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Fair Work Commission Transcripts |
TRANSCRIPT
OF PROCEEDINGS
Fair Work Act
2009
1052461
COMMISSIONER GREGORY
C2015/6089
s.418 - Application for an order that industrial action by employees or employers stop etc.
Toll IPEC Pty Ltd
and
National Union of Workers
(C2015/6089)
Melbourne
12.54 PM, WEDNESDAY, 16 SEPTEMBER 2015
PN1
THE COMMISSIONER: Good afternoon everyone, I'll take the appearances in this matter, please.
PN2
MR H SKENE: If the Commission pleases, my name is Skene, initial H, I seek permission to appear on behalf of Toll IPEC Proprietary Limited.
PN3
THE COMMISSIONER: Thank you, Mr Skene.
PN4
MR D MUJKIC: If it pleases, Dario Mujkic appearing for the National Union of Workers. I don't object to my friend's appearance today.
PN5
THE COMMISSIONER: Thank you, Mr Mujkic. I appreciate that, but I better just hear from Mr Skene as to why he believes it's appropriate that permission be granted.
PN6
MR SKENE: Thank you, Commissioner, so the relevant statutory provisions governing permission is set out in section 596 of the Act, and what it requires is that the Commission be satisfied that the appearance of the representative would enable the matter to be dealt with more efficiency, taking into account complexity. Here we're dealing with legal rights and obligations, unlawful industrial action, that's having a significant impact on the employer. It's appropriate that in those matters the employer be guided by legal representatives who can advise about the rights and obligations, the boundaries of the Act concerning when industrial action can be taken and when it can't, and how the triggers under section 418 would require an order to issue here.
PN7
Importantly, the submission that we made before you today, Commissioner, is that industrial action is both happening but also impending or probable, and we anticipate there's going to be controversy about that and, again, that requires consideration of the authority such that the most efficient course would be for expert counsel to be available to assist the employer in guiding you through those issues. There's also a question of unfairness coming to paragraph (b), given that Mr Rau is not an expert in those matters who wouldn't be able to provide that guidance, the best result - or the appropriate results most likely to be achieved if representation is granted and Toll IPEC would be disadvantaged without the opportunity to put those matters in front of you, Commissioner. So they're the grounds that we would rely upon, unless you require anything more detailed.
PN8
THE COMMISSIONER: No, thank you, Mr Skene. I'm happy to grant leave to you on the basis particularly of the provisions contained in section 596(2)(a). Perhaps just at the outset - I just apologise at the outset, I guess, the changing landscape in terms of when this matter was going to be listed, but obviously I was trying to balance the desire of the applicant, as I understood, to have this matter dealt with as quickly as possible but obviously the situation of the respondent as well in terms of enabling them to, well, firstly to be available and to be in a position to be able to respond, so I thank you both for accommodating that situation. Perhaps, Mr Skene, it's appropriate if I hear from you at this stage, at least in summary about where the matter is at at this stage and how you believe it appropriate for it now to be dealt with.
PN9
MR SKENE: Yes, Commissioner. Toll IPEC's position is that it presses its application for orders. The current status is that industrial action in relation to the relevant group of employees, who are the PM shift employees, commenced on the 14th of September in the form of an overtime ban. The usual practice at this site is that work continue until all the available work is done and ordinarily that involves employees continuing to work beyond cessation of ordinary hours for a period of 2 to 3 hours on each occasion. The evidence will be, Commissioner, that it's unprecedented that a group of employees doesn't wish to participate in that overtime and, in fact, the only reason that it has not occurred on the 14th of September is that there is an underlying dispute in relation to some pending redundancies which are due to take place in November. So that's a matter that's also the subjection of an application before you, an application by my client, Toll IPEC, to deal with, under the disputes procedure of the agreement, various matters concerning implementation of the redundancies, and they will be briefly traversing evidence.
PN10
Following discussions at site yesterday in relation to these issues there was an escalation by the PM shift employees who were ordinarily rostered to work at 2 pm. They failed to commence work and instead called an unauthorised stop work meeting. At that meeting, we understand that various matters concerning underlying redundancy dispute were discussed, and there was a refusal to commence work until they had received instructions from the NUW organiser. That person then attended the site and there were meetings between union representatives and employer representatives. The substance of the communication at the end of those meetings was that the employees would not return to work until their concerns were addressed, and there was a list of demands made. The employer made it clear that it would not accede to those demands under those circumstances, that it was prepared to consider continuing consultation in relation to the issues, but when that outcome was communicated, including a direction that the employees return to work, the employees met for a short period and then left the site at approximately 6.40 pm.
PN11
So, in substance, Commissioner, there are three things.
PN12
THE COMMISSIONER: Mr Skene, and that was how many employees out of the total number working on the PM shift?
PN13
MR SKENE: There was a small number who continued working but who did not attend the stop work meeting, so 44 ceased work, and that was all the ones who attended the stop work meeting.
PN14
THE COMMISSIONER: Thank you.
PN15
MR SKENE: And the order is sought only against those PM shift employees.
PN16
THE COMMISSIONER: Thank you.
PN17
MR SKENE: So there are three key things to take from all of that, we say, Commissioner: first, that there is industrial action happening in the form of an overtime ban; second, there is industrial action happening in the form of an indefinite cessation of work until their demands are met; third, there is industrial action, if you weren't satisfied as to that, that is impending or probable, and one would expect that, given the steps have been taken, they will continue to be taken as has been communicated to the company by the NUW representatives. There's no evidence to the contrary. The NUW's had an opportunity to address its members and tell them to return to work, and it expressly, despite its participation in those meetings, expressly refused to do so.
PN18
THE COMMISSIONER: Yes, so Mr Skene just so I'm clear, I understand what's - from the submissions you've made in regard to what occurred on the PM shift two nights ago and what occurred on the shift yesterday, what is it that you say leads you to believe that that action is threatened, impending, probable in terms of the PM shift this afternoon?
PN19
MR SKENE: Our primary submission, Commissioner, is that it's in fact happening because that ban has not been withdrawn and it's a continuing ban, so that's our primary submission, and the second way our argument is put is in relation that's in relation to the overtime ban the second aspect of the industrial action which concerns the unauthorised stoppage of work. At the conclusion of the meeting and Mr Rau will evidence to this effect shortly but two things happened. The union said we're not going to direct them to return to work and he also said we want a number of issues dealt with before the guys will return to work and then articulated those issues, so the status quo presently, Commissioner, is those issues have not been resolved; the company offered to continue talking, but despite that offer to consult, the employees and the union have elected to exert pressure through unlawful industrial action and they've made it clear that that pressure will continue until their demands are met. Now, if following Mr Rau's evidence that is the state of the evidence before you, in my submission that would lead you to a conclusion that industrial action is both happening and impending or probable.
