21

MR ENDACOTT: And further we - further we say that the Commission - the Fair Work Commission should not give permission - - -

PN22

THE COMMISSIONER: We're all a bit tired today, aren't we, Mr Endacott.

PN23

MR ENDACOTT: Yes, we are. And obviously once they've canvassed those material issues that must be considered by the Fair Work Commission then we'll respond to those accordingly.

PN24

THE COMMISSIONER: Yes. The onus is on Mr Sebbens to justify his appearance in the light of your objection. Mr Sebbens, justify, please?

PN25

MR SEBBENS: Thank you, Commissioner. Just in relation to - - -

PN26

THE COMMISSIONER: What's the relevant section again?

PN27

MR SEBBENS: 596.

PN28

THE COMMISSIONER: 596. Thank you.

PN29

MR SEBBENS: I can deal with that substantively. Just in relation to that point Mr Endacott raises about employees - - -

PN30

THE COMMISSIONER: No, you won't get a chance to - if I don't grant you permission you won't be able to talk about it so - - -

PN31

MR SEBBENS: All I was going to say - - -

PN32

THE COMMISSIONER: - - - let's finish permission first.

PN33

MR SEBBENS: Sure.

PN34

THE COMMISSIONER: And we'll see whether you have a right to address me on it.

PN35

MR SEBBENS: Thank you, Commissioner. I was just going say I'd need instructions was all - - -

PN36

THE COMMISSIONER: No. Just do it this way.

PN37

MR SEBBENS: Thank you. Section 596 - if I can just take you to that provision and to make the submissions about why I ought to be given permission by the Commissioner to appear on behalf of the applicant Stratford Coal Pty Ltd. You will see the relevant test is at 596(2) that refers to the FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWC only if - and then there are three paragraphs, which are listed (a), (b), (c), colloquially or paraphrasing those: (a) concerns the complexity of the matter; (b) concerns whether or not it would be unfair just in and of itself for the applicant not to be given permission to be represented by legal representative; and (c) then concerns whether or not it would be unfair as compared between the two parties to this proceeding.

PN38

If I can take you to each of those paragraphs, and I say that this discretionary power only requires the Commission be satisfied in relation to one of those paragraphs. You'll see between each paragraph there is an "or" not an "and" and, therefore, if you are satisfied with any of those paragraphs, permission could be granted - - -

PN39

THE COMMISSIONER: I don't think that's controversial. So let's just get to it, eh?

PN40

MR SEBBENS: So in respect of paragraph 596(2)(a), the complexity of the matter, I submit that the matter involves what is effectively a complex question of law. There may not be complex matters of fact although, obviously, the proceedings will bear out whether or not that's the case, but prima facie it does not appear to my client there are complex questions of fact, but certainly in respect of its application and its view in respect of the adequacy of the notice served on 30 April 2013, and whether or not it meets the requirements of section 414(6). We say that is a matter which is complex in this particular circumstance due to the nature of the notice and they way in which it is expressed and then having to analyse that against the relevant provision.

PN41

It also - and we would take you to these matters in the fullness of the hearing - it does require a consideration of the number of cases of the Full Bench of the predecessor to this Commission and also to the Full Court of the Federal Court and the single Members, in relation to what is the meaning of section 414(6), what would be an adequate notice under that section and including case law concerning predecessor provisions under the Workplace Relations Act section 170MO, and then as it was renumbered section 441(6).

PN42

So we say those matters would be able to be easily and efficiently worked through if permission were given to me as a legal representative for Stratford. The Commission would be assisted in working through those matters officially by me representing Stratford. If representation were not permitted that, of course, would not be something that - and I'll go to this in more detail in respect of paragraphs (b) and (c) - that would not be something that those of us who are here today from Stratford or the union with which it is a part - had familiarity with, they would not be able to efficiently work through those matters with you or to assist you in as meaningful way as I would or any legal representative would if permission were granted.

PN43

In respect of (b) the unfairness to the applicant in and of itself, because it is not able to represent itself effectively, we say that officers of Stratford Coal, particularly, those officers who are here today in the body of the Court, do not have relevant industrial relations advocacy experience. The human resources manager who is here with me at the Bar table, Ms Taylor, is only a recent appointment to Stratford. She also has responsibilities in relation to one of the other mines within the Yancoal Group, Ashton. Her experience in relation to Stratford and its operations and some of the matters which we will deal with today in the course of the proceedings, only goes back for five weeks.

PN44

Mr Tomlins, who is in the body of the Court, and will be a witness in the proceedings, really would be put at a substantial disadvantage if it were suggested that he ought to be the advocate and also to give evidence in the proceedings.

PN45

Ms Taylor is not in that position, but as I've said, she has only been at Yancoal for - sorry, at Stratford for a very short period of time. She does not have any experience in advocacy or representing employers before any Tribunal, including this Tribunal. While she has human resources experience, that has not involved, as I have mentioned, advocacy or representing employers even in conferences before Tribunals. She also has no training in relation to advocacy.

PN46

In respect of the involvement of my firm and myself, my firm being Ashurt Australia, we were engaged by Stratford Coal to assist in the enterprise bargaining for Stratford, of which is the background of this particular matter. We have also been involved in assisting Stratford with the particular industrial disputation which is the subject of this application, including by corresponding with the union, which occurred on 1 May and also, of course, as you will be aware, Commissioner, in preparing and filing on behalf of Stratford, the application in these proceedings.

PN47

My firm and I have knowledge of Stratford and its operations. We say that as compared to an advocate or a person without any advocacy experience like Ms Taylor or at a stretch, Mr Tomlins, there would be a substantial inefficiency if they were to be required to undertake the advocacy in these proceedings.

PN48

THE COMMISSIONER: Yes.

PN49

MR SEBBENS: And in the interest of the urgency of an application such as this it would be fair for representation to be permitted when regard is had to those matters, in particular, the experience of Ms Taylor and Mr Tomlins that I've gone to.

PN50

In respect of the fairness between the parties or whether or not it would be unfair not to allow the person to be represented taking into account the fairness between Stratford and how the CFMEU will be represented, we say it is a not a matter of mere convenience that Stratford be legally represented. We say because of the matters that I've gone through the applicant is not able to effectively represent itself. And when regard has been had to the experience of Mr Endacott, who appears for the CFMEU in these proceedings as the respondent, as compared with the experience of Ms Taylor and Mr Tomlins, there is really no fair comparison and it would do an injustice and an unfairness to Stratford if it were not be able to represented when that comparison is had to Mr Endacott in his experience.

