C2015/2657, Transcript of Proceedings [2015] FWCTrans 272 (12 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051765

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DEPUTY PRESIDENT LAWRENCE

C2015/2657

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

Boral Cement Limited v The Australian Workers' Union & "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2015/2657)

Sydney

9.12 AM, THURSDAY, 23 APRIL 2015

PN1

THE DEPUTY PRESIDENT: Can we have appearances please?

PN2

MR FAGIR: If it pleases the Commission, I seek permission to appear for the applicant together with Ms ANDERSON.

PN3

THE DEPUTY PRESIDENT: Thanks, Mr Fagir. For the unions?

PN4

MS L SAUNDERS: If it pleases the Commission, SAUNDERS, initial L. I appear for the AMWU.

PN5

MR J BLAXLAND: If it pleases the Commissioner, BLAXLAND, initial J for the Australian Workers Union.

PN6

MR R DEGUARA: If it pleases the Commission, DEGUARA initial R for the CPU.

PN7

THE DEPUTY PRESIDENT: Thank you. Do you object to Mr Fagir appearing, any of you, on the union s side, if I can put it that way?

PN8

MS SAUNDERS: No, we don t, your Honour.

PN9

THE DEPUTY PRESIDENT: Permission is granted under section 596. Could I just say before you start, Mr Fagir, that just to check in terms of service of material and so on, and I assume you ll probably address that, but my understanding at the moment is that this application was lodged last night and as everybody is aware, the Commission is required to deal with these matters within 48 hours if practical and the most practical thing, it seemed to me when it was allocated to me, was to list it first up this morning. Given the need to notify people and so on, and my understanding originally was also that the unions were in Wollongong, so it looks like some officials of the New South Wales branch are based in Sydney, are in attendance this morning. That s good and we don t need to have telephone points.

PN10

I ve had a quick look at the application last night and I see that there s a couple of witness statements that were lodged later last night, which I read on my iPad this morning and I ve got them here. Obviously I just want to check that all the respondents have been served and are aware of what s happening. Is that the case?

PN11

MS SAUNDERS: Yes, your Honour, that s my understanding. We received, for the AMWU s part at least, we were notified of this matter at about 6 o clock last night. We received the respondent s actual application and the witness statements at 8 o clock. The relevant officials are, as you say, based in Wollongong. Mr Stewart is coming up. He s actually in town now, but he s in an unrelated Boral matter in the State Commission, so he s unavailable at this precise point in time. I understand Mr Phillips from the AWU is in the car as we speak.

PN12

THE DEPUTY PRESIDENT: He s in the what?

PN13

MS SAUNDERS: He s in the car as we speak, driving up.

PN14

THE DEPUTY PRESIDENT: A car, right, best of luck.

PN15

MS SAUNDERS: He s not available. To that end what the unions are looking to do, we d like to seek a short adjournment to allow us to speak to those officials and put on our own evidence. There s a significant conflict in this matter, particularly on a key issue of whether industrial action is being taken. I m instructed the workers are back at work. What we d be looking for is perhaps this afternoon, or tomorrow morning. Still within that 48 hour period.

PN16

THE DEPUTY PRESIDENT: We ll hear Mr Fagir. I have another practical sort of a complication in that I already had a long standing listing at 10 am that involves one of the unions and another employer, but I can put that back a bit. I think what we should do is just get on with it and do the best we can.

PN17

Sorry, Mr Fagir, I just wanted to just check that people were aware of what was going on.

PN18

MR FAGIR: I take it that the AWU and CPU are in the same category as - - -

PN19

MR BLAXLAND: Yes, absolutely.

PN20

THE DEPUTY PRESIDENT: I think you can assume that s right, yes.

PN21

MR FAGIR: Any application for an adjournment is opposed, essentially on these grounds.

PN22

THE DEPUTY PRESIDENT: I don t they ve made it yet, their foreshadowing it, I think.

PN23

MR FAGIR: Can I update the Commission to this extent. It is correct to say that the employees are back at work and have been from 7.30 this morning. That means that there will need to be some adjustment to the order sought, but otherwise, we press the application as against both the employees and the unions for reasons to which I ll come in due course.

PN24

THE DEPUTY PRESIDENT: Why don t you just outline the basis of the application. I don t know the site and I don t know the agreement, I haven t handled it, so all of that information would be helpful, from my point of view.