PN20
THE COMMISSIONER: Mr Skene, just in terms of the timeframe and the immediacy of this matter, I mean, one possible option in terms of how this matter might be dealt with is the possibility of an interim order being made until such time as the matter is able to be heard and determined to finality.
PN21
MR SKENE: Yes.
PN22
THE COMMISSIONER: What submissions would you make in response to that suggestion?
PN23
MR SKENE: Well, in order for you to be satisfied that an interim order is appropriate, you must first be satisfied that you are unable to deal with the matter now. We're here ready to deal with it now. The factual circumstances are confined. Perhaps if my friends have reasons that their people are not here, you obviously would need to take them into account, but as things stand we say the state of the evidence here is complete and it gives you a complete basis to proceed, and there has been an opportunity to be heard; I mean, one thing to bear in mind here is that we were all supposed to be before you originally at 2 o'clock in relation to the underlying dispute, so I would say that the silence from my friend is something from which you can draw inferences.
PN24
THE COMMISSIONER: Thank you. I'm just wondering, Mr Mujkic, do you want to make some comments at this stage by way of some opening submissions in response, or is it appropriate that we now proceed to hear Mr Rau and his evidence?
PN25
MR MUJKIC: I can make some comments. I'll be really brief though because I think we need to hear the evidence. Just on that issue that you've canvassed with my friend then about the interim order, I think my friend's correct. You need to be satisfied that you can't determine the matter, so I think we probably can't make any comment about that until we've heard the evidence and we'll make a call on whether or not you can be satisfied.
PN26
What I'll say by opening is this that the order that the applicant seeks goes to four things: 1) stopping the action, 2) stopping the organising of the action by the NUW, 3) stopping the organising of the action by employees, and 4) requiring the employees to not continue or recommence any action. My submission will likely be that after I hear Mr Rau's evidence that there's no action actually taking place, so we can't stop action that is not occurring; secondly, there will be insufficient evidence about who if anyone has organised the action, so we can't make orders about that, and, lastly, we can't make orders to not continue or recommence action unless you're satisfied that action is threatened, impending or probable, and I don't think the evidence will show that action is threatened, impending or probable and you need to be satisfied of each of these things for the order to touch on them, so if you're satisfied that action is threatened, well, that's not enough to stop action being organised; if you're satisfied that action's been organised but not threatened, well, that's not enough to stop action continuing or recommencing. That's all I wish to say by way of opening unless, Commissioner, you wanted to canvas anything with me.
PN27
What I did want to say, and me and my friend had a brief discussion - that's before we started was, I think, that it's wise so there's another matter before you at 4 o'clock today that goes to the underlying issues here, and regardless of whether the Commission determines the order that's sought or a different order or no order at all, I think we should have a brief conference after this matter is determined or dealt with to discuss how the parties might deal with the underlying issues in the short term. Do we reconvene at 4 o'clock today or do we not? What communication needs to be expressed about that? So I just want to flag that at this early stage.
PN28
THE COMMISSIONER: I'm happy to be involved in that process if that's what both of you wish, and certainly I'm happy to be involved at any stage if the Commission can assist at all in terms of dealing with the underlying issues that lie behind this matter. Thank you for that.
PN29
MR SKENE: Thank you, Commissioner. Just prior to calling Mr Rau, just in relation to that last point, my client's primary objective at the moment is that such discussions should occur free from industrial action, and subject to the outcome of your consideration of that matter it may be useful to discuss how the other matter's dealt with at the conclusion of these proceedings, but beyond that I call Aaron Rau.
THE COMMISSIONER: Thank you.
<AARON JOHN RAU, SWORN [1.09 PM]
THE COMMISSIONER: Thank you, Mr Rau.
EXAMINATION-IN-CHIEF BY MR SKENE [1.09 PM]
PN32
MR SKENE: Would you please state your name, address and occupation?‑‑‑Aaron John Rau, (address supplied) and I'm the general manager of human resources, industrial relations and safety, Toll IPEC.
PN33
Have you prepared a statement in connection with these proceedings?‑‑‑Yes.
*** AARON JOHN RAU XN MR SKENE
PN34
I've just been passed a document of some 8 pages and 53 paragraphs. What is that document?‑‑‑Yes.
PN35
What is that document?‑‑‑This is my statement.
PN36
Have you read it recently?‑‑‑Yes.
PN37
Is it true and correct?‑‑‑Yes, it is.
PN38
Commissioner, I seek to tender that.
THE COMMISSIONER: Thank you, I'll mark that T1.
EXHIBIT #T1 WITNESS STATEMENT OF 8 PAGES AND 53 PARAGRAPHS OF AARON RAU
PN40
MR SKENE: Mr Rau, in your statement you give some evidence about the overtime practices at paragraph 18. What are the terms and conditions of employees in relation to an obligation to work overtime?‑‑‑Yes, so the contract of employment that all employees receive and agree to when they start employment with Toll IPEC is that they are required to work from time to time overtime outside of their ordinary hours.
PN41
Mr Rau, you also give some evidence in your statement about this is at paragraph 14 in relation to the redundancy process. As things stand today, what is the anticipated date of implementation of redundancies at the site?‑‑‑So in line with the Melbourne Airport site, the 20th of November will be the effective date of exit for those redundancies.
Thank you, no further questions, Commissioner.
CROSS-EXAMINATION BY MR MUJKIC [1.12 PM]
PN43
MR MUJKIC: Mr Rau, you say in your statement that there are 99 permanent freight loaders who were on the PM shift, yes?‑‑‑That's correct.
PN44
How many would be rostered on on a normal day out of those 99?‑‑‑All of them.
*** AARON JOHN RAU XXN MR MUJKIC
PN45
All of them, and are there additional casual workers on a PM shift on a normal day?‑‑‑Yes.
PN46
How many approximately?‑‑‑It's dependent on volumes.
PN47
So on a normal day can you estimate a number would it be half a dozen or would it be more along 20 or 30?‑‑‑Look, as I said, it depends on volumes; it could be anything from 10 to it could be anything to 20 to 30. It depends on volumes and seasonality, yes.
PN48
You say in your statement and you've got it in front of you, it's in paragraph 29 just to assist you you're referring here to Mr Mastroianni calling other PM shift employees away from their workstations, and you say these employees stopped working and held an unauthorised meeting. Do you know how many employees that's referring to?‑‑‑I couldn't give you the exact number, no.