PN51

I will just hand up to you, Commissioner, a document. Thank you. The document that I have handed up to you is headed Advocacy Experience of Mr Keenon Endacott as indicated by published decisions. The decisions are - - -

PN52

THE COMMISSIONER: I will mark it as Stratford 1.

EXHIBIT #STRATFORD 1 DOCUMENT HEADED ADVOCACY EXPERIENCE OF MR KEENON ENDACOTT

PN53

MR SEBBENS: Thank you, Commissioner.

PN54

THE COMMISSIONER: That being said, I know what it is. Don't be too long describing it.

PN55

MR SEBBENS: Yes. Thank you, Commissioner. Just briefly for the record, and my friend will be familiar with this document as well: it is a list of the matters which Mr Endacott has either appeared - those are the primary entries, or which he has instructed, they are the minority of the entries - - -

PN56

THE COMMISSIONER: Yes.

PN57

MR SEBBENS: - - - in matters before this Tribunal or its predecessor, Fair Work Australia, the Australian Industrial Commission and also in front of the New South Wales Industrial Relations Commission.

PN58

THE COMMISSIONER: The most interesting thing that would have been a column saying who won. A little scoreboard going up and down the side with all the - - -

PN59

MR SEBBENS: We could have, Commissioner.

PN60

THE COMMISSIONER: There might be a reason why it's not there.

PN61

MR SEBBENS: As you can see, Commissioner, and very briefly given your comment on it, you can see there are a significant number of matters there, 67 published decisions - - -

PN62

THE COMMISSIONER: So it would be beyond dispute that Mr Endacott is an able and experience advocate if that's what you wish to establish.

PN63

MR SEBBENS: Yes, thank you, Commissioner.

PN64

THE COMMISSIONER: I doubt that he's going to - given I've - - -

PN65

MR SEBBENS: Just to round out then that particular point, Commissioner, we say it's not a matter where there would be unfairness done to the CFMEU, given Mr Endacott's substantial experience, if permission were granted for me to appear for Stratford as you've noted and as I agree, Mr Endacott is a very capable advocate with significant experience.

PN66

It is a matter, however, where there would be unfairness if the applicant were not granted permission to be represented by a lawyer when that comparison is undertaken. We say for those reasons, and I've touched on each of the paragraphs (a) through (c) in subclause 2, that permission ought to be granted in these proceedings.

PN67

THE COMMISSIONER: Thank you. Mr Endacott, in response?

PN68

MR ENDACOTT: Yes, thank you, Commissioner. I'd like to start - well, I start by saying, Commissioner, permission shouldn't be granted because none of the tests that appear in section 596 have been met and we say, clearly, so. And we further say that if any of them are met then the Commission should still not grant permission for them to be legally represented. What I want to do initially is to take - to say this: the way in which section 596 should be considered previously by the Fair Work Commission we submit has not been in accordance with the requirements at which the statute - the importance, I should say - I take that not back - not the comments - the importance at which the statute and this provision is to be considered.

PN69

Today I make the submission on the basis of there being a Federal Court decision that goes into detail about the importance of the provision. I want to take - before I address the points, to take this to - take the Commission to this.

PN70

THE COMMISSIONER: I've only read an extract of this decision so I'm not fully familiar with its - - -

PN71

MR ENDACOTT: This is a decision of Justice Flick of the High Court - for the Federal Court handed down on 4 April 2013, and Worrell v Walton (2013) FCA 291, and this decision considers in great detail what is meant by section 596 and describes how it's to apply.

PN72

Now, in that decision, Commissioner, I'd like to commence by taking you to paragraph 17 of the decision. It says this:

PN73

The reference to a fair and just hearing is a reference to section 577 of the Fair Work Act which provides as follows: the performance of functions etc by Fair Work Australia.

PN74

It says:

PN75

Fair Work Australia must perform its function, exercise its power in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and quality workplace relations.

PN76

I just divert by saying this was a case that sort of ultimately found that the hearing was not fair and just because leave was granted - permission was granted. If you turn over to paragraph 19 it says this - - -

PN77

THE COMMISSIONER: And where the applicant in the substantive was brain damaged.

PN78

MR ENDACOTT: Yes, yes, I note that. I'll make a brief submission about that
- - -

PN79

THE COMMISSIONER: I hope you make no claim about that.

PN80

MR ENDACOTT: Well my wife might make that claim but I certainly don't, Commissioner. But it says:

PN81

Before the Full Bench of Fair Work Australia in the June 2012 hearing the submission was advanced that the Senior Deputy President conducted the matter in a manner that was not fair and just by allowing Mr Worrell to proceed to conduct his case unrepresented. The submission was rejected.

PN82

Now, a slightly different argument is run before the Full Court, that's why I take you to that - take you to it. But then it goes on:

PN83

No submission was expressly advanced that the Senior Deputy President had erred by failing to provide reasons for granting permission for Bacto Laboratories to be represented by a solicitor, nor was any submission advanced that the granting of permission was contrary to 596(2) and that the Senior Deputy President had thereby denied Mr Worrell a just and fair hearing for the purposes of 577(a).

PN84

Now, he talks about the two submissions, but I've sort of jumped to paragraph 22. It says:

PN85

The alternative, a more confined submission, however should prevail. In reaching this conclusion that the Full Bench erred in concluding that the hearing before the Senior Deputy President was fair and just, it respectively considered that the Full Bench failed to take into account (1) the fact that Mr Worrell was functionally illiterate and brain damaged; the failure on the part of the Senior Deputy President to make findings of fact relevant to her apparent conclusion that the requirement imposed by s.596(2) had been satisfied; and the manifest disadvantage that Bacto Laboratories - - -

PN86

THE COMMISSIONER: Advantages.

PN87

MR ENDACOTT: Advantages, sorry -

PN88

advantages that Bacto Laboratories would have in cross-examining Mr Worrell and the manifest confronting Mr Worrell in the questioning of Mr Carter. In support of its contention the hearing was not fair and just reliance was only placed upon the failure of the Senior Deputy President to provide reasons for apparently granting permission to Mr Butler.

