B2017/640, Transcript of Proceedings [2017] FWCTrans 387 (12 September 2017)

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PN3046

THE DEPUTY PRESIDENT: Just at the outset, in the interests of transparency, I've become aware last night that during the evidence of Mr Solomon my associate heard or believed he heard him direct a mark to Mr Reitano that no one else at the bar table seemed to notice and may have informed Mr Tiley of, "Did you hear that", or words to that effect. I didn't hear such a remark. The court report has listened to the audio and apparently there is a whispered remark that is somewhat regrettable. Had I heard it I probably would have said something to Mr Solomon at the time.

PN3047

I think it's probably a distraction but if anyone wants to take the point or take some point about it you're welcome to listen to the audio. I don't intend to and I haven't formed any view about it absent a submission that I should. So I will just leave it at that, I think, unless you have a different view, Mr Reitano.

PN3048

MR REITANO: I've been called far worse and I don't intend to take it any further.

PN3049

THE DEPUTY PRESIDENT: No, okay, thanks.

PN3050

MR REITANO: If it please the Commission, we have reduced our submissions to writing.

PN3051

THE DEPUTY PRESIDENT: Right.

PN3052

MR REITANO: I'm not going to waste a lot of the Commission's time or any of it if you start, in fact, reading those. What I want to do is provide those to the Commission in due course, in a moment, and really just highlight some of the big picture items in our case which I can tell the Commission is not materially different to what we opened in terms of structure and content. In very many respects, our case is simplicity in itself. I'll take you to, as I say, what we say are the big picture items in our submissions.

PN3053

One thing we've done in submissions which was not because of any comment that the Commission made yesterday but we thought it would be useful, is to try and set out something of the chronology of the steps that were taken. I'll also take the Commission to that. Before I come to that, there was a matter yesterday that was of grave concern, at least to me, and it didn't relate to Mr Solomon, that the Commission raised and I need to put it to bed immediately.

PN3054

THE DEPUTY PRESIDENT: Yes.

PN3055

MR REITANO: There were at one stage I think some media reports claiming that there had been breaches of undertakings in this case. I understand that at a directions hearing in the associated 240 proceeding the issue was raised and it was accepted, I think, by someone appearing for Oaky Creek that there had been no alleged breach or breach of the relevant undertakings. Can I tell the Commission that the suggestion or the allegation does appear in the evidence and Mr Brodsky in his further reply statement at A34 at paragraph 4 and 5 denies any breach of the undertaking that was given to the Commission on 3 August.

PN3056

There has been no issue about that agitated in the proceedings.

PN3057

THE DEPUTY PRESIDENT: Okay.

PN3058

MR REITANO: So the Commission should not perceive - and it may be relevant or it may be made relevant, I don't know - to whether there is any residual discretion in the Commission to grant the relief sought and that's why we make an issue of it. The Commission should not proceed on the basis that there has been any breach of the undertakings. My client has instructed me that it regards giving undertakings to the Commission as a serious matter and it has done its very best to comply with the undertaking that it gave to the Commission. That is the end of that.

PN3059

Can I then provide to the Commission a copy of our written submissions? In some respects, as I say, because they build on the submissions that we made in the interim hearing the document or the form of the document will be something that is familiar to the Commission. There are two matters that I want to say before I specifically come to deal with the items in the written submission. It should not be lost on anyone that the context and circumstance of this case is specifically a context and circumstance that involves a period of or a relatively long period of hard bargaining between the protagonists, capital and labour, which has occurred over an extended period of time, that has resulted in each of the parties ultimately taking advantage of the various mechanisms provided for by the Act to escalate the bargaining to a stage where people are taking action and retaliatory action against each other as provided for by the scheme of the Act.

PN3060

Contextually that should not be lost on anyone because it is vitally important to the submissions that we make. It's easy to simply look at this as a case that involves a picket line and involves people doing things on a picket line or that involves social media and things happening on social media and to lose sight of that contextually this is about bargaining within the confines or the structure of the Act and it's bargaining directed towards ultimately obtaining an enterprise agreement that is agreed between both parties. That's the first point.