PN25

MR FAGIR: Perhaps I can give some factual background from the bar table. Some of it is dealt with in the statements that have been filed already. Other parts of the background, if controversial, will need to be the subject of some viva voce evidence this morning. Accepting that some of these matters may be disputed, can I just lay out the background as we understand it.

PN26

The site employs 90 odd employees, the majority are members of the AWU, a smaller number are members of the AMWU and CEPU. The employees are covered by an agreement which nominally expires in the middle of this year. Bargaining for a replacement agreement has commenced and is in train. Aside from the controversies that arise in the context of bargaining, there is a separate, although not entirely disconnected industrial issue, if I can put it that way, at the site involving labour hire employees doing AWU work. If I can again, just put it in the broadest possible terms.

PN27

A dispute has been notified to the New South Wales Industrial Commission and there is a report back listed in June, but the short point is that - - -

PN28

THE DEPUTY PRESIDENT: How come it s been notified to the New South Wales Industrial Commission?

PN29

MR FAGIR: Dispute procedure in the particular agreement refers disputes to the New South Wales Industrial Commission.

PN30

THE DEPUTY PRESIDENT: I see, it s like BlueScope sort of provision, yes. I suppose they do need something to do, that s true, yes.

PN31

MR FAGIR: Absolutely, no comment. In any case, a dispute s been notified to the State Commission and there s no controversy about the capacity of the Commission to deal with it in some degree. There was, yesterday, around lunch time, a meeting of all employees across the three unions, authorised for 30 minutes. At the end of the meeting, the AWU delegate reported to his supervisor that the employees had resolved to stop work for 24 hours. There doesn t seem to have been any particular demand made and it s not entirely clear to the company what precipitated the stoppage although the very clear inference in our submission is that it related to the labour hire dispute. The employees returned to work this morning and the day shift today is at work, but yesterday s day shift or at least part of it, and last night s night shifts were lost.

PN32

In our submission, Commissioner, and I ll have to come to this in a bit more detail, but in our submission, the Commission would infer that the stoppage was related to the labour hire dispute and in circumstances where that dispute remains unresolved and where there s no other apparent trigger for yesterday s stoppage, the Commission would be satisfied that further industrial action is likely, if I can use a loose term just for the moment. It s on that basis that the orders are sought against employees and unions. We accept that there will need to be some further exploration of the degree of involvement, in using a loose term of the unions, but there s no doubt in our submissions that an order should be made against at least the employees. That s the short version of the case, your Honour.

PN33

THE DEPUTY PRESIDENT: The agreement is described as the Boral Cement Limited New South Wales Enterprise Agreement 2012.

PN34

MR FAGIR: Yes.

PN35

THE DEPUTY PRESIDENT: This nominal expiry date, I think you said, was the middle of the year. What is the actual date?

PN36

MR DEGUARA: 13 June.

PN37

MS SAUNDERS: 13 June.

PN38

MR FAGIR: 13 June 2015, your Honour.

PN39

THE DEPUTY PRESIDENT: 13 June?

PN40

MR FAGIR: I m grateful to Mr DeGuara. I can hand up a copy of the agreement if it would assist, your Honour.

PN41

THE DEPUTY PRESIDENT: Thank you, we didn t get a chance to download it this morning. Unless someone says something to the contrary, it s really a simple question, isn t it, as to whether the action - well, it might be two questions. Whether the action has been taken already was protected, and it sounds like that would be a difficult argument to run. I m not saying Ms Saunders might try and run it, but it would be a difficult argument to run. Then the next question is whether there s the possibility of ongoing industrial action so that it comes within subsections (b) and (c).

PN42

Perhaps, can I just ask the union side, is there any dispute, and I think this goes to the witness statements that have been lodged by the company. Reading them, I mean they re factual statements of events that happened yesterday mainly. Is there any contest about the contest of those witness statement and is there any contest that the action that was taken yesterday was not protected?

PN43

MS SAUNDERS: Sorry, if we could just have a moment your Honour.

PN44

THE DEPUTY PRESIDENT: Sure.

PN45

MS SAUNDERS: Thank you, your Honour. No, there s no contest that any stoppage of work that happened yesterday was unprotected action. However, there are some assertions in these witness statements about it being a 24 hour stoppage, lasting until 1.30 in the afternoon that is contested, particularly since it obviously hasn t happened that way. But again, we have very limited instructions at the moment and for the reasons I set out earlier.

PN46

THE DEPUTY PRESIDENT: Yes. Mr Fagir, do you want to continue? One question is what you want to do about these witness statements, I suppose.