PN89

Then it goes on:

PN90

The absence for any reasons of granting permission is only reinforced by comparatively simple or confined facts or disputes that arose for resolution. Mr Worrell gave one account of the conversation; Mr Carter gave a different account. There was an absence of any complexity for the purposes of section 596(2)(a). Nor was there any self evident reason why Bacto Laboratories could not fairly represent itself for the purposes of s.596(2)(b). Nor was any apparent consideration given to a fairness between the parties for the purposes of section 596(2)(c). Why one or another of the constraints imposed by section 596(2) is not satisfied is far from apparent.

PN91

I am going to take you through a fair bit of the decision because then goes into great detail to describe the entire nature of representation before the Commission. I divert to say the premise at which the Commission should exercise its discretion is the not granting of permission. That should be the premise, and that's the point I take you through this decision not what has become the practice, I submit, in which it's just a formality that a party has the right to be represented - to be given permission. And it goes on - and I'm just going to jump to paragraph 24, Commissioner. It says:

PN92

A decision to grant or refuse permission for a party to be represented by a lawyer pursuant to section 596 can not be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and the manner in which a hearing is conducted.

PN93

His Honour goes on:

PN94

It is apparent from the very terms of section 596 that a party in a matter before the Fair Work Australia must normally appear on his own behalf.

PN95

I divert by saying this is what the Federal Court says:

PN96

It is apparent from the very terms of section 596 that a party in a matter before Fair Work Australia must normally appear on his behalf.

PN97

There can be no confusion about how the Court has indicated to this Commission how - how has indicated in its decision, I should say - not to this Commission, but we say should be adopted by this Commission - how it should be applied.

PN98

The normal position may only be departed from where an application from the Commission has been made and resolved in accordance with the law, namely, where only one or other of the requirements imposed by s.596(2) have been taken into account and considered. The constraints imposed by section 596(2) upon the discretionary power to grant permission reinforced the legislative intent that the granting of permission is far from a mere formal Act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted only if one or other of the requirements in section 596(2) is satisfied.

PN99

So I take the point even if they say its for their requirements doesn't mean that they're going to be granted permission.

PN100

Even if one or other of those requirements is satisfied the satisfaction of any requirement is but a condition precedent to the subsequent exercise of the discretion conferred by section 596(2).

PN101

So I divert there just to reinforce. Even if you - even if they have met we say all of that arises is a condition precedent. Then it goes on - I just divert to the last sentence, it says - of that paragraph:

PN102

The satisfaction of any of the requirements set forth in - - -

PN103

THE COMMISSIONER: Which paragraph are we on?

PN104

MR ENDACOTT: I'm still in the same paragraph. It's on the page 9 and it's the last sentence of paragraph 24. It says:

PN105

The satisfaction of any of the requirements set forth in s.596(2)(a) to (c) thus need not in itself dictate that the discretion is automatically exercised in favour to granting permission.

PN106

And then I take you through the rest of the part because it does materially alter things, at paragraph 25 he says:

PN107

The appearance of lawyers to represent the interests of a party to a hearing runs the very real risk that what was intended by the legislator to be an informal procedure will be burdened by unnecessary finality. The legislative desire for informality and a predisposition to parties not to be represented by lawyers emerges if not from the terms of section 596, from the terms of explanatory memorandum to the Fair Work Bill 2008, which provided in relevant part as follows -

PN108

And then he reproduces the relevant parts of the memorandum at item - excuse me, Commissioner - at item 2291 to 2296 with some of the items not included, but I'll read that. It says:

PN109

Fair Work Australia is intended to operate efficiently and informally and where appropriate in a non adversarial manner. Persons dealing with Fair Work Australia would generally represent themselves. Individuals and companies may be represented by an officer or employee or a member, officer, or employee of an organisation at which they are member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer, or employee of the organisation, in both cases a person from a relevant (indistinct)

PN110

Then the next item:

PN111

In many cases, legal or other professional representatives should not be necessary for matters before Fair Work Australia. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only if Fair Work Australia grants permission.

In granting permission Fair Work Australia have regard to considerations of efficiency and fairness rather than the mere convenience and interests of the parties.

PN112

The Judge goes on to say this - Mr Justice Flick.

PN113

Neither, on the review of the -

PN114

I won't proceed with that, the Commission can read the decision for itself. Now, returning to the items of section 596, I note that I appear here for the CFMEU and for those individuals I have named. The CFMEU attends here not legally represented and has a - if anything it has a right to be represented by an employee, which I am.

PN115

Further, each of the individuals that I represent have attended these proceedings represented by someone that's not legally qualified, and I would say as an issue of fact the short notice which these proceedings is brought on merely deprives those people that I represent an opportunity to be able to consider whether or not they need legal representation. By their nature in short proceedings, they would seek the assistance of the union who has a, for this instance, non legally qualified person to attend - appear before this Commission and represent their interests.

PN116

I also divert by saying this in the stance of the proceedings. The employer asks this Commission to make orders against the union and against the 27 named individuals. Orders that if are breached would render a term, if breached, would render them open to some sort of prosecutorial damages in action. It is a very important proceeding. One would argue one of the most important proceedings that appear before this Commission and by its nature it's a proceeding that's brought on quickly; one at which an individual does not need to be represented automatically - automatically falls to a lesser position if permission is granted by an employer because of the nature of the proceedings.

PN117

So we are - we say that. I also divert by noting that the union and each of the individuals is represented by a lay advocate working out of a satellite office in Cessnock, a regional centre, not the - you know, not the castle or the fortress of industrial relations out of Sydney or Melbourne, but a regional - - -

PN118

THE COMMISSIONER: I thought you might have a room out the back here you're here so often - - -

PN119

MR ENDACOTT: No. A regional centre, with no training in the law - no training in the law, who has some experience in appearing before Tribunals and Courts and even though I have a degree, I have a degree in the field of applied science and not in the field of - not in the field of law.