PN49
You weren't there when this happened, were you?‑‑‑Not when he called that meeting, no.
PN50
So you don't know how many employees stopped working at that point in time?‑‑‑No.
PN51
You also say that you believe that most, if not all, PM shift employees are NUW members. How do you know that?‑‑‑I can't give you an answer as to why I would know that. We have a number of non-TWU members and as far as knowing the exact numbers I could not tell you what the exact numbers of members are.
PN52
You've been a IR and HR practitioner for some time. It is common that union members will often have their pay deducted by the employer and then those union fees will be remitted to the union.---Mm.
PN53
Now that's a way of assessing, to some extent, a level of membership, isn't it, you'd agree? So that's not occurring at that facility though, in relation to the NUW and NUW members is it?‑‑‑That's correct.
PN54
So there's no way for the employer to accurately assess who is a member of the NUW and who is not?‑‑‑No, there isn't.
*** AARON JOHN RAU XXN MR MUJKIC
PN55
Now, at paragraph 30 of your statement, you are talking about what Mr Mastroianni told Robert and Mark, who are tow mangers of the business, and your statement says that Mr Mastroianni told Robert and Mark that PM shift employees would not be returning to work until Mr Stops, who is the NUW organiser, arrived at the Altona site. Now you weren't there when this conversation took place, were you?‑‑‑No, but I was informed of that.
PN56
Then you were involved in the meetings that took place that afternoon, correct?‑‑‑Yes.
PN57
Now, it's true that during those meetings Mr Stops, the NUW organiser, did make it clear that he had told NUW members "to present to work at 2 pm today", that's correct, isn't it?‑‑‑That's not my understanding.
PN58
Did Mr Stops not tell you and the other representatives that he directed - well, not necessarily directed, but he told members that they needed to turn up at 2 o'clock today and be ready and willing to work?‑‑‑He has not told me that.
PN59
So you say there were 20 or 25 employees who continued working and you understand that those employees were either members or the TWU or not members of the union, but you don't actually know that, do you?‑‑‑Well, I know they are TWU member, yes, I do.
PN60
Okay, but you wouldn't know - so how many of those are TWU members?‑‑‑My understanding is that there's 10 to 12 TWU members.
PN61
Okay, well, the other employees who continued working - in your evidence that's, you know, another 10 to 12, you wouldn't know if they are members of the union or not, would you?‑‑‑No.
PN62
And you wouldn't know out of the employees who weren't working and, in your evidence, should have been working, you wouldn't know if they're members of the NUW or not, would you?‑‑‑Only on the basis of some stop‑work meeting that you've had previously, where they would have been present.
PN63
Now, there's NUW members at the facility on the day-shift as well, isn't there?‑‑‑That's my understanding.
PN64
Yes, and the redundancy situation or the issue affects the AM shift as well, doesn't it?‑‑‑Correct.
*** AARON JOHN RAU XXN MR MUJKIC
PN65
And the AM shift has been working, in your opinion, regularly today, yes?‑‑‑Correct.
PN66
And yesterday?‑‑‑Correct.
PN67
There are also NUW members who are drivers who are employed at this facility, that's correct, isn't it?‑‑‑That's my understanding. As you said, I can't categorically say that there are, to the points that you raised earlier.
PN68
Sure. And again, work has been continuing as normal for the drivers, hasn't it?‑‑‑Correct.
PN69
No further questions, Commissioner. Thank you.
PN70
THE COMMISSIONER: Can I just ask a couple of things, Mr Rau, before I ask Mr Skene whether he has anything further for you. You mentioned that date of - well, I understand the redundancies are occurring from having briefly read your statement for two reasons. One, because of changes that are occurring at the existing site, but also because of the proposed relocation to the Tullamarine site, am I correct in that assumption?‑‑‑Yes, it's the labour plan aligned to the new Melbourne Airport site.
PN71
Yes, and there are also some changes occurring now at the Altona site that are also - - -?‑‑‑No.
PN72
Okay. Sorry, I've misunderstood. So it's all to do with the relocation to the Tullamarine site?‑‑‑Correct and the new sortation system that's going to be implemented there.
PN73
Thank you. So those decisions in terms of final numbers, based on your evidence need to be made or implemented by 20 November?‑‑‑Correct, on transition.
PN74
Can you just indicate to be then, what is it in your view that leads you to believe either that industrial action is happening or is threatened, impending or probable in terms of the afternoon - the PM shift that is due to commence at 2 pm today?‑‑‑So currently, Monday, as was - as has been presented, we had approximately 40 employees leave the site at 10 o'clock.
PN75
Yes, so what you have described as the overtime ban?‑‑‑Correct.
*** AARON JOHN RAU XXN MR MUJKIC
PN76
Yes?‑‑‑Ordinarily we work between 10 to 10 and a half, 11 hours a shift and that has been an ongoing customary practice for a number of years, and that is on the basis of the capability and volumes of the site. At no stage, throughout the last few years have we had a mass exodus of employees that leave on their ordinary time. In terms of what happened yesterday - - -
PN77
If I could just ask you on that, firstly dealing with overtime ban, that action occurred two days ago?‑‑‑Correct.
PN78
What is it, in your view, that leads you to believe that that situation is an ongoing on in terms of that overtime ban as you describe it?‑‑‑So from - to answer your question, we have - we have previously never had an issue with a large number of people refusing to do overtime and given the issues that have been raised throughout the redundancy process by the NUW, you know, it is my opinion that they will continue to - they will continue to force overtime bans from time to time on the basis of their - of the process that we've put forward. We've never had this issue before.
PN79
Okay. Then there were further - you've described in your s witness statement what occurred on the PM shift yesterday. What leads you to believe that there are going to be - that there is going to be further industrial action of a similar kind occurring in the PM shift today?‑‑‑Because the issues that were raised by the union have not been resolved and the employees are taking industrial action at the moment and we've got no guarantee that they will be coming back to work today, on the basis that the issues that they raised were not dealt with in accordance to their demands.
Thank you. Mr Skene, anything further for Mr Rau.
