C2015/4312, Transcript of Proceedings [2015] FWCTrans 443 (29 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052139

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COMMISSIONER SIMPSON

C2015/4312

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

UGL Engineering Pty Ltd

and

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Construction, Forestry, Mining and Energy Union

(C2015/4312)

Brisbane

11.23 AM, FRIDAY, 12 JUNE 2015

PN1

THE COMMISSIONER: Good morning, it s Commissioner Simpson speaking. I ll start with appearances. For the applicant?

PN2

MR C GIANATTI: Thank you, Commissioner. Gianatti, initial C seeking permission on behalf of UGL. I also have on another phone with me Mr Elliot for UGL.

PN3

MR ELLIOT: Good morning, Commissioner.

PN4

THE COMMISSIONER: Good morning Mr Elliott. And for the respondent unions?

PN5

MS R HUSKIE: If it pleases the Commission, my name is Huskie, initial R. I m appearing on behalf of CFMEU.

PN6

THE COMMISSIONER: Thank you Ms Huskie.

PN7

MS K ALLEN: If it pleases the Commission, my name is Allen, initial K. I appear on behalf of the AMWU.

PN8

THE COMMISSIONER: Thank you Ms Allen.

PN9

MS INGLIS: If it pleases the Commission, my name is Inglis, initial K. I appear for the CEPU in this matter.

PN10

THE COMMISSIONER: Thank you Ms Inglis. Is there any issue taken by any of the unions to representation for UGL?

PN11

MS HUSKIE: On behalf of the CFMEU, not at this time.

PN12

MS ALLEN: Commissioner, we have a general issue in terms of why organisation like UGL are being represented. I understand that Mr Elliot is a man great expertise in these areas and has been around a long time. We feel that it would be more appropriate if Mr Elliot appear for the company. However, in order for the matter to be expedited, today we re happy for Mr Gianatti to be involved, but we do note our general displeasure that companies do bring along representatives and we say they re duly able to be represented by themselves, if it pleases.

PN13

THE COMMISSIONER: Thanks Ms Allen.

PN14

MS INGLIS: Thank you, Commissioner. The CEPU s view is the same as that expressed by Ms Allen.

PN15

THE COMMISSIONER: All right, thank you. Given the nature of the urgency of these section 418 matters and given it appears to be the case that Mr Gianatti, as the law firm acting on behalf of the respondent has been involved in preparing material, and that these matters to need to be expedited, I am satisfied that it would enable the matter to be dealt with more efficiently taking into account also some complexity in the section 418 matters, to grant permission. So Mr Gianatti I grant you permission to appear.

PN16

MR GIANATTI: Thank you, Commissioner.

PN17

THE COMMISSIONER: Are there any housekeeping matters? There s an issue I wish to raise, but are there any issues from the parties before I raise what I want to raise?

PN18

MS HUSKIE: Commissioner, the CFMEU would like to apply for an adjournment in the matter, purely on the basis that we ve received the witness statements quite late in the peace. I ve personally only received them at around 10 am this morning and I haven t been able to get instructions in regards to those statements at this time.

PN19

THE COMMISSIONER: Yes.

PN20

MS ALLEN: Thank you, Commissioner. Likewise, we are seeking an adjournment to get some instructions. I note that my union has not been served with the witness statements. I have checked with our national office and there has been no emails received, no faxes received with respect to the witness evidence. Ms Huskie very kindly brought along copies and I ve had them since about 10.45 am, so I have had a quick look, but have not had an opportunity to seek instructions.

PN21

I d also like to place on the record our displeasure in terms of the way the respondent has sought to serve our union with respect to the application. I was not aware that the application had been filed until this morning. We received a fax after hours last night. As you can imagine, our administration staff who looks after the faxes were not there, therefore I wasn t notified until an administrative person checked the fax this morning. I also understand that- - -

PN22

THE COMMISSIONER: What time was it faxed to your office?