PN120

And the employer - remember, the parties to these proceedings is the CFMEU and one might have some sympathy for an organisation of our nature being represented, you know, "Well, they're a big beast." But there are 27 individuals that are being represented here not legally as well and the employer is Stratford Coal Pty Ltd and that name belies the mammoth at which this organisation is. The mammoth - it's Yancoal, which is owned by Yanshui, which is one of the largest mining companies in the world. I can't recall how many employees it had last time I looked, but I've got a vague feeling last time I looked it was 150,000. In fact, it's owned by the - the majority owned it was by the Chinese government. This is a David and Goliath battle - a David and Goliath.

PN121

THE COMMISSIONER: People always tell me this but I'm always minded to remind them that David won.

PN122

MR ENDACOTT: Yes.

PN123

THE COMMISSIONER: Goliath didn't win.

PN124

MR ENDACOTT: But this is a party - the applicant is a party that is massive with endless resources. Would have teams of employees you would think that have - that would be capable of doing these proceedings. The consideration shouldn't be confined to the two people that turned up today. It shouldn't be confined when you're talking about one of the largest mining companies in the world.

PN125

Now, let's go back to the proceedings. The proceedings are not complicated. It's an application to stop the taking of industrial action which is bread and butter proceedings before this Commission. Bread and butter.

PN126

The tests are well known and this Commission would know them because of the experience the Commission, as presently constituted, has; a Commissioner with many years of experience, many years of experience of familiarity with the Act and the provision.

PN127

The other point is the nature of the issue is actually quite confined. It's whether or not the notice set out the nature of the action. That's really it and the Commission can - - -

PN128

THE COMMISSIONER: I fully agree with you. I want people to keep that in mind.

PN129

MR ENDACOTT: Yes. And at the end of the day the Commission is quite capable to looking at the notice and determining for itself whether or not the nature of the action has been described - - -

PN130

THE COMMISSIONER: Yes.

PN131

MR ENDACOTT: - - - is described in an appropriate manner. It doesn't require any complex interpretations, we would say, of the law. So - - -

PN132

THE COMMISSIONER: Are you intending to bring witness evidence. I might have missed what you said earlier?

PN133

MR ENDACOTT: Well, at this stage I wasn't intending to bring evidence.

PN134

THE COMMISSIONER: No, I don't see the need for it myself from either side but I will be stuck with what I'm stuck with.

PN135

MR ENDACOTT: Yes. But I reserve the right to call it. I was asked by the principals of the union whether I thought that we would intend and Indicated as we walked in that I didn't think that would be the case. At present it remains that.

PN136

But in that - so we talk about the complexity of the case, so it's a very narrow confined issue. Commissioner, it's an issue that the Commission readily considers because the Commission would be aware that when it makes a ballot order it has to consider whether or not the question appropriately describes the nature of the dispute which I'll take you to, so it's not like it's a novel consideration that's been considered here in which there might be some argument.

PN137

The process ultimately is one that's considered by the Commission on every occasion, we would submit, when it considers whether or not it should make a ballot order. So we say there's no complexity, there's no unusual complexity there, and we would say it would be more efficient.

PN138

And, in part, we rely upon the fact that as noted by Flick it's in slightly different terms and as I described it, it's very rare, I find - and I submit that this - that this would be the practice of many practitioners appearing before the Commission - it's very rare that the involvement of lawyers make a case less complex. It's quite the opposite.

PN139

I don't know whether my wife described a lawyer in this fashion, but it's someone who can say something in 10 words that should be said in five. But in any event
- - -

PN140

THE COMMISSIONER: I think she was being modest.

PN141

MR ENDACOTT: In any event - and Justice Flick says that where he says the real - it's a real issue that those words make more complex, so we say the first test hasn't been met. And then I go to (b) which is unfair not to allow the person to be represented because the person is unable to represent himself or herself effectively. Well, if Yancoal - - -

PN142

THE COMMISSIONER: You've been to that point really, haven't you?

PN143

MR ENDACOTT: Yes. It's not sustainable. And it's not as used in the - as used in the judicial note - and I'll just take you to the judicial note that appears below 596(2) where it says:

PN144

Circumstances in which Fair Work Australia may grant permission for a person to be represented by a lawyer or paid agent include the following: where a person is from a non English speaking background and has difficulty reading or writing.

PN145

THE COMMISSIONER: Is that the judicial note or the explanatory memorandum?

PN146

MR ENDACOTT: Well, I don't know the difference. The explanatory note - this is the note that appears under the - - -

PN147

THE COMMISSIONER: It's not in my copy. What is it?

PN148

MR ENDACOTT: Okay. Well, it actually - - -

PN149

THE COMMISSIONER: It comes out of the explanatory memorandum as far as I know.

PN150

MR ENDACOTT: No. It actually appears in the Act itself.

PN151

THE COMMISSIONER: Does it?

PN152

MR ENDACOTT: Yes.

PN153

THE COMMISSIONER: All right.

PN154

MR ENDACOTT: But I don't know what - - -

PN155

THE COMMISSIONER: I've got no desire to delay you. Go on.

PN156

MR ENDACOTT: It does appear in the Act that it's assented to.

PN157

THE COMMISSIONER: Yes.

PN158

MR ENDACOTT: And then it goes on to say this:

PN159

(b) is the second example: where a small business - - -

PN160

THE COMMISSIONER: Sorry, it does have it here, it's my eyes and the smaller print.

PN161

MR ENDACOTT: Yes.

PN162

Where a small business is a party to a matter and has no specialist human resources staff where the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

PN163

Well, firstly, it's not a non speaking - it's not a person with a non speaking background although the company is - I think it's still Chinese government owned, but in any event - the majority is Chinese government owned - but in any event they're not a small business. I mean - in that regard - - -

PN164

THE COMMISSIONER: I bet that's not controversial.

PN165

MR ENDACOTT: Yes. And we would say it's quite the reverse. You wouldn't think of many businesses that were bigger in international terms. That brings me to the third point. It would be unfair not to allow the person to be represented taking into account the fairness between the person and the other persons in the same matter. Well, what are the persons: one, is the persons in this matter are 27 individuals that turn up here not legally represented, and we would say orders are being asked to be made against them individually and we would say it is manifestly unfair for them.

PN166

I do note that I asked - yes - the company chose - has chosen to go with the employees individually. I don't know why. They could have just gone to the union and if the orders were lost the union would have instructed its members (indistinct) but it really wanted to go the step further and wanted to have it so the individuals would be open to penalty if they breached it.