PN3061

The second point is that our submissions proceed on the basis that the power of the Commission to make orders or good-faith bargaining orders really directs its purpose at insuring the integrity of what is provided for by the Act in terms of bargaining. That is that the integrity of collective bargaining, the integrity of, in particular, freedom of association, as those terms are defined by the Act. The reason I say that is because what we say here is that taking action which is unfair or capricious and which undermines collective bargaining or undermines freedom of association undermines the whole system and the whole scheme of the Act or the purpose, the object, of what the Act intends to be achieved.

PN3062

You will see - and I'll come to it in the course of our submissions - one of the things that we say is if the test is objective and this is where I'll conclude my introduction, if the test is objective in terms of what the Act is designed to achieve from collective bargaining, if one looks at what happened in this case - in Brisbane I assume they call it the average reader of the Courier Mail, in Sydney it's the average reader of the Telegraph - if someone told that person what the reality of this case was - and I'll just pick one example - that people were standing on a picket line on 15 June saying the word, "grub", and nothing happened about that whatsoever until a vote was concluded in respect of an enterprise agreement put out by the company, nothing was said or done in respect of that conduct until the day after that ballot was lost, what would they objectively think was going on?

PN3063

We say - and we strongly submit - that in the circumstances of this case the answer is rather inevitable that this was reprisal action for the fact that the vote went down and it was sharply directed at putting pressure on people that is not recognised by the scheme of the Act in respect of their bargaining. If you add to that that days later that pressure or that ante is upped in terms of firstly, "I'm starting a disciplinary process against you for something that I've known about for more than a month", and secondly, "I'm going to retaliate by locking you out." So firstly - secondly, you have no income because I'm locking you out and firstly, you can take it that your employment is under threat. No what is your attitude going to be for the bargaining? I want to take the Commission to two particular examples from the evidence. I don't know that the Commission needs to turn to them but - because they're only very short but I wanted to just give the Commission - the first one is from the evidence or statement of Mr Farmer.

PN3064

At 33 and 34 of his statement - - -

PN3065

THE DEPUTY PRESIDENT: Sorry, Mr - - -

PN3066

MR REITANO: - - - Farmer.

PN3067

THE DEPUTY PRESIDENT: Yes.

PN3068

MR REITANO: I'll give you the reference in a moment, to the exhibit. Mr Farmer says at 33:

PN3069

Permanent jobs are few and far between in underground coal mining in Queensland at the moment. If I lost my job I would have to try to get work as a contractor which would mean I would get paid less and have no job security. When I first read the letter of allegations it made me feel like I just wanted the dispute to be over because then my job would be secure again and I would not put up with these sort of attacks from the company. All we want to do is bargain in good faith and keep our existing EBA conditions. If people start losing their jobs for doing something that they have never been told they cannot do it would most likely scare the rest of the workforce and do great damage to the EBA campaign that we are running.

PN3070

MR REITANO: That was A19 and then just another example, which is in the statement of Mr Thompson, which I'll have a reference to in a moment. He says at 28 - and this is particularly, really in my submission:

PN3071

When I got the letter it made me feel sick in the guts. It caused a fair bit of anxiety for me at home as it scared my partner. We spoke at length about it and it made us both feel like we just wanted the EBA dispute to be over so that we would not have to cop these sorts of attacks from the company anymore.

PN3072

MR REITANO: That's in A24. That evidence went through to the keeper. Then finally in Mr Brodsky's statement - and I won't read all of it but in Mr Brodsky's statement which is A2, he deals with the issue at paragraphs 77 to 85. In particular he says at 78:

PN3073

Members have told me that they do not want to participate in the picket line anymore because they are worried that they are going to lose their jobs. They have families to support and financial obligations to meet.

PN3074

MR REITANO: Then he goes on to say something about what he thinks the consequences of the disciplinary process might be. The stark reality objectively viewed of issuing a disciplinary process or starting a disciplinary process the day after a ballot has concluded where the CFMEU has actively campaigned against that, is that people will be scared off. They'll be scared off not only in respect of what is happening to themselves - 20 or so, and I know the number fluctuated between 20 and 26 - but 20 or so people who are subject to that process of a group of about I think 186, we were told. They will not only be scared for themselves but they will look at what's happening to others and be deterred from the process.