PN23

MS ALLEN: 5.14 Commissioner. Now I note in the application they talk about one of the issues in relation to this matter that they say is determinative or I assume is determinative is that there were right of entry notices filed at 9 am yesterday morning and that that is cause for concern in terms of their probability arguments, Commissioner. If that is indeed the case, and that is a genuine concern, then why did they file or at least serve us with an application outside of business hours.

PN24

THE COMMISSIONER: The application was filed at 4.25.

PN25

MS ALLEN: Well we didn t get the application until after hours, so we didn t have an opportunity to seek instructions. If I d been aware of it before close of business, I would have been able to seek instructions, Commissioner.

PN26

In addition to that, I have been made aware that an email was sent to our general email address last night as well after hours. Once again, our admin staff are the people who look at that. They need to be sending these things to officials who have access to their phones. Companies like UGL have our organiser s email address, our state secretary s email address, industrial officer s email address, so it s just made it very difficult for us to be able to get instructions.

PN27

On that basis, we are seeking an adjournment to get further instructions, most specifically in relation to the witness statements.

PN28

THE COMMISSIONER: What particular elements of the witness statement do you need to get instructions on?

PN29

MS ALLEN: Firstly, I haven t had a full opportunity to read all of it and so I haven t made a full assessment on that Commissioner. Secondly, I need to speak to our organiser who is up there as well as the union s executive, either the state secretary or the assistant state secretary because I need instructions from them as well in terms of this matter.

PN30

THE COMMISSIONER: All right. Ms Inglis?

PN31

MS INGLIS: Commissioner, I m not sure exactly when we were served. I know that I didn t receive anything until this morning. I haven t been as thorough as Ms Allen and checked whether it was a fax. I just don t know. I received it quite late in the peace and I d also appreciate an opportunity to have some discussions with my union.

PN32

THE COMMISSIONER: All right. Mr Gianatti what can you say about service?

PN33

MR GIANATTI: Commissioner, to the extent that I won t suggest my friend is seeking to cast aspersions, but if they are about serving after hours, we ve done the best possible with the addresses we were able to properly find at the time to notify them in many different ways via email, fax and what not. We served the organisers this morning as I understand it at 9 am. To the extent that my friends cry outrage, this is an urgent application. We ve done the best in the circumstances. In fact it s typical that you would need to get a witness statement till right at this minute. Despite all those attempts at service and despite acknowledgements of people haven t actually received the applications, no one contacted me at all. This is the first conversation we ve had.

PN34

MR ELLIOT: Commissioner, if I might just add to that, at 4.05 yesterday I personally phoned both the assistant state secretary and the local organiser from the AMWU to alert them to the fact that the application was being made and that it would be forwarded and served on them shortly.

PN35

THE COMMISSIONER: It seems to me the issue that I m grappling with here is the issue of procedural fairness, given there s been a couple of witness statements come in and I ve got respondents to the application saying they need to take instructions on them, at least in the case of Ms Allen, she s saying she hasn t even read them yet. I m inclined to grant an adjournment, the question is how long we need. I m also cognisant of the fact that at least from the material it appears to be said that there s proposed to be a - or at least the applicants understand that there s some proposition of a meeting this afternoon at around 2 o clock, I think it is Mr Gianatti, isn t it?

PN36

MR GIANATTI: Yes, that s correct, Commissioner.

PN37

THE COMMISSIONER: All right. Can I just clear up one other issue though, and I guess I raised this with you Mr Gianatti? I had an acting associate yesterday in my chambers, but I think I understand they had a discussion with someone, I think it was yourself, just in terms of who the application is directed to. I notice you filed an amended draft order this morning.

PN38

MR GIANATTI: Yes.

PN39

THE COMMISSIONER: But as we are here at the moment, the application is directed to the unions, their officers, agents and delegates.

PN40

MR GIANATTI: Yes.

PN41

THE COMMISSIONER: All right. But it s not directed to employees generally or members generally?

PN42

MR GIANATTI: No, it s not.