PN167

We say that - well, the company did it because - who knows, but they did it, and it should be taken into account, 27 of the 28 people who are here today are individuals that are being not legally represented here.

PN168

THE COMMISSIONER: Yes.

PN169

MR ENDACOTT: And we would say that in itself would mean that it wouldn't meet the test. And with respect to the fairness between the persons involved, well, the company is a massive corporation and, yes, I do have some industrial relations experience albeit not legally qualified, not - or trained and working at a satellite office in Singleton, but I'm not - Cessnock, sorry. But not a - I'm a - - -

PN170

THE COMMISSIONER: (Indistinct)

PN171

MR ENDACOTT: But the union is not, in comparison, you know, to the resources of the - to the resources of Yanshui.

PN172

THE COMMISSIONER: Can I just say I've never heard you or the CFMEU be so modest in all my years.

PN173

MR ENDACOTT: Yes. And even, Commissioner, if you are inclined over those submissions to make a decision that a party that should normally represent itself should be given legal representation, and we would say - under those tests - we would say that you should still not exercise the discretion as indicated by Mr Flick for this reason: one is the employer, we submit, was hell bent in bringing these proceedings for this reason that when it wrote it the union it demanded by 12 o'clock yesterday that we had to withdraw the notice to take protected action, even action that from the material - I don't really think they assert it's not protected - that they assert that it's not protected.

PN174

I mean, this is it. There are - you have to - we are going to - we're going to come down here, we're going to use any available jurisdiction even if you don't stop action that's protected. And we say that that should be taken into account because if you've read the material I'm pretty sure that they're not even challenging what - well, they can't be seriously challenging that the last item on the notice doesn't explain the action appropriately.

PN175

Now, why? Well, maybe because they wanted to make sure they had orders against the individuals, I'm not sure, but that's only for themselves. So, Commissioner - - -

PN176

THE COMMISSIONER: Are we winding up now?

PN177

MR ENDACOTT: Yes. We ask that you not grant them leave to be legally represented. We say applying the test at some point employers have to be not been - you know, they don't have to be legally represented, especially companies of this size. And we just submit finally if the section was meant to be interpreted so monster organisations - I say that - and it is enlarged, I don't make it into a boggie man - but big organisations can take action against individuals and that that's okay. Then it wouldn't matter who turned up and employers given the right. So I make no further submissions, Commissioner.

PN178

THE COMMISSIONER: All right. Before asking Mr Sebbens if he wishes to reply I will note that, of course, your application, your notice of appearance is fully proper and I also accept because of the short notice in the calling on of this matter that you represent those 27 named persons - - -

PN179

MR ENDACOTT: Yes.

PN180

THE COMMISSIONER: - - - in addition to the union. I just thought I'd do that before I forgot it. Mr Sebbens, do you feel a need to reply?

PN181

MR SEBBENS: Just very - - -

PN182

THE COMMISSIONER: Perhaps, I'll just tell you this: I'm going back to the Full Bench at 3.30 which is hanging about waiting for me, so you people take as long as you feel you need for this case but be fully warned that I'll be rising at 3.30 and I'll be back at the convenience of Vice President Watson. Okay.

PN183

MR SEBBENS: Thank you, Commissioner. Very, very briefly. In respect of the decision of Justice Flick, his Honour refers to the principles under which the proceedings before this Tribunal are to be conducted. His Honour focuses on, effectively, the speed or the brevity of the proceedings. Of course, the provision in the Act also deal with fairness and justness between the parties. We say those are obviously matters which are clearly set out in 596(2). I've taken you as to why we say there are matters of unfairness that exist if permission were not granted. I don't make any further submissions.

PN184

THE COMMISSIONER: Good. Thank you. Guided by the reason of Justice Flick, which is the latest and most persuasive case law which I am obliged to follow, I note that the judgment of his Honour concerned both a general discussion of right to appear by lawyers in this jurisdiction and also as a context the case of Mr Worrell, in particular.

PN185

Mr Worrell was functionally illiterate and brain damaged, and it was held that it was unfair to impose lawyers on him against him and, particularly, to make a finding that the employer witness was to - the evidence of the employer witness was to be preferred over that of Mr Worrell when he had no chance against legal representation.

PN186

I also note in the context of this that the Senior Deputy President for whatever reason didn't appear to give any reason why she granted permission for a lawyer to appear against Mr Worrell. But as I said the judgment goes on - and I've been marking it up as Mr Endacott has been addressing me and what I am about to say is in the light of that.

PN187

I have great sympathy on this occasion, Mr Sebbens, for the arguments put to me except for one thing and that is in relation to what I think will be quite a legal argument in relation to the meaning of - and I've lost it here - that section of the Act from memory is section 414(6) as to what constitutes - I'll just read section 414(6):

PN188

A notice given under this section must specify the nature of the action and the day on which it will start.

PN189

I think all of that is quite lucidly clear except possibly for or specifically for the nature of the action and whether that, as I anticipate the argument, incorporates an obligation on the union to notify the employer as to how long the action will last for as well as the nature of the action itself.

PN190

Mr Sebbens, I will grant you permission to appear pursuant to section 596 - you can tell I'm on the fly here as well - in that permission is granted to you to the extent that it's necessary for you to deal with legal issues relating to section 414(6) of the Act in terms of you presenting any case law to me, and I'll accept legal argument from you about that, but on that point only.

PN191

In relation to any factual background relating to this matter I would expect to be addressed by a representative of the company who I think is quite capable of doing that, and I'd like you to enter an appearance now, please. Who is going to be the company rep?

PN192

MS TAYLOR: That would be - - -

PN193

THE COMMISSIONER: Is this a deer in the headlights moment, is it?

PN194

MS TAYLOR: Yes. It absolutely is.

PN195

THE COMMISSIONER: Announce your appearance.

PN196

MS TAYLOR: Sir, Kylie - initial K, Taylor, representing Stratford Coal.

PN197

THE COMMISSIONER: Okay. Now, Mr Sebbens, given some time constraint - well, there are no time constraints if people are willing to be here all night as I am, so we'll get it done. I agree with you that earlier - what you said earlier in the piece that this should be a very narrow argument about the definition of what the nature of industrial action is. In case I forgot to say it, I grant you permission pursuant to the discretion granted to me under - and under section 596(2)(a) of the Act. I do not believe (b) is relevant. (c) is relevant to the extent that Mr Endacott, who has significantly downplayed his abilities in this jurisdiction, is I believe a worthy equal to you and will not be disadvantaged by your appearance.