PN3075

Now, we say that effectively is the real politick of the situation. In our written submissions - and I'll come to this later on - we set out all the reasons why, or all the other reasons why, if you like - this is unfair and capricious and why it undermines collective bargaining and freedom of association. But I in particular wanted to start by saying that how we put it in terms of the reality and the objective view that the Commission should take of what has happened. In the written submissions, I think I said to you, Commissioner, that we've set out something of a chronology. You'll see that that starts - well, it starts at paragraph 5 from about 13 April.

PN3076

It continues through to - for present purposes - about 21. In particular I want to emphasise something that perhaps isn't emphasised in the written submission and that is that you'll see at paragraph 7, from 12 June until 14 July, the protected action in the form of continuous shift stoppages was taking place. That was all authorised by the scheme of the Act in terms of people were entitled to withdraw their labour. We do so later in the submission in effect that that meant that they - to put it in loose legal terms - all the contractual obligations in relation to the power of the employer to give them directions in relation to their work were in suspense during that period.

PN3077

But that all started on 12 June. You'll recall from the cross-examination of Mr Dobbie in particular but Mr Wynn to a lesser extent that all of the picket conduct that really is the subject of this case - "grub, fucking grub, maggot" - all of that started on 15 June. That's important because no one on the picket line, no employee, Mr Brodsky or Mr Smythe or anyone else who was associated with the picket, knew that the company had any issue, had any problem with it.

PN3078

Indeed, that's unsurprising in one sense in that Mr Dobbie, you will recall, said he didn't really have any issue. He was driving through day in, day out, and he just turned the radio up. No one raised the issue. No one said that, "This is a safety concern." No one said that, "The company regards this conduct as inappropriate." Day in, day out, people were taking film and two days before - sorry, yes, two days before the ballot was due to close, letters intended to start the disciplinary process were issued whereby for a period of a month nothing happened. Nothing at all happened in respect of this conduct. No one said a word. You will recall - and indeed as part of our case you, Deputy President, made the point in answer to something my learned friend said at the interim period that the letters don't just say, "We're just looking at this in a friendly, sort of peaceful, quiet sort of way." The letters say, "This is a serious matter."

PN3079

They use the word, "serious." That is important because if this was a serious matter on 15 July it was a serious matter on 15 June and if it was a serious matter on 15 June you would expect to see someone - Mr Wynn, perhaps, Mr Dobbie, perhaps - but someone doing something, saying something, trying to prevent it. You don't see anything. What we do know is that Mr Brodsky had a gentleman's agreement - he remained a gentleman in all of this - he had a gentleman's agreement with Mr Wynn whereby if issues arose, they would be raised.

PN3080

You would expect as a rational, common sense, reasonable approach that there was a serious issue, that Mr Wynn had some serious issue in the period 15 June to 15 July, that he would have picked up the phone and said, "Brodo, remember our gentleman's agreement? I'm concerned about what is going on on the picket line." The suggestion yesterday in evidence that the first available opportunity to do anything was 15 July is, with respect, utter nonsense. The Commission would reject any suggestion of that. The first available opportunity was on 15 June. It was no answer and is no answer and remains no answer to say, "Mr Brodsky was probably on the picket line at the time and was aware of what was happening."

PN3081

So what?

PN3082

THE DEPUTY PRESIDENT: Well, was it also, "And was standing next to his boss, who appeared to be the worst offender",

PN3083

MR REITANO: So what? Why not ring his boss and say, "Look, I've got a problem?" We're talking about grown men. We're not talking about children. We're not in the playground here. This is grown men involved in serious business, serious negotiations and to say, "I didn't ring them because they were doing it", so what? It just doesn't ring true. Let's talk about what does ring true. It's no coincidence that the letters go out on 15 July, as much as it's no coincidence that we want the names and addresses of CFMEU members is requested at 7.30 am and at 1 o'clock the same day Ms Wheatley is picking up - the private investigator is collecting those and it's also no coincidence that you don't find the names and addresses provided by email.

PN3084

But in any event, it's no coincidence that the action commences on 15 July and it's no coincidence that Mr Dobbie is viewing the videos on I think 11 July, 12 July. Sorry, I'll withdraw that - 13 July after he receives a call from Ms Cody, "Where is she?" You don't hear a word from her as to why she was making that call to Mr Dobbie on 11 July - not a word. Why is it that Mr Nicholls and I think Mr Cribb - and this is in our written submissions - Mr Nicholls and Mr Crib are talking about a measured response such as alerting employees by way of a letter to what the company's expectations are on 12 July and yet the heavy-handed approach is taken on 15 July, i.e., "Let's start a disciplinary process."