PN43

THE COMMISSIONER: No, all right. Can I just flag an issue for you to contemplate? I m not expressing any particular opinion at this stage, but there is clear authority, and I appreciate these things have to be dealt with hastily, so you know, you ve always got to bear that in mind. I raise that question - thanks for clarifying that because the language in terms of the stop order, that is sought in the draft order, appears to be directed to include not commencing engaging or threatening to engage in, or organising industrial action .

PN44

Given that the application is directed to the unions, their officials and delegates, then with the exception of the delegates perhaps, unions themselves don t take industrial action.

PN45

MR GIANATTI: No, I might have put that Commissioner but that order is directed at the delegates. We haven t included the members as yet because we were unable to identify who are members and who are not members, but I would seek leave to add the members if that would assist. I was just unable to identify them, because I don t have them.

PN46

THE COMMISSIONER: No, no, that s fine. I just wanted to clarify, to be clear with you, and I think you ve answered the question.

PN47

MR GIANATTI: I do understand that, Commissioner.

PN48

THE COMMISSIONER: The order is directed to the unions and without getting too technical at this stage, I think there s clear authority to say orders are available. It s within power to make an order against the union to stop organising industrial action. It s generally not within power unless there s some exceptional circumstances to order a union not to take industrial action because unions don t take industrial action, employees take industrial action.

PN49

MR GIANATTI: Yes, and to that extent Commissioner, I guess the adjusting of the order is meant to be amended and I agree with the point. The intention anyway of the draft order, to the extent that it involves the taking or engaging in of industrial action is very specifically the delegates in terms of the way it s drafted now and I appreciate that it can t be official and we seek leave to amend to add members, if that s permissible.

PN50

THE COMMISSIONER: So you are seeking an amendments to the application so that it extends to members of the unions?

PN51

MR GIANATTI: Yes.

PN52

THE COMMISSIONER: Well clearly that s going to strengthen. If I was of a mind to grant the application - I mean obviously the nature of the legislation is clearly that these matters are dealt with expeditiously. It s clear from the material that s filed in support of the application that you allege there s things happening on site as we speak. At the same time, I m particularly mindful of recent authority that deals with this question of procedural fairness.

PN53

MR GIANATTI: Yes Commissioner, I m onto that issue as well. I would appreciate your perspective on that as well.

PN54

THE COMMISSIONER: I refer to the authority particularly of the Federal Court decision, the full bench of the Federal Court in CEPU v Abbey Group. So given the fact that it appears that the witness statements haven t had a chance to be read, I m inclined to grant - clearly it s being flagged here that you re seeking an application to amend the application to the extent that you wish it to cover members of the unions as well as delegates. At the moment it s not directed to members, so I think you need to formalise that and send something through. But given the state of play in terms of procedural fairness, I m inclined to grant an adjournment for at least a couple of hours.

PN55

MR GIANATTI: Yes Commissioner, well we re in your hands on that. We certainly propose that the opportunity is certainly for instructions, is clear on that as well.

PN56

THE COMMISSIONER: Obviously the situation is that the application was filed before close of business yesterday. The file indicates that it was filed at 4.25. The unions are saying - I mean you re saying that you told senior officials in the union you were intending to file the application. The people in the room here on behalf of the unions are saying they didn t get a chance to see it until this morning.

PN57

MS ALLEN: Commissioner, may I just add that there is a distinction between them sending emails to general email accounts. If Mr Elliott did indeed call each respective assistant state secretary, why didn t he provide his representative with, for instance, in my union s situation Mr Terry Bradley s email address. So this is the difficulty. If there has been some communication, there s a difference between saying we are going to file an application as opposed to physically getting an application in the hand.

PN58

THE COMMISSIONER: No, I understand that. Look can I ask you all this? Would there be any benefit in us adjourning into conference and having a discussion around these issues?

PN59

MS ALLEN: We would be more than happy to do that, but we may also need to seek instructions from our assistant state secretary.

PN60

THE COMMISSIONER: What s your view Mr Gianatti?