PN198

Now, is that all clear as mud what we're going to do?

PN199

MR ENDACOTT: Yes.

PN200

MR SEBBENS: Yes.

PN201

THE COMMISSIONER: Okay. Off you go, Mr Sebbens?

PN202

MR SEBBENS: Commissioner, I might just make a brief opening submission and then I will hand over to Ms Taylor to briefly elicit some evidence from Mr Tomlins.

PN203

THE COMMISSIONER: I'll give you a moment with Ms Taylor before that happens.

PN204

MR SEBBENS: And then, of course, I will then deal with the submissions in respect of section 414(6) and why we say - perhaps, if I can just check this point, Commissioner - of course, you said I had permission to put arguments in relation to section 414(6) - - -

PN205

THE COMMISSIONER: With legal argument in relation to 414(6). But can I ask you this: just trying desperately to see if this thing can be quicker or shorter than otherwise might be. There is no doubt, is there, that an order allowing protected - well, an order permitting a ballot of protected industrial action was issued, the ballot was resolved in the affirmative on the 10 questions put to the CFMEU members, and therefore industrial action taken pursuant to that ballot outcome would be lawful provided the notice under 414(6t) and other associated matters complied with the Act. Is that right?

PN206

MR SEBBENS: Correct.

PN207

THE COMMISSIONER: Okay. So you say it's only subject to section 418 of the Act because the notice is deficient?

PN208

MR SEBBENS: Yes.

PN209

THE COMMISSIONER: I take it that you're telling me that the notice is deficient in that it doesn't tell you how long consecutive stoppages might last for.

PN210

MR SEBBENS: Well, the deficiency is two-fold. One is that it's just not able to be understood what the items 1 through 8 properly mean. Part of the - - -

PN211

THE COMMISSIONER: - - - difficult to understand.

PN212

MR SEBBENS: Part of the confusion is that it was unclear whether or not there are to be multiple consecutive stoppages or bans.

PN213

THE COMMISSIONER: I just said that to you.

PN214

MR SEBBENS: And then - of course then, whether or not there is a particular duration to which they would go for. So I think I'm putting it slightly differently - I'm just putting it, Commissioner that - - -

PN215

THE COMMISSIONER: I think you're probably putting it - - -

PN216

MR SEBBENS: I think we're close - - -

PN217

THE COMMISSIONER: - - - Mr Sebbens.

PN218

MR SEBBENS: The point that I just wanted to check with you, Commissioner, is whether or not I can then make any submission in respect of how - if there is a deficiency under section 414(6) that an order under 418 should issue.

PN219

THE COMMISSIONER: No.

PN220

MR SEBBENS: Very well.

PN221

THE COMMISSIONER: Because you have made an application for an order pursuant to section 418. If I find that it's not protected industrial action then I'm obligated to do something about, aren't I?

PN222

MR SEBBENS: Yes. Perhaps, if I just - rather than pursue then with an opening submission, it's perhaps just more timely and convenient if I just seek a very brief adjournment and speaking to Ms Taylor to let her then elicit - - -

PN223

THE COMMISSIONER: All right.

PN224

MR SEBBENS: - - - some evidence from Mr Tomlins and then we move onto submissions.

PN225

THE COMMISSIONER: My watch says 3, and that says, what, 2 minutes to 3 - say 5 past on that clock.

PN226

MR SEBBENS: Yes, thank you.

PN227

THE COMMISSIONER: We'll synchronise our watches.

<SHORT ADJOURNMENT [2.59PM]
<RESUMED [3.08PM]

PN228

THE COMMISSIONER: I might say my thoughts have firmed up on this that really the only issue is about what a notice must contain about the nature of the action, so it's really the only argument, Mr Sebbens, in my view. What do you think, Mr Endacott?

PN229

MR ENDACOTT: Well - - -

PN230

THE COMMISSIONER: If I'm wrong I'm sure you'll tell me.

PN231

MR ENDACOTT: Yes, yes. No, I think - with respect to determining the matter at issue you're not wrong, but - - -

PN232

THE COMMISSIONER: I say by way of background, I mean, there is no question that you have the right to take protected industrial action. The question is whether the way this has been notified constitutes protected industrial action. The only word I can find in there is nature.

PN233

MR ENDACOTT: Yes.

PN234

THE COMMISSIONER: It might be in conflict.

PN235

MR ENDACOTT: No - well, I realise that, but - and I forewarned the other side that I will be relying upon this - the basis of opposing it. So we say they shouldn't be (indistinct) evidence. That is there is 27 individuals, they want to rule us against.

PN236

THE COMMISSIONER: Yes.

PN237

MR ENDACOTT: So they've got to bring the nature to each of the 27 individuals about they will be taking the action that they - they've got to bring some evidence about that. It's all for the union. The union is notified - it can produce the letter and say, "Well, the union is going to do that."

PN238

THE COMMISSIONER: And you're representing the 27 so you're supposed to tell me on their behalf.

PN239

MR ENDACOTT: I will. And I'm sure they'll get in the witness box and they'll say there's 27 individuals and you should restrain them because they're going to take action.

PN240

THE COMMISSIONER: Yes.

PN241

MR ENDACOTT: And I'll cross-examine them and say, "Well, some of them aren't even at work and they're going to hospital" and all that, "they should have orders made against them." But that's got to be natural evidence. They've gone further and they've made orders against individuals and simply - if the evidence is only going to be a letter of notice then that's not enough. It might be enough to establish some sort of factual basis against the union.

PN242

THE COMMISSIONER: Yes.

PN243

MR ENDACOTT: Because each one of those - and I'll - I will be putting this to the evidence - have no intention of taking action. There's some employees who have no intention of taking any of the action. And so they've got to bring - if they want orders against them they've got to say "This person is going to do that."

PN244

THE COMMISSIONER: You mean in the sense that they wouldn't - that they may not be rostered on at that time or - - -

PN245

MR ENDACOTT: That's right.

PN246

THE COMMISSIONER: Yes.

PN247

MR ENDACOTT: May not even be at work.