RE-EXAMINATION BY MR SKENE [1.22 PM]
PN81
MR SKENE: Just two quick questions. You were asked some questions by my friend about different groups of employees, some on the AM shift, some of the drivers who were also represented by the NUW and who are continuing to work. What's the difference between the approach of those other groups and the approach of the PM shift employees in relation to this redundancy issue?‑‑‑Sorry, can you just rephrase if you can? Just to - - --
*** AARON JOHN RAU RXN MR SKENE
PN82
Sure, so my friend has asked you questions about different groups of employees who were represented by the NUW. He's put to you, and you agree, that those people have continued to work, it's just the PM-shift employees who don't. What difference, if any , is there between the attitude of the PM shift employees to the redundancy issue and the attitude of those other groups of people who have continued to work?‑‑‑So in accordance to my statement, the AM shift at Altona - so that comprises of both road and fashion, have an impact in regard to the redundancies of two roles, whereas the PM shifts has an impact of 35, going from 99 permanent handlers to 64. So in terms of the process that we've gone through from a redundancy selection perspective was very much on a voluntary redundancy process, first and foremost, whereas if the - if it was under‑subscribed it would be going on with a last‑on/first‑off scenario. So the impacts in terms of the redundancies are greater on the PM shift.
PN83
I see. My friend asked you some questions slightly earlier in his cross-examination about your knowledge of who are members, and you said you didn't have any direct knowledge of who are members, including for the reasons of there being no payroll deductions. What role has the NUW had in representing the PM shift employees who are currently engaging in the action?‑‑‑So throughout - since we had a conversation with the NUW Wednesday a week ago, we have had a number of stop‑work meetings for both the TWU and the NUW to solicit feedback on regards to two different issues. One has been the local agreement and two being the labour plan for the new site. Those meetings have been attended by numbers of people. We don't have the exact numbers, of course, but we are aware that there have been a considerable amount of employees that attended, both the AM and PM shift feedback sessions that were run by the NUW. Thank you.
PN84
Thank you. No further questions, Commissioner.
THE COMMISSIONER: Thank you very much and thank you very much, Mr Rau. You may now stand down.
<THE WITNESS WITHDREW [1.25 PM]
PN86
MR SKENE: If you are ready for me to address you, Commissioner.
PN87
THE COMMISSIONER: If you are ready, I am ready.
PN88
MR SKENE: Thank you. So just to begin with the legislative requirements, Commissioner, which I am sure a very well known to you, the key question before you at the moment is the question about whether you are satisfied that it appears that industrial action is happening, is impending, a threat impending or probable, or is being organised. Now, if the evidence leads to your satisfaction that that appearance exists, then you must make an order.\
*** AARON JOHN RAU RXN MR SKENE
PN89
So to touch on a point you raised with me earlier about an interim order, there is nothing in my submission that that would prevent you from being able to reform the requisite satisfaction now on the information that is available. And in those circumstances, there is nothing that prevents you from dealing with this question finally. Now, if I can address you perhaps in relation to two things. First, the industrial action that you ought to be satisfied is happening or is threatened impending or probable, and secondly in relation to the terms of order that would issue.
PN90
So dealing with the first of those questions, the evidence of Mr Rau is the only evidence that's before you. Some of Mr Rau's evidence is hearsay evidence, that is true, but it is unchallenged hearsay evidence. No explanation has been given for the failure to challenge that evidence. My friends question in cross-examination that the evidence is indirect does nothing more than establish that it is hearsay. It doesn't devalue what the evidence says and there is no reason, in circumstances where you are confronted with unchallenged hearsay, that you ought not give it a weight.
PN91
One of the reasons for that is because my friends could have led evidence about this issue or they could have explained why they failed to lead evidence about this issue and they haven't done so. And in those circumstances an inference is available to you, Commissioner and it's the inference you should draw to the effect that the evidence that they might have been able to lead would not have assisted them.
PN92
So to the extent that the application relies on hearsay evidence, it ought to be accepted as being accurate and it ought to be given weight. But importantly, the key evidence is not hearsay evidence. The key evidence is direct evidence. Mr Rau knows the circumstances of the site. So let's deal first with the overtime ban. It's clear on the evidence that a large group of employees in a way that differs from their customary and ordinary working practice en masse elected not to be available for overtime and to walk off.
PN93
Now, my primary submission would be that that was no something that they were entitled to do in the circumstances but I don't need to prove that. You only need to satisfied, Commissioner, that doing so was different from their customary - practice and hence it was industrial action.
PN94
We have to look to the underlying circumstances of the dispute. It's clear that there is ongoing agitation in relation to the redundancy issue and the claims that have been made by the union about that, contrasting the employer's position and the employer's position is set out in paragraph 14 of Mr Rau's statement. The union claims about what they required to have resolved as set out at paragraph 39. This is uncontested evidence. It is also uncontested evidence that "we want a number of issues dealt with before the guys return to work."
PN95
Now, my friend in cross-examination suggested that something else was said; that was denied. There is no evidence to the contrary about these statements that are in Mr Rau's statement. They ought to be accepted and found to have occurred. And the same things that I said earlier about Jones v Dunkel inferences apply here also.
PN96
So what we know about the industrial action? We know that there is an underlying redundancy issue. We know that the company's position and the union's position are at odds. We know that the employees have elected on two occasions to embark upon industrial action; and escalating campaign, importantly, Commissioner. "Start with a soft overtime ban, see what happens the following day. We're still not getting what we want, we will walk out." It is an escalating dispute. This is on the face of the company nevertheless meeting and discussing the underlying issues with the employees. So there is no reason to think that further discussions will alter that approach. The escalation has happened; uncontested evidence, despite those conversations to deal with the underlying dispute.
PN97
So what do we know about the union involvement? There are various meetings with and UW representatives to express this position, including the involvement of an NUW organiser and uncontested evidence that that organiser has said, "I am not going to direct them to return to work." So there is participation in the conduct and a refusal to discourage it.
PN98
Now the decisions of the Commission in this regard make it clear that a union might convince you that it had taken steps to discourage action in which it had participated, such that it ought not be made, but that's not the evidence here. The evidence here is to the contrary. The evidence here is, "We are not going to take that step. We are not going to take any steps to discourage this. We are going to help the ball roll along." That is precisely the type of involvement that warrants an order. It is precisely the type of participation that illustrates organisation of industrial action.
PN99
THE COMMISSIONER: Mr Skene, "not discouraging", is that sufficient for me to be able to find that the industrial action is being organised?
PN100
MR SKENE: No. The participation in the meetings is the crucial consideration. What you can take from the non-discouragement is a refusal to do what is necessary to distance themselves from the participation. There's active involvement in the meetings that have led to this action happening, and there's no evidence.
PN101
I mean, it's commonly the case that a union would appear here and say, "We did our best here. We went before the employees. We explained to them the consequences of their conduct. We explained to them we didn't support it. We explained to them they ought not do it." The Commission has found in those circumstances, where a union has done what it can, supported by evidence about that, that you ought find that participation was actually not something that involved them in the action, but there isn't any of that evidence here.