PN3085

Why wasn't the measured approach adopted and why was this conduct allowed to continue for more than a month before anyone said anything? This was acquiring weaponry. This was designed to put the company in a position where it could up the ante and escalate the situation. We deal at some length in the written submissions with the other aspect of the allegations. I've so far confined myself only to issues of, "grub, fucking grub, maggot." We deal with the social media and the Facebook question in the written submissions. I don't want to say a lot about those because it's dealt with and I can't really add a great deal.

PN3086

But there are two things that I want to make very clear. On 12 July - and you've seen the evidence - sorry, 13 June, we give the references to the evidence in the written submissions - letters of discipline are prepared for four employees about the social media stuff. They're left to sit on someone's desk until 15 July. Why? Unexplained, in my respectful submission, but let's go to the explanation. "We needed to talk to the employees first and they were on strike." It would ring true if we did speak to the employees first before we sent the letters. But it doesn't ring true in circumstances we spoke to one employee - potentially two, I think, but one was what came out of, I think, Mr Wynn and Mr Dobbie yesterday.

PN3087

They didn't speak to anyone before they sent the letters. You didn't need to wait till 15 July to send the letters. You didn't need to, if they're right that you're entitled to have employees comply with policy whilst they're on the picket line and somehow this offended policy. If they're right about that then they're entitled to get on the phone and ring the employees and say, "Look, we're sending you a letter", or, "Come in for a meeting - we want to talk to you about what's going on on the picket line." What stopped them from doing that?

PN3088

What stopped them from doing that is it got in the way of setting up the artillery that they wanted to use and the weaponry that they were going to deploy as retaliatory action for the ballot going down. It is entirely unexplained in any satisfactory way, other than by the inference that we ask the Commission to draw, as to why the letters weren't sent - that is in respect of the social media - at the first available opportunity on 13 June when the letters had been prepared. It's entirely unexplained why they were sent on 15 July other than by way of the inference that we asked the Commission to draw. We say that that inference is overwhelming.

PN3089

Could I then move to something else on a different topic, which again is dealt with in the written submissions but it's one of the headlines to draw the Commission's attention to by way of submissions. If this conduct was so serious and if this conduct attracted a disciplinary process in reality, as I've said you would expect someone to have said something in the period of over one month. But what was it that made the conduct so serious in anyone's eyes? Putting aside that we take the issue as to whether it was misconduct at all but what was it? What was it that made this so serious? Let's think about it.

PN3090

Mr Dobbie, apparently not a normal person, on Mr Wynn's evidence but Mr Dobbie is a person who had 23 years' experience in the coal-mining industry and said that he's heard far worse at the mine. Mr Dobbie said that he wasn't offended by it. Mr Dobbie said no one complained to him about it, formal or informal. I know my friend will point to something that came out in re-examination. Mr Dobbie's evidence was clear - no one had complained to him about it. No one had said that they were offended by it. No one had said that they were intimidated about it or by it. No one had said that they were harassed by it.

PN3091

He didn't gild the lily. Mr Dobbie was very frank and in fact my recollection is - and again I think there is a reference in the writing - Mr Dobbie volunteered that he wasn't offended by it. So what was it? If it wasn't offensive what actually was the issue that made this so serious and why was it all right on the one hand, in the context of this misconduct or this alleged misconduct, why was it all right on the one hand for the general manager of the mine to be calling the workers, "cunts", and yet grubs on a picket line was to be treated differently?

PN3092

The only rational explanation for that - sorry, I should go back one step further: why was it okay for Mr Wynn to swear at employees in the context of them returning to work and be aggressive towards them but employees on a picket line weren't allowed to say, "Grub, fucking grub or maggot?" What was it? What made their conduct different? The only difference is of course that their conduct was CFMEU conduct on a CFMEU picket line. That was the only relevant difference in my respectful submission.

PN3093

Next can I say something about what we say in paragraph - I think it starts - I should alert the Commission to this, sorry. I should have done this at the outset. This is all Mr Massy's fault, not mine. You will see after the first paragraph 27, the next paragraph is numbered 19 and then the numbering restarts. What we'll do is we'll correct that and send a proper copy to everyone once we get back to Brisbane. But you will see - sorry, I did go to 57 and I should have gone firstly to 43. 43 is under the heading which starts on the previous page, "Discipline is being used as a weapon."