PN47

MR FAGIR: Yes, the witnesses are here. If they need to be cross-examined, they re available, but perhaps as a starting point I should tender each of them.

PN48

THE DEPUTY PRESIDENT: Yes, well why not tender them. Go on, you do it in whatever order you like to do it.

PN49

MR FAGIR: I first tender the statement of Mark McCarthy made, although not yet signed, on 22 April 2015.

PN50

THE DEPUTY PRESIDENT: We ll mark that exhibit F1.

EXHIBIT #F1 WITNESS STATEMENT OF MARK MCCARTHY MADE 22/04/2015

PN51

MR FAGIR: I also tender the statement of Shawn Geary also made on 22 April 2015.

PN52

THE DEPUTY PRESIDENT: We ll that exhibit F2.

EXHIBIT #F2 WITNESS STATEMENT OF SHAWN GEARY MADE 22/04/2015

PN53

THE DEPUTY PRESIDENT: Do you, just in order to prove those witness statement and have them admitted into evidence, I m flexible how we do it, but do you want to have the people come in and swear to the statements? Is it intended there be any cross-examination?

PN54

MS SAUNDERS: We re in a bit of a difficult position your Honour. There is that one point of whether these people were told that it was a 24 hour stoppage. I don t have clear instructions, I m not in a position to say with certainty that no, there s no need for cross-examination, particular given the nature of the order.

PN55

THE DEPUTY PRESIDENT: The problem is - - -

PN56

MS SAUNDERS: It wouldn t be lengthy.

PN57

THE DEPUTY PRESIDENT: There is a requirement on us to deal with these matters speedily and I understand, and there have been other cases where issues have been taken about natural justice, but it doesn t seem to me on the face of it that these things are going to be greatly controversial, I must say, really.

PN58

MS SAUNDERS: We are not asking for a lengthy delay in any kind. It really is just the opportunity to speak to the organisers that this has been provided to who are aware of what is happening on site.

PN59

THE DEPUTY PRESIDENT: But hasn t that occurred already?

PN60

MS SAUNDERS: To a limited degree.

PN61

THE DEPUTY PRESIDENT: I m going to allow Mr Fagir to call them, because we can t really proceed, I don t think, to the next step unless we have these statements admitted into evidence.

PN62

MR FAGIR: Yes, perhaps under caution we should call first Mr McCarthy and then Mr Geary.

<MARK NORMAN MCCARTHY, SWORN [9.27 AM]

EXAMINATION-IN-CHIEF BY MR FAGIR [9.27 AM]

PN63

MR FAGIR: Sir, your name is Mark Norman McCarthy?‑‑‑That s right.

PN64

Your address for work purposes is Marulan South Road, in New South Wales?‑‑‑That s right.

PN65

Could I hand you a document? You recognise that document as a statement you made for the purposes of these proceedings?‑‑‑Yes, I do.

PN66

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN67

Thank you, your Honour. The statement having been tendered, I don t think I need to tender it again.

PN68

THE DEPUTY PRESIDENT: No, we ll we ve already marked it, so it s taken as evidence. Do the union representatives want to cross-examine Mr McCarthy?

PN69

MS SAUNDERS: Just a moment, your Honour. Very briefly, your Honour.

CROSS-EXAMINATION BY MS SAUNDERS [9.29 AM]

PN70

MS SAUNDERS: Mr McCarthy, can I take you to paragraph 32 of your statement? After you were notified that these employees were leaving work, you asked them when they were going to return, is that right?‑‑‑Yes.

PN71

Mr Latham told you that they d be coming back tomorrow?‑‑‑Yes, well, not in so many words. He explained that he wanted to have a meeting when they came back tomorrow.

PN72

MS SAUNDERS: Sure, so when we come back tomorrow. And they have come back, is that right?‑‑‑Yes.

PN73

What time did they start?‑‑‑7.30 this morning.

PN74

That s their normal start time?‑‑‑Yes.

*** MARK NORMAN MCCARTHY XXN MS SAUNDERS

PN75

Nothing further your Honour.

PN76

THE DEPUTY PRESIDENT: Can I just double check who Mr Latham is?‑‑‑Robert is the AMWU delegate.

PN77

Thank you, right.

PN78

MR FAGIR: There s no re-examination.

PN79

THE DEPUTY PRESIDENT: Thank you, you re excused. Short and sweet?‑‑‑Thank you.

<THE WITNESS WITHDREW [9.30 AM]

PN80

MR FAGIR: I call Mr Shawn Geary.