PN102
What there is is, "I'm not going to do that. I'm going to come into these meetings and I'm not going to tell them not to do it."
PN103
Now, there's another important piece of evidence about the nature of that participation in my submission, which is the evidence that concerns what happened after the 2 pm stop‑work meeting initially. "We are not going to go back to work until we have heard from the NUW. We want the organiser here." Now that participation intrinsically implicates Mr Stops in what followed.
PN104
So there was a way out from that participation which they didn't take and it's the participation which leads you to the conclusion in my submission, Commissioner. So the state of the evidence on the industrial action is an escalating ban into a stoppage of work; a statement that "We are not going to go back until these issues are resolved." No contrary evidence.
PN105
That evidence ought to be accepted and the failure to call contrary evidence about that should lead you to the conclusion that there is nothing that they could say about that that would assist them. The fact of the matter is these people won't return until this underlying dispute is resolved and that's the red flag that requires the Commission's intervention and it should satisfy you this industrial action is happening, both in the form of a continuing ban and in the form of a continuing stoppage of work.
PN106
The involvement of the NUW in that conduct is made out. I just draw your attention to two authorities. In the time available, I'm not sure that we have copies - we might have some copies. So the two decisions are - that deal with the sorts of evidence that might be required is the decision of the Full Bench, Lawler VP, Drake SDP and Roe C in AMWU v UGL Resources [2011-2014] IR 237and also a decision of Dodds-Streeton J of the Federal Court, of McDermott Australia Pty Ltd v Australian Workers' Union [2011] FCA 303.
PN107
Now, the relevant passages deal with whether or not a union has been lending encouragement or support and whether such action justifies the making of orders. If I take you first to the Full Bench decision, Commissioner, paragraph 22, there is a contest about involvement of the AMWU in the industrial action that was the subject of that case and the Full Bench reviews what the AMWU did, and the absence of evidence of participation, and also the fact that evidence was led about why the union did what it did, important acting in a "firefighting capacity", that's the type of evidence that I was drawing your attention to earlier, Commissioner.
PN108
Now, the Full Bench in that matter, based on that type of evidence, reached a conclusion that the participation couldn't be found to be encouragement, but here you have participation without that type of evidence, which in my submission is enough.
PN109
THE COMMISSIONER: I don't want to trivialise this, Mr Skene, but you say that in terms of the NUW's role in the present matter, rather than one that might be characterised as "firefighting", it was more in the nature of an arsonist. Is that how you would seek to categorise the behaviour?
PN110
MR SKENE: I don't need to go that far. I am not saying that they are the sole cause of what occurred, I am saying that they were involved in organising it. They attended the meetings, they could have fought fire and didn't. In fact, the evidence is they refused to do that, even when asked.
PN111
So just a further authority which deals with similar sort of circumstances is Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union. It's a decision of Richards SDP in 2012, the citation is FWA 7654. It applies the AMWU v UGL case with the opposite result, looking at what that union - in this case the CFMEU and the BLF - were doing and that they weren't simply passive observers trying to sort these things out, they were involved in what occurred and their involvement leads to a conclusion that an order ought to be made against them.
PN112
So Commissioner, in substance, you ought to find, in my submission, that industrial action is in fact happening, based on this escalating campaign, but if you are cautious about that, you should certainly find that it's impending or probable based on the statements, uncontested statements in evidence that it will continue while the dispute continues. "We are not going back to work until this resolved." The evidence is that the dispute is not going to be resolved until 20 November. So Commissioner, if I could just briefly address you on the terms of order, we filed a draft order with the application. Does the Commission have that?
PN113
THE COMMISSIONER: I do, thank you.
PN114
MR SKENE: There is a numbering issue in the draft order, which might lead to some confusion. So you will see that the heading numbers and the subheading numbers don't align. I apologise for that. So the second paragraph of the order, Parties Bound, then has a series of subheadings that are numbered 3.1 through to 3.3. So we would obviously seek to have that corrected.
PN115
My friend's submission in opening seemed to be that your discretion to grant an order is in some way confined or limited to the industrial action that you find is happening or that is impending, threatened of probable. In my submission, that's not the case. Once your jurisdictional prerequisites are met, your discretion to make an order is a broad one and you can make - it's certainly the case that you would be guided by the industrial action that you think is happening, but if you think that it is necessary to make an order to stop the industrial action from occurring, you could make an order that extends beyond what you found is happening now.
PN116
In my submission, the position put by my friend to the contrary is misconceived and mis-states the exercise of discretion required under 4(8) of the Act.
PN117
THE COMMISSIONER: Why would I want to do that though, Mr Skene? Why would I want to make an order that goes beyond the evidence that has indicated what industrial action has occurred and is perhaps threatened, impending or probable?
PN118
MR SKENE: Well, because it is desirable that there should be no industrial action of an unprotected nature and your order ought not be worked around. So let's say for example, Commissioner, you were to make an order confined only to an overtime ban, well, would we be back before you tomorrow with a different type of ban? That's not - now, it is the case that you should not be making orders against people who have an engaged in the relevant conduct; I would accept that proposition, but as to confining the order to particular types of industrial action, your discretion is at large to do what is appropriate in the circumstances and here, where there has been industrial action of different characters, and one expects fully that this issue is going to continue to be agitated; the underlying dispute is going to continue to be agitated, it's appropriate you should issue an order against both the organising and the engaging of any industrial action.
PN119
So stepping through the draft order, importantly it's confined here to those people who are members of the NUW and who perform work at Toll's site and who performance work on the PM shift, so it's not directed at - so we would say that's the population of people who have, in fact, engaged in the industrial action. That was slightly phantom, wasn't it?
PN120
THE COMMISSIONER: I'm sure. Is that some last-minute intervention? I'm not too sure. We'll continue.
PN121
MR SKENE: I better get through it quickly then before someone else shows up. In any case, we say the jurisdictional prerequisites for that population of people are made out. The next section of the order deals with the fact that industrial action must not occur. It specifically directs that the NUW must not organise any action and we would say the basis for that order is made out based on the involvement of Mr Stops and the conduct to date, and his failure to do the things that otherwise would be necessary to stop that from happening.
PN122
The next order is directed specifically at the defined group of Toll employees which is just those people set out in the previous paragraph of the order and it makes it clear that action that is being engaged in must stop and threats to engage in must stop, and we would say both of those orders are supported here, because action is happening and, in any case, it's been said that it won't stop up until the underlying issues or the demands are met and importantly that also supports the following order which is that there should be no continuation or recommencement of the action.