PN61

MR GIANATTI: We have no objection at all to that Commissioner.

PN62

THE COMMISSIONER: All right then.

PN63

MS INGLIS: We don t have any objections to that.

PN64

THE COMMISSIONER: Obviously part of the reason I m asking you about that is to explore whether or not we can find another way to resolve this. Why don t we adjourn into conference. I m inclined to grant an adjournment, but why don t we go into conference first and see where we get to. Thanks.

PN65

MR GIANATTI: Yes.

PN66

THE COMMISSIONER: We ll go into conference.

OFF THE RECORD [11.38 AM]

ON THE RECORD [1.19 PM]

PN67

THE COMMISSIONER: All right, is everyone ready to go back on the record?

PN68

MS ALLEN: Yes, Commissioner.

PN69

THE COMMISSIONER: We ll go back on the record now. We had some discussions in conference for some time attempting to see if some agreement could be reached between the parties that could be a basis for this matter to be resolved without the need for hearing.

PN70

Unfortunately we haven t been able to get to an agreement that would achieve that, so on that basis I ll return to the earlier discussion we had this morning in hearing about the application for an adjournment on the basis that there is advice from a number of respondents that they haven t had sufficient time to either read material or take instructions on it. On that basis, I am satisfied it s appropriate to grant an adjournment. I propose to adjourn the matter until 4 pm this afternoon. We ll reconvene at 4 o clock and at that stage, I m anticipating that we re prepared to proceed with the application.

PN71

Any issues?

PN72

MR GIANATTI: Commissioner, it s Mr Gianatti here, can we clarify that that s the position of each of the unions that they continue to press for the adjournment with nothing offered up?

PN73

THE COMMISSIONER: I m just not sure Mr Gianatti what you mean?

PN74

MR GIANATTI: Are each of the unions all of the same mind about continuing the application, or continuing their defence of the application in the same way?

PN75

THE COMMISSIONER: I understand that s the case, yes.

PN76

MR GIANATTI: Right, okay.

PN77

THE COMMISSIONER: Yes. Just to be clear, the reasons for me granting the adjournment are based on the submissions made earlier today.

PN78

All right, thank you for that. At this stage, unless I hear anything otherwise between now and 4 o clock, I m intending for us to reconvene at 4 o clock.

PN79

MR GIANATTI: Sorry Commissioner, my apologies, just one outgoing matter on the regularisation of our application.

PN80

THE COMMISSIONER: Yes.

PN81

MR GIANATTI: Is it possible to get the emails of just the industrial officers offline so that that can be sent through and we won t have any more objections.

PN82

THE COMMISSIONER: I think that s a discussion you can probably have privately after I ve adjourned. Any issues for the other officers of the unions?

PN83

MR GIANATTI: (Indistinct) how I get hold of their details. That information to your associate, that would be appreciate.

PN84

THE COMMISSIONER: Yes, that s sensible. Just to go back on that issue, as I understand from the earlier submissions this morning, you foreshadowed an application to amend the application to extend it to cover members of the unions.

PN85

MR GIANATTI: Yes, we ve been through that point, Commissioner, because there might be a further issue involved in that.

PN86

THE COMMISSIONER: Yes, all right then. Thank you.

LUNCHEON ADJOURNMENT [1.22 PM]

RESUMED [4.13 PM]

PN87

THE COMMISSIONER: Good afternoon, Commissioner Simpson here. Just for the record, because not all parties are not in the room, I might just confirm appearances again. For the applicant?

PN88

MR GIANATTI: Yes Commissioner, Gianatti, initial C, by permission with Mr Elliot from the Company on the other line.

PN89

THE COMMISSIONER: Yes, Mr Elliot, you re still there?

PN90

MR ELLIOT: Yes I am, Commissioner.

PN91

THE COMMISSIONER: Can you appraise me of developments since we adjourned on the last occasion?