PN248

THE COMMISSIONER: Or may not be at work. Yes, I understand the argument.

PN249

MR ENDACOTT: Yes. And the last point is the reason why they would (indistinct) it's more than that, it's because they have - the nature of the order that they're seeking about us being required to write to employers and employees in certain terms, there's be some sort of evidentiary basis to support the making of such an order, we would say.

PN250

THE COMMISSIONER: The making of that part of the order, if an order is made, is highly unlikely.

PN251

MR ENDACOTT: Yes.

PN252

THE COMMISSIONER: Could I put this to you: I'm a simple man who searches simplicity, sometimes in these things. I never actually reach it in these proceedings, but I continue to have a go. If you were just to inform the employer today, or would you be willing to inform the employer today of how long any consecutive actions are planned for: you say as per the ballot question you're notification basically is a mirror of the ballot questions. Correct?

PN253

MR ENDACOTT: Yes, Commissioner. I'll - - -

PN254

THE COMMISSIONER: I mean, you must have a plan in relation to this? Are you prepared to inform the employer of what - and I've used the word "nature" in a broad sense.

PN255

MR ENDACOTT: Yes.

PN256

THE COMMISSIONER: Nature of the action will be in forthcoming days in relation to duration.

PN257

MR ENDACOTT: Yes.

PN258

THE COMMISSIONER: Are you?

PN259

MR ENDACOTT: I will take advice on that. But, Commissioner, I make this point: just - - -

PN260

THE COMMISSIONER: Because what I want to tell you is that if you are willing to do so that would be a strong influence on me in the exercise of my discretion about whether I issued an order or not.

PN261

MR ENDACOTT: Thank you. I just want to make - can I just divert by making this point, and that is the nature of the action is required to be included in the question that goes to the ballot, which has already been approved. We write the questions based upon what Justice (indistinct) says about the nature of the action. So in that sense - just - - -

PN262

THE COMMISSIONER: But the nature of the action in the ballot question and the nature of the action in the notification to the employer are a bit different aren't they, in that you ask your members whether they're willing to undertake things like consecutive two hour stoppages or whatever.

PN263

MR ENDACOTT: Yes.

PN264

THE COMMISSIONER: But when you tell the employer, doesn't the nature of - can't be argued quite strongly that when you tell the employer the nature of it becomes also the extent of it - - -

PN265

MR ENDACOTT: Yes.

PN266

THE COMMISSIONER: - - - the duration of it. Do you want to talk to those who instruct you for a few minutes?

PN267

MR ENDACOTT: I'll - you asked question and I'll give you want we're intending to take and I shouldn't have avoided it and I apologise, Commissioner. I just want to - - -

PN268

THE COMMISSIONER: - - - I appreciate you'd have to speak to your - - -

PN269

MR ENDACOTT: Yes. We were only ever intending to take the two hour stoppage as I understood, and it was written in the term to reflect the question and to reflect what the nature of the dispute that had been voted on by the individuals.

PN270

THE COMMISSIONER: Yes.

PN271

MR ENDACOTT: Look, I divert by saying - no, I don't divert by saying. So that's it. I've - we were only ever going to take the two hour stoppage.

PN272

THE COMMISSIONER: Let's go to your notice, and I can turn it up. One thing I appear to have mislaid after extracting it from Mr Sebbens this morning - by the way, Mr Sebbens - - -

PN273

MR SEBBENS: Yes.

PN274

THE COMMISSIONER: - - - in these sort of proceedings, if you want quick action it's a good idea to give me all the paperwork rather than just a precise of it in an application.

PN275

MR SEBBENS: We have a copy, Commissioner.

PN276

THE COMMISSIONER: I'll find it. I've found it. Okay. Let's go to paragraph 1 of your notification of 30 April 2013.

PN277

MR SEBBENS: Yes.

PN278

THE COMMISSIONER: Are you telling me that a banned stoppage on the operation and maintenance of the CHPP Raw Coal System will occur for two hours only from 9 am tomorrow.

PN279

MR ENDACOTT: Yes.

PN280

THE COMMISSIONER: In relation to the second one - I'm not going to keep reading it out - will it only be two hours.

PN281

MR ENDACOTT: Yes.

PN282

THE COMMISSIONER: Number 3. Will it only be two hours?

PN283

MR ENDACOTT: Yes.

PN284

THE COMMISSIONER: Number 4. Will it only be two hours?

PN285

MR ENDACOTT: Yes.

PN286

THE COMMISSIONER: On 5 May.

PN287

MR ENDACOTT: Yes.

PN288

THE COMMISSIONER: Number 5, on 6 May, will it only be two hours?

PN289

MR ENDACOTT: Yes.

PN290

THE COMMISSIONER: Number 6, will it only be two hours on 6 May?

PN291

MR ENDACOTT: That's correct.

PN292

THE COMMISSIONER: Number 7, will it be two hours on 7 May?

PN293

MR ENDACOTT: That's correct.

PN294

THE COMMISSIONER: Number 8, will be it two hours on evening of 7 May?

PN295

MR ENDACOTT: That's correct.

PN296

THE COMMISSIONER: And so will it be a ban on rostered overtime - well, the ban on rostered overtime specifies the time scale, so I can't see that could be the subject of any application that's protected industrial action under the ballot result.
Mr Sebbens, I'll just - I will ask you this question: in the knowledge of that, do you wish to pursue a technical case pursuing a 418 application? Do you wish a moment to talk to those who instruct you?

PN297

MR SEBBENS: I will seek instructions, Commissioner. And, of course, an oral correction does not correct a defective notice but I will seek - - -

PN298

THE COMMISSIONER: No. I'm aware of that. I have discretion in these matters, all right. 418s - what we colloquially call 418s, impose heavy legal burdens on people, and heavy legal responsibility and possibly quite awful legal consequences for people if they're breached. They are not to be handed out purely on technicalities. What I would think of doing would be - Mr Endacott has never told me an untruth in these proceedings, and I presume he speaks on behalf of the members and the union - I would be prepared to stand this matter over and supply you and your client with my mobile number and if something goes wrong or contrary to the undertakings given, we will be back here as a live issue.

PN299

MR SEBBENS: Could I seek some instructions, Commissioner, but could I propose an alternative? I may be going beyond - - -

PN300

THE COMMISSIONER: No. Be bold. Be bold.