<SHAWN GEARY, SWORN [9.30 AM]

EXAMINATION-IN-CHIEF BY MR FAGIR [9.30 AM]

PN81

MR FAGIR: Sir, your name is Shawn Geary?‑‑‑Yes.

PN82

Your work address is Marulan South Road, in New South Wales?‑‑‑Very much so, yes.

PN83

Can I show you a document?‑‑‑Thank you.

PN84

Sir, do you recognise that as a statement that you ve made for the purposes of these proceedings?‑‑‑Very much so, yes.

PN85

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Very much so, yes.

PN86

That s the evidence-in-chief of Mr Geary, your Honour, thank you.

*** SHAWN GEARY XN MR FAGIR

PN87

THE DEPUTY PRESIDENT: Can I just as Mr Geary, just for my information. The mine site is at Marulan, so it s just off the freeway, is that it?‑‑‑It s just off the freeway, about 10 kilometers in here.

PN88

Thank you. We need of survey of Marulan, yes, that we all stop at when we drive to Canberra?‑‑‑Very much so, yes.

PN89

Thank you, we know where we are.

PN90

MS SAUNDERS: Well some of us do.

CROSS-EXAMINATION BY MS SAUNDERS [9.32 AM]

PN91

MS SAUNDERS: Mr Geary, yesterday you spoke to the delegates from the three unions, is that right?‑‑‑Very much so, yes.

PN92

The individuals you spoke to, they were all employees of Boral?‑‑‑Yes, they are.

PN93

They told you that there was going to be a stoppage?‑‑‑They ve asked for a stoppage, yes, very much so.

PN94

I think you mean the meeting, they ve asked for?‑‑‑I was approached by Donny Wagner and Marty Savult to ask for a site-wide meeting which I said, very much so, but because it was going to be a site wide, it would involve the other union delegates as well, so I did have a meeting with them, yes.

PN95

After that meeting, the employees left the workplace?‑‑‑Yes, after the one to half past one meeting, yes they did leave the workplace.

PN96

You asked Mr Wagner when they would be coming back, is that right?‑‑‑Very much so, yes.

PN97

He told you that they would be having a meeting at 7.30 this morning to decide?‑‑‑What he told me is that it s an outage for 24 hours. I asked him what 24 hour means, you know, whether that s half past - because they walked off the site half past one, whether it s half past one and he just said to me that they ll have a meeting at half past seven in the morning to decide the progress further.

*** SHAWN GEARY XXN MS SAUNDERS

PN98

To your knowledge, did that meeting happen at 7.30 this morning?‑‑‑No, I don t know.

PN99

But the guys are back at work now, aren t they?‑‑‑The guys are back at work, very much so.

PN100

That s less than 24 hours between now and 1.30, you d agree with that?‑‑‑Very much so, yes.

PN101

Nothing further, your Honour.

PN102

THE DEPUTY PRESIDENT: Can I just check with you Mr Geary, the meeting that took place yesterday, that was by agreement with the company was a paid meeting, was it?‑‑‑Yes, sir, yes.

PN103

It s not an entitlement, well I haven t checked the agreement, but I m assuming it s not an entitlement as such under the agreement, it s a custom and practice that from time to time the union asks for time to discuss an issue and the company agrees that it will be paid time. Is that right?‑‑‑Yes, I mean we try to do that in good faith. We don t have to give them the time, but normally, in good faith, we try to do so, yes.

PN104

Sure, understand, thank you.

PN105

MR FAGIR: No re-examination.

PN106

THE DEPUTY PRESIDENT: Thank you, you re finished, thanks?‑‑‑Thank you very much.

<THE WITNESS WITHDREW [9.34 AM]

PN107

MR FAGIR: Unless the respondents tell us that the matters that are outlined earlier are not disputed as a matter of fact, I think I need to call Mr Sleeman and lead some evidence from him, vive voce about the broader background to these proceedings.

PN108

THE DEPUTY PRESIDENT: Do you want to have a quick talk about that?

PN109

MR FAGIR: Yes, thank you.

PN110

MS SAUNDERS: Yes.

PN111

MR FAGIR: Can I outline a proposition? Perhaps that will help my friends decide whether matters need to be dealt with in evidence, or not. The first proposition is that this is a highly unionised worksite. The second is that there is bargaining in train. The third is that there is an existing industrial dispute related to the use of labour hire in AWU positions, if I can put it in those terms. The fourth proposition is that the dispute remains on foot and has not yet been resolved. They re the matters that I ll ask Mr Sleeman to give evidence about, but if they re uncontroversial, perhaps we can proceed without Mr Sleeman s evidence.