PN92

MR GIANATTI: Yes Commissioner. The report back from site was that at 2 o clock the right of entries meetings commenced. The ETU official arranged and held his meeting in the appropriate crib room as instructed. The CFMEU and AMWU however did not attend their, or left their respective crib areas and went back down to the store s location for a mass meeting. We were instructed that the representatives of the occupier (indistinct) CSNT representatives chased the AMWU official and the CFMEU official about that. The AMWU official was eventually escorted from site but the mass meeting continued.

PN93

At 2.30, whilst the employees resumed work, in our view, all is not well at the site and we ve also now received a section 117 Work Health & Safety Act notice of entry by the CFMEU.

PN94

THE COMMISSIONER: It seems to me really what you re canvassing are issues about whether or not right of entry protocols or legislative requirements are being complied with.

PN95

MR GIANATTI: Sorry Commissioner, I ll make sure it s said in the proper context. What we are canvassing is that relevant consideration to you as to whether the industrial action remains probably or is continuing to be organised.

PN96

THE COMMISSIONER: All right. Ms Allen, you wanted to say something?

PN97

MS ALLEN: Yes, thank you, Commissioner. I have very brief instructions about what s happened since we were last before you. I confirm that there were meetings during the meal breaks and I think this is highly relevant. The respondent s representative seems to be characterising these meetings as something other than what they actually were. These were employees during their meal breaks, having a meeting.

PN98

My instructions are that after the end of their assigned meal break our members returned to work. The application made by the respondent is on the basis of a probability of industrial or unprotected industrial action happening at these 2 pm meetings. No action has occurred, arising from these meetings. The members have returned to work, the grounds for application therefore have not materialised. We say there is no jurisdiction for this matter and seek for the application to be dismissed.

PN99

I understand that the respondent s representative is advancing issues that aren t within the auspices of this provision that the application is being brought forward. Our view is that there are issues, that there are appropriate mechanisms under the Act for that to occur but these proceedings are not (indistinct), if it pleases.

PN100

THE COMMISSIONER: All right. Is there anything from any of the other two unions?

PN101

MS HUSKIE: No, Commissioner. We support and reiterate what the AMWU has stated.

PN102

MS INGLIS: Commissioner, we re in the same position as the AMWU has stated.

PN103

THE COMMISSIONER: Yes, all right. Look I know we ve already been through an exercise today, but look I m going to ask if there s an issue. Mr Gianatti, are you prepared to have a discussion with me briefly privately before we proceed to hearing?

PN104

MR GIANATTI: Yes Commissioner.

PN105

THE COMMISSIONER: Mr Elliot?

PN106

MR ELLIOT: Yes, that s totally fine.

PN107

THE COMMISSIONER: Can you just give us the room please? Thank you.

PN108

We re just going to go off record now.

OFF THE RECORD [4.18 PM]

ON THE RECORD [4.35 PM]

PN109

THE COMMISSIONER: All right, we re back on the record. Now Mr Gianatti, I ll just invite you now to address the Commission.

PN110

MR GIANATTI: Yes, thank you Commissioner for the opportunity to take some instructions. Our preferred view remains that where there s smoke there s fire, Commissioner. Unfortunately in this case protocols aren t being followed and that we believe that the unions continue to organise industrial action.

PN111

Nevertheless, we re certainly glad to have been able to bring the matter to the Commission s attention and that industrial action has been organised on site and that there are ongoing issues and we certainly seek the parties and Commission s support in that where issues arise, and we understand there is a live issue on site and that the disputes procedure be observed from now on. We re glad to have brought it to the Commission s attention and on that basis we ll discontinue tonight. We look forward to the Commission s assistance over the coming weeks.

PN112

THE COMMISSIONER: Thank you Mr Gianatti. Is there anything from any of the union parties? The matter is being discontinued.

PN113

MS INGLIS: No Commissioner.

PN114

MS HUSKIE: No.

PN115

THE COMMISSIONER: Thank you all. Unless there s anything further, I m going to adjourn on that basis. No? All right, thank you.

ADJOURNED INDEFINITELY [4.36 PM]