PN3094

We set out there - I think there are eight bases for why we say that. I haven't developed them all and I don't intend to. As I said I've confined myself to the big picture items as we see them. I want to go to though 57, where we say that the disciplinary action is objectively unfair and you will see in paragraph 58 we say that the conduct complained of is not capable in the context of the case - and we say that's very important - that is in the circumstances of a mine in central Queensland in 2017, that the conduct is simply not capable of constituting misconduct.

PN3095

There is no evidence that anyone was offended, intimidated, humiliated, harassed or distressed by the conduct. There is Mr Dobbie's evidence about that. There is the evidence that Oaky Creek has always tolerated bad language. We're talking about a coal mine, not a child care centre. We're talking about, "men being men." We're talking about the context of people calling each other names at the mine in all sorts of contexts, including of course, as I said, Mr Nicholls. You'll see in paragraph 60 we referred expressly to that. You will see the absence of warning. You will see the absence of training about what behaviour is expected of people, even if they could control CFMEU members in their union activities on the picket line, the absence of any suggestion of training as to what the company's expectations were when people behaved in that way or behaved - sorry, when people were on a picket line. You will see the approach in the circumstances was that Mr Brodsky said in his evidence and no doubt this is what will be said against us is it's very self-serving, the problem is Mr Brodsky's evidence about the advice he gave to people about calling people, "scab." That's the problem with saying this evidence is self-serving.

PN3096

If the matter had been drawn to his attention, he says in his statement, he's a little equivocal about this and in fairness to him he's equivocal about it because it will be seen as self-serving evidence - he says, "Well, look, if this had been drawn to my attention as being an issue I probably would have got some advice on it and I probably would have told them to stop it. I can't say that for sure but I probably would have because it's just a distraction", and he's very clear about that and he remained unchallenged on any of that, and it appears in paragraph 41 to 43.

PN3097

Could I just move then away from - I'll come back to it very vaguely at the end - but move away from the question of the disciplinary process and move to the question of surveillance. Again, we have included in our written submission all of the references to where employees say that they were aware that they were being monitored or surveilled. You don't and should not build a surveillance case solely based on what we were able to establish through the evidence and cross-examination and the discovery process about what was going on.

PN3098

There are two sides to or two parts to this jigsaw. On the one hand, employees telling you - CFMEU members telling you - I was aware I was being watched. Not, I was aware that they were watching other people. I was aware that there were people parked outside my house and watching me and my wife was aware that she was being watched. That is really, in the circumstances, you get no answer to much of that evidence.

PN3099

Can I remind the Commission that Mr Wyatte gave evidence in his statement that he witnessed someone driving up and down his street 16 times in one day and you get no explanation for that. None at all. There's nothing offered by Oaky Creek as to why Mr Wyatte was able to watch a security patrol go up and down his street 16 times in one day. Bear in mind, of course, Mr Wyatte is a member of the lodge executive and a vice president. He says that and there's no evidence to suggest that that's wrong or should be called in doubt.

PN3100

What is more disturbing is the evidence that you saw yesterday that I've already referred to once and I'll probably refer to it a few more times because it's pretty powerful stuff. "Please give me the names and addresses of CFMEU members." Why would you want the names and addresses of CFMEU members? Why would you ask for them? Where is the email in response to that? We had a conversation about it. Why wouldn't you immediately, if that was so wrong and was not to be done, why wouldn't you get on the email and say, "What the hell are you doing? Why would you want that information? How dare you?" You don't get any email in response to the email requesting. You get some conversation that apparently happened two days later.

PN3101

What we know happened the same day is Ms Wheatley, the private investigator working for the same security company as the person who made the request, went and collected the information. Why? And why was an intel brief, which included that information, being prepared, and why were maps being prepared in this somewhat bizarre, almost military operation?

PN3102

Why was all of this being done in the context where Mr Massey reminds me of Mr Chesworth's email in A49 that all of that - that request for names and addresses - was to update the maps that they already had? Why? You don't hear any explanation for any of this, other than a denial and it doesn't sit with the documentary evidence. It just doesn't sit with it.