PN123
So my friend's submission in outset are misconceived. They don't reflect the findings that you ought make, Commissioner, on the evidence and if you are satisfied as to matters I've set out, then each of these orders ought to issue as sought.
PN124
There is an order regarding service which makes it clear that the order should be regarded as having been served by service upon the union which has been, on Mr Rau's evidence, the active representative of the relevant people through the process and through the stop-work meetings.
PN125
The final question is a question of duration. One is always torn in these applications on the question of duration about whether or not you make one order that is actually likely to deal with the whole substance of it for once, or whether or not you wish to make an order of more limited effect to see how things go.
PN126
Clearly, in my submission, order ought issue and it should be of sufficient duration to, at the very least, enable the parties to deal with this underlying dispute and it should answer the threat that's been made by the employees that the action will continue until the dispute is resolved. Now that is going to require an order of at least a number of weeks. The more robust position, Commissioner, would be to say that you should deal with this once, particularly in the face of the threat and make an order that continues until 20 November which is when any redundancies that are due to happen will happen. The attractive aspect of that position, Commissioner, is that we won't be back before you again if this situation does not resolve, if your orders is not effective, once and for all, in stopping things.
PN127
The other aspect that I think is attractive about that, Commissioner, is that it's a square answer to the type of threat that's been made, which is to continue the action until the dispute is resolved and there's no reluctance on the part of the company to actually engage in the underlying dispute. Its, in fact, notified a process to you about that which is before you later today.
PN128
So the parties are apparently actively willing - and my friend has indicated this from the union is part - to seek to resolve these issues, but they should do so without recourse to this type of conduct. That concludes the submissions, Commissioner.
PN129
THE COMMISSIONER: Thank you, Mr Skene. Mr Mujkic.
PN130
MR MUJKIC: Commissioner, before I start, can I just be granted 60 seconds? We don't have to stand the matter, I just wanted to use your associate's tissues, is that okay?
PN131
THE COMMISSIONER: You may indeed. Take as long as you like. This is not some sort of ruse to try and delay the commencement of the PM shift, is it, Mr Mujkic, or the conclusion of this matter until after then? Anyway - - -
PN132
MR MUJKIC: My apologies, Commissioner.
PN133
THE COMMISSIONER: No, not at all.
PN134
MR MUJKIC: As I said in opening, the order sought goes to four things and this is a really important point and I think my friend, with all due respect, glossed over your jurisdiction in this matter. So the order seeks action to stop. The order seeks the NUW to stop organising the action. It also seeks employees to stop organising the action and it seeks employees to not continue or recommence any action.
PN135
Now, you need to be satisfied of each of these matters to make an order going to any of these matters. The authority for this point is a case, a Full Federal Court decision in TWU v Australian Industrial Relations Commission. I don't have a copy of it. The relevant passage is extracted in one of the decisions that have been passed up just before, which is that Full Bench of Fair Work Australia. The extract starts at paragraph 10 of the Full Bench decision.
PN136
It extracts paragraphs 15 to 39 of the Full Federal Court decision with some gaps. The relevant paragraphs from the Federal Court decision are 18, 19 and 20 and what those paragraphs tells us is exactly what I'm saying. The Commission must be satisfied of each head of - if I call it that - of section 418, paragraph (1), in order to make an order stopping any of those things.
PN137
So,
PN138
If we want to make an order to stop industrial action, we must be satisfied that it's happening. If we want to make an order that stops threatened, impending or probable action we must be satisfied that action is threatened, impending or probable. If we want to stop action being organised, we must be satisfied that action has been or is being organised.
PN139
So each of those three heads must be considered separately, and to make an order touching any of those, you must be actually satisfied of it. So it is not enough to be satisfied that the action has happened and then make an order stopping the organising of the action; they're different things.
PN140
So if we go to the matter at hand, I think we concede that there's enough evidence to say that industrial action that's not protected industrial action has taken place in relation to people not attending work yesterday. That's Mr Rau's evidence, that's the evidence before you. There's enough evidence of that, but that action occurred yesterday. There is no evidence that it's threatened to occur today and there's not enough evidence to say that it's impending or probable. You could say it might happen; if something has happened once, it is properly fair to say it might happen again, but that's not what the act goes to. The act goes to "impending or probable", that's a much higher bar than "might happen".
PN141
THE COMMISSIONER: Mr Mujkic, what do you say to the submission that I understand Mr Skene has made that the underlying issue in dispute remains unresolved and that there a pattern of escalating industrial action it's not simply what occurred on the PM shift on the 14th or what occurred on the PM shift on the 15th, it's a circumstance where we are looking at what has happened in terms of both of those shifts against the background of an issue that is unresolved and what appears to be a pattern of escalating industrial action that suggests that further action is likely?
PN142
MR MUJKIC: Well, I don't accept that it was a pattern of escalation, so the evidence suggests that some employees who might ordinarily work overtime on the Monday didn't work the overtime, and the evidence shows that employees attended work yesterday. The matter only escalated once the shift had commenced, and that is important.
PN143
So it's not as if there's been an overtime ban and that hasn't resolve the issue and then people haven't attended work, that's not right. The evidence some employees didn't work overtime on Monday and Mr Rau's evidence is that was 44 employees. Now 99 are rostered to work and there is usually 10 to 20 casual employees working, so that's less than half of the employee is not working the overtime, so I'd be saying that's not sufficient to say that there is industrial action occurring.
PN144
Secondly, everyone attended work yesterday. It was only once they had attended work that there seemed to be a decision by some employees not to continue working. So I don't think that sufficiently shows a pattern of escalation and the other issue that seems to have, on the evidence, influenced employees' decision to cease work yesterday, some employees, is the intervention of the employer at the start of the shift to talk to people about what occurred the day before and threaten one employee in particular with being stood down. That seems to have had, on the evidence - you might draw an inference that that seems to have had some impact on what occurred yesterday.
PN145
THE COMMISSIONER: I accept that, but surely the employer is entitled, given what happened at the conclusion of the shift on 14 September, if we accept the evidence of Mr Rau - surely the employer is entitled to seek some clarification from the employees about that situation.
PN146
MR MUJKIC: Yes, I am not denying that they are. It just seems to be on the evidence that to say it's just a pattern of escalation based on one issue is not quite correct. At the commencement of the shift yesterday, it would be impossible to say that it was a pattern of escalation. The matter escalated once that intervention from the company occurred. I am not denying that they have got the right to talk to people about what occurred on Monday, but that seems to have caused the escalation. Now, that doesn't tell us that the action is impending or probable today.