PN301

MR SEBBENS: Could I suggest - and this was the invitation made to the CFMEU yesterday by my firm on behalf on Stratford - - -

PN302

THE COMMISSIONER: Yes.

PN303

MR SEBBENS: - - - that it has now received (indistinct) notice for very similar bans to commence on Wednesday. My client does not cavil, and it can't, with the fact that the union and its members can engage in protected industrial action. It doesn't stand in the way of that in any sense. It invited it, now that there was clarity about the way in which these matters should be communicated with clarity that if something was not intended to be multiple consecutive bans that it not be described in that way, that the notice merely be withdrawn and we all move on as of Wednesday of next week. It's a simple - - -

PN304

THE COMMISSIONER: Yes. But would they be within the time limits to issue a new notice to have their industrial action.

PN305

MR SEBBENS: They have already issued one for Wednesday, they would not be within time to take - to issue a notice and to take that action for this Saturday and the days following.

PN306

THE COMMISSIONER: If Mr Endacott or someone very much like Mr Endacott with authority from the union and the 27 persons was to give you something in writing to the effect of what's been put on transcript I want you to find out what your attitude to that would be.

PN307

MR SEBBENS: Yes, thank you, Commissioner.

PN308

THE COMMISSIONER: We're pushing up against the Full Bench, five minutes.

PN309

MR SEBBENS: Thank you, Commissioner.

<SHORT ADJOURNMENT [3.20PM]
<RESUMED [3.25PM]

PN310

THE COMMISSIONER: I don't want to encourage you too much but the Vice President has kindly agreed to let me stay here until 3.40. Now, Mr Sebbens?

PN311

MR SEBBENS: Commissioner, I've spoken to Ms Taylor, given my strict permission - - -

PN312

THE COMMISSIONER: Well, that will be relaxed for a little while so you can you may go on.

PN313

MR SEBBENS: In respect of that clarification, if Mr Endacott is prepared, through the union and that it be done with the authority and agreement by those individual employees the union represents that the intention of items 1 through 8, is that it is a single ban and stoppage on each of the items there listed commencing at the relevant time and date noted but only two hours duration in respect of each of those eight items and not multiple consecutive stoppages - - -

PN314

THE COMMISSIONER: He's given such undertaking on transcript and he does represent the union and he represents the 27 people, so you're there.

PN315

MR SEBBENS: Then without any concession in respect of whether or not it is a proper notice describing the nature of the industrial action and without any concession to any future challenge on defective notices - - -

PN316

THE COMMISSIONER: Yes.

PN317

MR SEBBENS: - - - then my client is willing to reluctantly proceed on this point. It makes the point that it should not be in any way suggested that it has authorised unlawful industrial action. It has become satisfied that the action is lawful based on the undertaking and that the action is going to be taken upon that basis. It does not concede, it doesn't accept, it does not agree by saying, as we have here today, that employees are allowed to take unauthorised unprotected industrial action.

PN318

THE COMMISSIONER: Well, it hasn't been established yet any action would be unprotected. But I think you covered every base in covering yourself and the company. What I'm saying is that I've made no ruling about the status of the notice. I've just tried to establish a common sense end to this. I realise your company would prefer - the company you represent would prefer to have no industrial action. Unfortunately, it's going to be stuck with it.

PN319

In the alternative, if your company is stuck with the industrial action you like to know its not going to be of unlimited or unknown duration. You have achieved aim number 2. Whether, if this issue needs to be re-ventilated I make a finding in relation - I made a finding say that the notice was deficient, well, that would change the game. But I've made no finding yet. I've made no finding against anyone.

PN320

MR SEBBENS: Yes.

PN321

THE COMMISSIONER: Now, my associate will supply you with my contact details over the weekend. Mr Endacott already has them - - -

PN322

MR ENDACOTT: Yes.

PN323

THE COMMISSIONER: - - - from previous times here, and if something happens which you wish to re-ventilate under this application but only in relation to the notice issued to you on 30 April 2013, I might note, which is the subject of the application, then we can argue about it. But I'm not telling you - here I'll cover myself - I'm not telling you that if you come back for any reason that you will automatically get an order under 418, or if you do, an order in the terms you have sought. Everybody's rights are reserved, including mine.

PN324

MR SEBBENS: Thank you, Commissioner. And we do not, so I can make it clear - we do not withdraw the application at this time but we consent - if I can put it in this way - we consent to the matter being adjourned should there be action taken in accordance with what Mr Endacott has described here today on behalf of the union and the employees it represents.

PN325

THE COMMISSIONER: I think you're just repeating what I said in more elegant language, aren't you?

PN326

MR SEBBENS: Yes.

PN327

THE COMMISSIONER: Probably more easy to understand language. But your application refers to - let me have a look at it - bear with me again. The last action which you could complain about in any deceived or alleged deficiency in the notice will occur for two hours commencing at 8pm on Tuesday, 7 May, is that correct?

PN328

MR SEBBENS: Correct.

PN329

THE COMMISSIONER: Yes. Therefore, after we have left Tuesday, 7 May, your application for an order pursuant to section 418 would be redundant, would it not?

PN330

MR SEBBENS: We take that to be the case.

PN331

THE COMMISSIONER: I will leave the file open until that time, which is 8pm on 7 May. I then intend to close the file. The application is not dismissed. The file will be closed due to a reasonable understanding between the parties.

PN332

Mr Endacott, I direct you to formally confirm what you have given to me orally.

PN333

MR ENDACOTT: Yes.

PN334

THE COMMISSIONER: You or another responsible official of the union to Mr Sebbens and/or the company - they can tell you which one you should write to.

PN335

MR ENDACOTT: Yes.

PN336

THE COMMISSIONER: And your industrial action will proceed and be permitted legal industrial action within the confines of your undertaking.

PN337

MR ENDACOTT: Yes.

PN338

THE COMMISSIONER: All right. Thank you, gentlemen. Ladies and gentlemen.

PN339

MR SEBBENS: Thank you, Commissioner.

PN340

THE COMMISSIONER: We're adjourned.

<ADJOURNED INDEFINITELY [3.32PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #STRATFORD 1 DOCUMENT HEADED ADVOCACY EXPERIENCE OF MR KEENON ENDACOTT PN52