PN112

MS SAUNDERS: We don t have any objection to those, they re correct as far as I know.

PN113

THE DEPUTY PRESIDENT: You don t contest that. I might just ask, just to clarify. I think everyone s agreed that bargaining is in train, and you d expect that if the normal expiry date of the agreement is 13 June. Can you specify how many meetings there ve been, for example, in general terms?

PN114

MR FAGIR: Three meetings this month and one scheduled for next Tuesday.

PN115

THE DEPUTY PRESIDENT: All right. I take it that there s been an ongoing dispute about labour hire and as you said, that s been notified to the State Commission. When is it listed for proceedings, did you say?

PN116

MR FAGIR: 1 June meeting.

PN117

THE DEPUTY PRESIDENT: Don t want to rush into it.

PN118

MR BLAXLAND: Your Honour, just need to let you know, there has actually already been two conferences before the New South Wales Industrial Relations Commission about this.

PN119

THE DEPUTY PRESIDENT: I see.

PN120

MR BLAXLAND: The matters were in foot and there s a report back on in June.

PN121

THE DEPUTY PRESIDENT: But it hasn t been set down for argument or anything like that, it s in a conciliation stage? I m assuming from that also, that the issue of labour hire is an active issue in the bargaining as well, presumably.

PN122

MR FAGIR: I think we can put it this way, it s not really a feature of the bargaining. It s a matter that could be dealt with in bargaining, but this is a dispute that has arisen separately. It s not at the heart of the bargaining, at least, not at this stage.

PN123

THE DEPUTY PRESIDENT: No, oh well who knows where bargaining ends up. Yes, all right, I understand that, I think we all understand. So I don t think we need that evidence now.

PN124

MR FAGIR: No, it doesn t seem like it, no. Subject to dealing further with the question of any adjournment, I m content to go into short submissions, your Honour.

PN125

THE DEPUTY PRESIDENT: Sure.

PN126

MR FAGIR: In some ways, the matter is very straight forward. There is an existing industrial dispute, there s a meeting of employees and then there s a stoppage. Initially advertised as being for 24 hours, in the event, not quite that long, but on any view, a substantial stoppage that costs the company part of the day shift yesterday and the night shift overnight. The employees are back at work, which puts to bed for the moment the question of any order that industrial action stop, but as I mentioned, the company presses for orders that the industrial action not occur and not be organised.

PN127

The factual basis for such orders in our submission is an inference that in circumstances where there is an existing industrial dispute where it appears no alternative explanation has been offered yet, the existing industrial dispute precipitated the stoppage and in circumstances where the dispute is unresolved and in fact is unchanged as between 1.30 yesterday and today. In those circumstances, the Commission would very readily draw an inference that the industrial action which occurred yesterday is likely to occur again. That logic is entirely straight forward in respect of the employees.

PN128

In respect of the unions, we add that the stoppage appears to have been organised or led by the delegates. The delegates in the relevant sense are the union and the union therefore organised the action. Aside from the fact that the delegates feature at the centre of the stoppage, in any case, and certainly in the absence of any denials, even from the bar table, let alone evidence to this effect. In the absence of any denials from the unions of their involvement, again the Commission would comfortably infer that the industrial action was organised by the unions and that further action will be organised by them. The same logic that applies to the employees, the orders would be made against the unions.

PN129

I ll need to come to the precise language of the order in due course, but that is essentially the submission. This is a practical tribunal, it knows how these things work and it knows that if there s a dispute and there s a stoppage and nothing else changes, that it s likely that there will be other stoppages. There are authorities that deal with drawing of inferences in cases such as this. If there s any dispute about the notion that the Commission can draw on its practical experience for inferences of this kind, I can take your Honour to them, but I d be surprised.

PN130

THE DEPUTY PRESIDENT: You don t need to. Sorry, I didn t want to stop you there.

PN131

MR FAGIR: That s the submission as far as the substantive matter. We will need to adjust the language of the order slightly if the matter comes to that, but it might be more efficient to hear from the respondents first before we deal with that level of detail, if the Commission pleases.

PN132

THE DEPUTY PRESIDENT: Okay.