PN147
So that goes to stopping the action. As I said, you can't stop action that is not taking place and it's not taking place in our view, and we can only stop future action if it is threatened. Well, there is no threat, we say, on the evidence of impending or probable; there is not enough evidence to suggest that it is impending or probable.
PN148
If we go to organising of the action, well, in our view there's no evidence about how has organised this action. There is no evidence to say that the NUW has organised the action. The action occurred spontaneously, it looks like. The NUW official was not there. He was called in once the action yesterday had already commenced and one has to be really careful to draw distinction between an organisation's involvement, to some extent, in the action and the organising of the action.
PN149
So if we use our analogy from before of being a firefighter, well, there's actually - there is no obligation for an organisation to fight the fire. In our view, that's what we were doing yesterday, but there is no obligation to do that. What Mr Stops was doing was acting as a conduit between the employees, some of whom are members of the union and the employer, with a view to resolving the underlying issues. That's appropriate. Mr Stops is not required to direct employees to work; in fact, he's got no power to do so.
PN150
Now, that level of involvement doesn't show organisation and there's actually no evidence of organisation on behalf of the union and there's no evidence of organisation on behalf of employees either. Unless there's clear evidence of that, we can't stop that from happening.
PN151
The other evidence before the Commission is that other members of the NUW from the AM shift have been working as normal. The members of the NUW who drive trucks have been working as normal. We're not sure whether the members of the NUW on the PM shift have in fact been working and we're not sure if other employees who are not members of the NUW and perhaps might even be members of the TWU were involved in not working yesterday.
PN152
So if there's a lack of clarity about who, in fact, is taking the action, I don't know how we can say that the NUW have organised it. I mean, I don't know how we can say that one particular group of employees, which is employees who are NUW members have organised it either, and that's what the order seeks to stop.
PN153
If I go to the duration of - sorry, two things. My friend asked you to make a number of inferences today about the fact that we didn't bring any evidence. I think all I can say is one should be careful to draw strong inferences from that, in circumstances where we have only had a couple of hours notice of the hearing. We have turned up and we have done our best to defend the application in difficult circumstances, but one should not draw strong inferences based on the fact that we haven't called any evidence.
PN154
On the duration of the order, I would just like to say this: the terms of the order are pretty broad, so if the order does go to the individual employees, that's a pretty serious matter for those employees and I appreciate there has been an order made for substituted service, but in the circumstances I think we can safely say that most of the employees involved in the action probably haven't had any proper notice of this hearing and, depending on your decision, might have an order that binds them not do to certain things.
PN155
Now, in those circumstances - and the orders are serious things - the order shouldn't go for longer than necessary, so as not to put those employees in an unfair position. We say that an order of two weeks would be sufficient, if one is granted at all. Obviously, my primary submission is you don't need to issue an order; you can't be satisfied of any of the matters in 428, subsection (1), but if one is granted, an order of 14 days, we say, would be sufficient in the circumstances, considering the not particularly weighty evidence before you, but also the fact that individual employees are bound by the order in circumstances where they may not have had any notice of this proceeding, and they shouldn't have that order hanging over them for any longer than is necessary.
PN156
I have nothing further, Commissioner.
PN157
THE COMMISSIONER: Thank you very much, Mr Mujkic. Mr Skene, anything in conclusion.
PN158
MR SKENE: I'll just take a couple of brief points. It's rare these days one runs an application like this and one does not hear from the union side of the table a submission about the important of the Full Court in TWU and that's all they say. They don't consider the later authorities that deal with it and, in fact, it is dealt with in the decision that that we handed up, Commissioner and I will just draw your attention to it.
PN159
So my friend raised that the extracts of the case - of the TWU case that are set out in UGL and they start at paragraph 10 of the UGL decision, and there is a long extract from TWU v TNT, and my friend's submission appears to be that he is relying on that aspect of the TWU decision that says that you have to be satisfied that one particular type of industrial action is found and you have no - if that jurisdictional fact is triggered, you don't have any capacity - or in the terms of TWU, no duty or no power to make an order about other types of industrial action.
PN160
Now, that proposition has been expressly rejected by the Commission in a series of cases and those cases are actually set out in the UGL decision also. Commissioner, I won't take you through them in detail, but at paragraph 11, which is on page 9 of UGL, the Full Bench starts to consider the importance of the TWU decision and, consistent with what I submitted to you earlier, it's not controversial that you ought not be making orders against people who, again, have not been found to have engaged in the action.
PN161
That's a different point from the idea that you are limited, having found that industrial action has occurred by a person to making an order that's only concerned with that type of industrial action, which is of the import of my friend's submission and that's misconceived.
PN162
The Full Bench goes through a number of subsequent decisions to deal with that proposition, including importantly the VHIA case where there's an express rejection of that proposition and then this Full Bench considers starting at paragraph 15, the extent to which the TWU decision operates and it operates in a manner that I have said which is that this is setting out from paragraph 16, that it is clear that once you're satisfied that any of those alternatives exists, then you can make an order that you consider is appropriate.
PN163
It's much ado about nothing however, Commissioner, because of course here you can be satisfied that each limb is met. So for the reasons I said at the outset, provided you have formed that satisfaction, then this point doesn't arise. Now, my friend made some comments suggesting to you that you ought to be cautious about drawing inferences about the failure to call evidence.
PN164
THE COMMISSIONER: About the - sorry? The failure to call evidence. Sorry, yes.
PN165
MR SKENE: The failure to call evidence. There has been no explanation at all for that failure. A plaintiff cry from the Bar Table that this is an urgent matter that's been listed in short measure - no explanation has been given and there has been no suggestion that these people were not available. There is no suggestion that they would - - -
PN166
THE COMMISSIONER: Still, I did take that from Mr Mujkic that that was his explanation, Mr Skene, but I accept the submissions that you make about that.
PN167
MR SKENE: Well, there needs to be evidence of an explanation, Commissioner, not merely an assertion. There needs to be evidence that would satisfy you that that failure to call was explainable by people not being available.
PN168
In relation to the submissions made about the duration of the order, in my submission and order of 14 days is not likely to be a stable order. The fact that employees are subject to an order at all is a consequence of their conduct in not complying with or engaging in unlawful industrial action and that conduct - that consequence doesn't become unfair merely because it's serious.
PN169
So it is the case that the party should have confidence in being able to move forward without the threat of further action like this and it should be a sufficient period of time to enable the underlying issues to be resolved, and 14 days would be insufficient on any measure. That concludes the submissions in reply.