PN133

MS SAUNDERS: I should at the outset clarify the unions, all three of us, absolutely deny that we ve been involved in organising any industrial action at Boral or for that matter, anywhere else. My friend s obviously led no evidence, aside from delegates of the union having involvement in organising this. It is not sufficient to say that the delegates in the relevant sense are the union. They are not elected officials of the union, they re employees of Boral who are organising their workmates. They don t stand in the shoes of a separate organisation, so the orders insofar as they relate to the three unions, simply cannot be made. Whether they can be made in regards to the employees - - -

PN134

THE DEPUTY PRESIDENT: But that doesn t apply surely, if we re talking about an order that relates to industrial relations in the future.

PN135

MS SAUNDERS: Your Honour, you d need to be satisfied that there is some threat that the AMWU, the AWU and the CPU are going to organise that action. There s nothing there to suggest that. It s simply not happening.

PN136

THE DEPUTY PRESIDENT: In the context of an agreement being close to its nominal expiry date, in the context of industrial actions having happened, just yesterday, and the context of there being a live matter about a related issue before another tribunal, it s hard not to come to the view that such action is a significant risk anyway, if I can put it that way, in not a very legalistic form, into the future, isn t it?

PN137

MS SAUNDERS: No, I don t agree with that proposition, your Honour, I can t. The suggestion that bargaining is in some way relevant to- - -

PN138

THE DEPUTY PRESIDENT: I understand you can t agree with it, but - - -

PN139

MS SAUNDERS: I also don t. There s no suggestion that bargaining is in any way relevant to these proceedings. It s been thrown up by my friend as a kind of red herring to suggest a general atmosphere of industrial unrest that they ve been unable to substantiate on their witness statements. What you have in front of you is one stoppage between around 1.30 in the afternoon. It s not even clear from the material when work precisely stopped. It s certainly not at the end of that meeting, because efforts were taken to shut down the site safely. You ve got employees back at work. You ve got absolutely no involvement from the organisations.

PN140

It s not possible on the evidence in front of you to be satisfied that - certainly there s nothing happening, but that there s a sufficient risk that the action is threatened, impending or probable. There s been no announcement of future action. The idea that it s advertised as a 24 hour stoppage, isn t substantiated, they went back to work following the 7.30 meeting as the employer was told. It s not enough that Boral thinks that it might happen again. They ve got to satisfy to the relevant evidentiary standard. Those tests are met. Significantly, your Honour, what you don t have in front of you is any history of form, any history of past behaviour which would indicate that this kind of conduct is likely to recur.

PN141

THE DEPUTY PRESIDENT: How long has the mine been operating?

PN142

MS SAUNDERS: I couldn t tell you.

PN143

THE DEPUTY PRESIDENT: I should have asked the employer representatives then, I suppose.

PN144

MR FAGIR: Decades is about as precisely as we can get it.

PN145

THE DEPUTY PRESIDENT: Right, okay.

PN146

MS SAUNDERS: So decades of operation at a mine and no evidence of past form in these matters. It s a very long bow to say that on the sort of material that s been provided, that the orders should be made, noting that the orders would take us to a date in excess of the nominal expiry date of the agreement.

PN147

THE DEPUTY PRESIDENT: Isn t this a bit of an academic point under section, I think. Under section 417 you can t organise industrial action before the nominal expiry date. So, if an order was made that expired on the nominal expiry date of the agreement, for example, isn t that consistent with the whole thrust of the legislation?

PN148

MR BLAXLAND: Correct me if I m wrong, but I believe a protected action ballot order can actually be lodged before the nominal expiry date and the wording of the order - - -

PN149

THE DEPUTY PRESIDENT: It can be, but you can t take the action until - - -

PN150

MR BLAXLAND: Until after it is, but the wording of the order would suggest that a protected action ballot couldn t be lodged until this order had expired.

PN151

THE DEPUTY PRESIDENT: We could amend the order to that extent.

PN152

MS SAUNDERS: To address your question in perhaps a different way, your Honour, the idea that a stop order should be made just to preserve the idea that unprotected industrial action shouldn t be taken, absent any evidence that it is happening, or absent any convincing evidence that it s threatened, impending or probable, or being organised.

PN153

THE DEPUTY PRESIDENT: But it has happened. I mean it just happened, yesterday.

PN154

MS SAUNDERS: Once, it has happened, once, for a limited period of time. One occurrence of industrial action is not enough to found a suggestion that it s going to occur again and there s authority to support this proposition that my friend - it s Andritz Pty Ltd v The Australian Workers' Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2013] FWC 2451.

PN155

I believe that case refers to industrial action happening in the past, but the point still remains, it s a high buyer, it s not enough for Boral to come here and suggest we think we re doing it and to make these sort of vague suggestions without quite putting it that we think they re doing it to sort of circumvent the restriction on taking industrial action during bargaining until the agreement expires. There s absolutely no support for that proposition.

PN156

As a final point, I said at the outset that the unions have had this application for a very short period of time. The three officials here today have very limited instructions. If your Honour is minded to make the orders, what we d seek is that, at this stage, based on the evidence in front of you, what we d seek is an adjournment to allow us to put on some evidence of our own.

PN157

THE DEPUTY PRESIDENT: I was just looking at the CPU case in relation to Lendlease last year where I think it s described as Abigroup, one of their companies where this question of natural justice was dealt with. There s always a balance in these matters. I think the application that was made sought a hearing last night. For a number of reasons I didn t think that was appropriate, including the question of natural justice to the unions, but there has been sufficient notice now. There s the ability for union officials who are involved and closer to the action, as it were, to be involved and there was that ability this morning, so I m really inclined to delay the matter, given all of that. Given that in one sense, there s been some unprotected industrial action and an order wasn t made in respect of that.

PN158

I think the form of the order is something that can be debated, but in any event, I can t see that - you re talking about evidence from Mr Phillips or Mr Stewart, I can t see that that evidence is going to change what are the essential facts of what happened yesterday, which don t appear to be in contest.

PN159

MS SAUNDERS: What is in contest, your Honour, is the role of the unions as their own organisation, that s the evidence that would come directly from those people. There s an assertion solely from the bar table that the unions have organised this industrial action. It s simply not the case.

PN160

THE DEPUTY PRESIDENT: I actually don t know that Mr Fagir quite said that, frankly.

PN161

MS SAUNDERS: That s my understanding of the case and it s certainly what the orders in their current form say.

PN162

THE DEPUTY PRESIDENT: If 418(1) is satisfied, in that there is a threatened, impending or probable industrial action, it s legitimate to the union in that order, isn t it? Particularly given that in any event, given the nature of the barring (indistinct) position as I say, as a result of 417, you can t take industrial action in any event for another couple of months, subject to the point that was made about the protected action ballot order.

PN163

MS SAUNDERS: The difficulty you have there, your Honour, is you ve got no suggestion in front of you that the unions were involved in the initial action that appears to be the basis that these orders are sought. What s now being proposed is making an order that would apply and bind the AMWU, effectively a finding that we had organised or were threatening to or likely to effectively take industrial action, absent any evidence and absent any finding that we d actually done it in the first place. The orders follow that actual risk. They re not made just to remind people that they shouldn t be doing this thing.

PN164

I will say one last thing. This isn t a situation where the unions fronted up and gone, Well we haven t brought any evidence, you can t make any findings . We ve had less than 11 hours to prepare. We re willing to put evidence on in a very, very short timeframe to rebut this suggestion that the organisation s been involved in any way, and secondly, that there is any threat from employees that this will happen again in any way, which there s not and which isn t made out on the employer s evidence. We are seeking to have that opportunity, if necessary.

PN165

THE DEPUTY PRESIDENT: Mr Fagir? Does anyone else want to add to that?

PN166

MR BLAXLAND: I would not add to that, your Honour, thank you.

PN167

MR FAGIR: I can be brief. In terms of timing, as one other case, is the Full Bench in the E Allen v Fluor Construction Services Pty Ltd pointed out, when it comes to procedural fairness and opportunity to present a case in these matters, it s essential to bear in mind that the legislation, not as a immutable goal, but as a starting point requires that matters are dealt with within 48 hours. In that context where there s been notice of an intention to make an application about 2.30 yesterday, materials filed at 4 or 5 and the matter not until the next morning, there s really no - - -

PN168

MS SAUNDERS: That time frame is just not accurate.

PN169

MR FAGIR: I m told the time frame is not accurate. Can I put it this way, the materials were filed around 5 pm yesterday, at the latest.

PN170

THE DEPUTY PRESIDENT: A bit after 5, I think.

PN171

MR FAGIR: At the latest. It might be different if - - -

PN172

THE DEPUTY PRESIDENT: 5.08 I think it is, from the email.

PN173

MR FAGIR: That s a sufficient fact for the purpose of my submission. In those circumstances, and unless we re talking about some very remote location or some particular exigency that stops the officials from being here, that s adequate time in the context of an application under section 418. Apart from anything else, it hasn t been identified - - -

PN174

(Audio malfunction 9.55.54)

PN175

THE DEPUTY PRESIDENT: - - - because it involves notification in various forms to people, I think it s important that everybody, including the employees, but perhaps particularly the employees are aware of exactly what this means in a practical sense, it seems to me.