PN170
THE COMMISSIONER: Thank you, Mr Skene and thank you for your submissions at the evidence you have provided in this matter and thank you to you as well, Mr Mujkic. I am prepared to hand down a decision in this matter at this time, based on the submissions and evidence that are before the Commission at this point.
PN171
This application has been made by Toll IPEC Pty Ltd under section 418 of the Fair Work Act. That section requires that the Commission must make an order that an industrial action stop if it appears to the Commission that industrial action by one or more employees or employers that is not or would not be protected industrial action is either happening or is threatened, impending or probable or is being organised.
PN172
As I said, in circumstances where the Commission is satisfied in that regard, it must make an order that the industrial action stop, not occur or not be organised as the case may be, for a period which is described in the act as the stop period, and that period, obviously, is required to be specified in the order.
PN173
The Act also requires that an application be made, in particular, in this case by a person who is affected, either directly or indirectly, by the industrial action and I am satisfied that that requirement has been met.
PN174
The Act also requires in section 418 and also provides in section 418(3) that in making an order the Commission does to have to specify the particular industrial action. Based on the submissions and evidence that are before the Commission at this time, I am satisfied that action is in regard to section 418(1)(b), threatened, impending or probable.
PN175
I am satisfied in that regard, based on the evidence that's been provided about action that took place two days ago on the PM shift that commenced at 2 pm on 14 September and the evidence of Mr Rau that indicated that at the conclusion of the normal working hours on that shift some employees, at least, did not continue to work for a further period of overtime in circumstances where it is customary for between two to three hours of overtime, based on his evidence, to be worked on each shift.
PN176
I also have had regard to the fact that further action then took place on the shift on the following day, being 15 September. That action involves, as I understand the evidence of Mr Rau, initially a stop-work meeting and then a decision by a group of employees on that PM shift to not return to work at a subsequent point and an indication from them that they would not be doing so until such time as the underlying issue in dispute had been resolved.
PN177
That issue, as I understand again from evidence, has not been resolved and it relates to an ongoing issue about redundancy and, in particular, how many employees and whom are to be made redundant from the group of employees currently working on that PM shift.
PN178
As I say, based on that evidence of Mr Rau in particular and the evidence of action that has occurred on those two particular shifts, I am satisfied that it is reasonable to conclude that action is at least threatened, impending or probable in terms of the PM shift that will take place today and possibly further PM shifts that will be rostered again in the future.
PN179
I am also satisfied that that action can be considered to be industrial action, based on the provisions contained in section 19 of the Fair Work Act, and I refer in particular to section 19(1)(a), the performance of work by an employee in a manner different from that in which it is customarily performed. I am satisfied that the action falls within that definition of industrial action. Having come to that conclusion, as I indicated, the Act requires that the Commission must make an order.
PN180
In terms of that order, a draft order has been provided by the applicant. I am prepared to make an order in those terms, save for two changes. I do not propose to make an order in the terms that include what is not noted as subsection 4.1, but I think as has been indicated, should appropriately be 3.1.
PN181
I am not prepared to make an order at this stage that involves the requirement that includes the words, "The NUW must not organise any industrial action involving any of the Toll employees." I have heard the evidence of Mr Rau, I have heard the submissions that have been made about this particular issue. I am not satisfied that the NUW necessarily can be considered to be in involved in action that is being organised by the union in the context of this matter, based on the evidence and submissions that are before the Commission at the moment. I accept that a union delegate and a union organiser has been involved, to an extent, in this matter but I am not satisfied that the union and its representatives are necessarily organising the action, but instead have been perhaps more of a conduit and have been involved in representing the employees without necessarily organising the action that has occurred to date.
PN182
I am, however, prepared to make the order in the remaining terms. In terms of the term that has been made, various submissions have been made about that. The union suggests that an order be made for a period of 14 days. I think the applicant's preferred position is that an order be made for an extended period, perhaps up until the later part of November when the changes that are at the heart of this dispute are intended to be implemented.
PN183
I intend to make an order in terms of trying to seek some balance in regard to this matter. I tend to make an order for a period of 28 days. I believe that that will provide, hopefully, an appropriate time to enable the issues that lie behind the dispute in regard to this matter to be resolved.
PN184
In making an order for that, in some respects, limited period of time I am not, by any means, suggesting that it is appropriate that at the conclusion of that period if the dispute is not resolved for further unprotected industrial action to be taken. I am simply suggesting that the order will be made for that period of time, as I say, by way of striking an appropriate balance in regard to this matter.
PN185
Unless there is anything further that either party wishes to submit at this point, an order will be made in those terms.
PN186
Mr Skene, is that anything further that you wish to say at this point in time?
PN187
MR SKENE: No, nothing, Commissioner.
PN188
THE COMMISSIONER: Mr Mujkic?
PN189
MR MUJKIC: The only think I wish to say was in relation to what I canvassed at the start of the hearing, which was is there a utility in having a brief conference, whether we do that immediately or if you give us five minutes to have a brief discussion before your involvement, because I am conscious of the fact that there's another matter on at 4 o'clock this afternoon.
PN190
THE COMMISSIONER: Yes. What I might do - is it your preference to have a discussion directly with Mr Skene first of all?
PN191
MR SKENE: I think that would be our preferred course, Commissioner. If we need time, we can have an order issued.
PN192
THE COMMISSIONER: Yes, well, I was actually asking Mr Mujkic that.
PN193
MR SKENE: Excuse me.
PN194
THE COMMISSIONER: That's all right - based on what he just had to say. So is it your preferred to have a discussion with Mr Skene directly?
PN195
MR MUJKIC: I am happy to have that discussion directly first and then perhaps if we can - I think my friend would like the order issued in that time. I don't know if that's a physical possibility or not, but I will leave that to the Commission.
PN196
THE COMMISSIONER: What I might do is, perhaps, if there is nothing further that you wish to say about this current application at this point, I might adjourn these proceedings. My associate can give you my direct phone number and if you could be so kind as to call me to let me know either whether you wish me to come back and have some further discussions or at least to let me know the outcome of your discussions. Until then the matter is adjourned. Thank you again.
ADJOURNED INDEFINITELY [2.19 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
AARON JOHN RAU, SWORN............................................................................. PN30
EXAMINATION-IN-CHIEF BY MR SKENE.................................................... PN31
EXHIBIT #T1 WITNESS STATEMENT OF 8 PAGES AND 53 PARAGRAPHS OF AARON RAU.......................................................................................................................... PN39
CROSS-EXAMINATION BY MR MUJKIC...................................................... PN42
RE-EXAMINATION BY MR SKENE................................................................. PN80
THE WITNESS WITHDREW.............................................................................. PN85
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