PN176

MR FAGIR: There s some force in that and I appreciate that your Honour has other matters.

PN177

THE DEPUTY PRESIDENT: I m all right with that. It s really in your hands as to the best way.

PN178

MR FAGIR: Could we have 10 minutes? I don t know if we can reach a landing, but we should try.

PN179

THE DEPUTY PRESIDENT: I think we can decide what we want to do and then obviously drafting is going to have to be done, which I m going to have to rely on you to do and we can then issue it during the course of the day, once we get a final version. I would prefer it, if there can be some practical discussion about it so that it works. I know everyone s not happy but it works as best it can in the circumstances.

PN180

Why don t we adjourn until half past, unless you let my associate know that you are ready to proceed earlier than that. Is that alright?

PN181

MR FAGIR: Yes, we agree with that, thank you.

PN182

THE DEPUTY PRESIDENT: We ll adjourn, thank you.

SHORT ADJOURNMENT [10.06 AM]

RESUMED [10.31 AM]

PN183

THE DEPUTY PRESIDENT: Mr Fagir?

PN184

MR FAGIR: Your Honour, and perhaps your associate will be happy to hear that the parties have reached a consensus in relation to the terms of the order.

PN185

THE DEPUTY PRESIDENT: Beautiful.

PN186

MR FAGIR: We would propose that my instructing solicitors will produce a revised draft, check with the respondents before sending it to your Honour s chambers. Can I just say this about the proposal, having regard to the union s denials of their involvement, we ve made this concession, that the order would not bind the unions, although it would bind the delegates of the unions as well as the employees.

PN187

THE DEPUTY PRESIDENT: It would name the delegates?

PN188

MR FAGIR: Not individually.

PN189

THE DEPUTY PRESIDENT: But as a group?

PN190

MR FAGIR: As a group. There would be a series of consequential changes to the order that flow from that. The second substantive change would be to the term of the order and it would live as it were, until 13 June 2015, that is the nominal expiry date of the agreement.

PN191

THE DEPUTY PRESIDENT: All right, okay.

PN192

MR FAGIR: There would be a couple of other non-substantive changes, but we don t think they ll be the source of any difficulty.

PN193

THE DEPUTY PRESIDENT: The notification provisions, if I can put it like that would remain, essentially. Is that right?

PN194

MR FAGIR: Insofar as they bind the unions, they would be removed, but the provision for service on the employees, would remain. It is 5.4.

PN195

THE DEPUTY PRESIDENT: Understand, okay. Can I just say, with respect to just the mechanics of this, I m confident that Ms Anderson can talk to my associate about this, but can I just say I think the best thing to do might be if we send a template to Ms Anderson of the order because there are issues in terms of formatting and so on, that I don t pretend to understand. If we do that, and then if my associate can liaise with Ms Anderson, I think that s probably the most efficient way during the course of today.

PN196

MR FAGIR: No difficulty from our end, your Honour.

PN197

THE DEPUTY PRESIDENT: Yes, thank you. Do you need to - - -

PN198

MS SAUNDERS: No, nothing further from us, your Honour.

PN199

THE DEPUTY PRESIDENT: You agree with that?

PN200

MS SAUNDERS: We raise it as a course of action, yes.

PN201

THE DEPUTY PRESIDENT: All right, thank you. I think on that basis we are adjourned and we will issue the order in the form agreed, as soon as we can. Thank you.

ADJOURNED INDEFINITELY [10.34 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F1 WITNESS STATEMENT OF MARK MCCARTHY MADE 22/04/2015 PN50

EXHIBIT #F2 WITNESS STATEMENT OF SHAWN GEARY MADE 22/04/2015 PN52

MARK NORMAN MCCARTHY, SWORN........................................................ PN62

EXAMINATION-IN-CHIEF BY MR FAGIR..................................................... PN62

CROSS-EXAMINATION BY MS SAUNDERS................................................. PN69

THE WITNESS WITHDREW.............................................................................. PN79

SHAWN GEARY, SWORN................................................................................... PN80

EXAMINATION-IN-CHIEF BY MR FAGIR..................................................... PN80

CROSS-EXAMINATION BY MS SAUNDERS................................................. PN90

THE WITNESS WITHDREW............................................................................ PN106