PN3103

The simple fact is and the reality is when you put the two pieces of the jigsaw together, I'm being surveilled and they've requested names and address of CFMEU members, it necessarily follows that they were being surveilled or monitored. There's no satisfactory explanation for why that was happening. The inference is overwhelming, in my submission. Why would you surveil employees?

PN3104

It raises another issue that probably should have come before dealing with what I say is the powerful and overwhelming evidence that they were being surveilled: why would you do that? What would be the reasonable explanation as to why you would surveil, for example, Mr Wyatte? Why would you want to look at him and why would you want him maybe to even know, by driving up and down his street 16 times, that you were watching him? What possible reasonable explanation could there be for that conduct? Of course, the only explanation in the circumstances can be that you are trying to deter him and distract him from his bargaining by letting him know: you're being watched.

PN3105

We refer in our written submissions, I think, to a case I think the Commission as constituted dealt with, surveillance in the context of workers compensation surveillance in an unfair dismissal case. It's in there.

PN3106

THE DEPUTY PRESIDENT: Yes.

PN3107

MR REITANO: I can't tell you the name of it but it's in there. Sorry, Kinane.

PN3108

THE DEPUTY PRESIDENT: Yes.

PN3109

MR REITANO: I think the Commission says something like this, and I mean no disrespect to the Commission in verbally - but I think it says something like where you're going to surveil people, there's got to be some reasonable basis for it, and a reasonable basis isn't established here.

PN3110

You might recall that there is no suggestion, not one scintilla of a suggestion anywhere in the evidence that any of these employees had ever threatened anyone from Oaky Creek Management or engaged in any act of violence against them. The most violent it gets is when Mr Nicholls, rather than them, calls them cunts.

PN3111

Indeed, when you look at the briefing note that was prepared, that I think Mr Chesworth or Mr Solomon - maybe I should refer to him as my friend Mr Solomon - in A51 where there's a brief of information prepared about what's going on and next to: "Employees with history: Identify employees that may constitute a particular threat", and you get the interesting entry to be discussed. You don't see Mr Wyatte's name there. You don't see anyone's name there. You certainly don't see Mr Wyatte's name there. One of them - I think it was Mr Solomon - helpfully said, "Yes, there was a discussion and no one was identified." No one was identified.

PN3112

What's the basis for surveillance in the first place? What's the reasonable explanation for it in context? This was organised, this whole surveillance exercise of the picket line, one might reasonably understand why you might surveil that and keep your eye on it. It's outside your front door of your mine but why would you be driving around Tieri letting union members know that you're watching, where there's just absolutely no - there's nothing in the evidence. There's nothing put forward that will form any basis for why Oaky Creek North would become the Tieri police force. None at all. There's no reasonable explanation for it at all.

PN3113

Then there's the dangly bits, if I can call them that, or the bits that hang on the edges of all of this. Why were they looking at the pub and why were they looking at the Girl Guides Hall where the CFMEU members regularly met? All of that just points to that there was one massive surveillance exercise going on for a purpose and that is to let CFMEU members know that they're being watched and to interfere with their bargaining.

PN3114

Next I need to deal with the issue of clothing. Ordinarily at this mine people were entitled to wear what they liked to work and people wore, the evidence shows, the CFMEU paraphernalia. The basis that's put forward for why there was a ban introduced on the 15 July for wearing CFMEU paraphernalia was said to be because it was associated in some way with the picket line. Maybe, except for the fact that when they come in the next day with a different CFMEU outfit, they're told they can't wear that either and there's a challenge to Mr Wynn about that and there's a conversation about it, and Mr Wynn is challenged on, "Well, hang on a minute, you said yesterday we could wear our jackets, I think it was", and on one version he said, "Well, today is today", and there's a conversation about it.

PN3115

But what happens next? The employees have turned up and after they've had this debate about wearing their clothes, they're told that they're surplus to requirements, after they have a conversation about not being able to come in because they wear CFMEU clothing. That's very important. He doesn't say, "You can't come in today because you're surplus to requirements." He doesn't say that at all. The first thing he says to them, "You can't come in because you're wearing CFMEU uniforms", which had been something that had been tolerated the whole time up until 15 July. All of a sudden the CFMEU, the bargaining representative, the organisation in which these employees were freely associating, became something that was anathema to Oaky Creek. Why? Because we want to deter you away from having the CFMEU collectively bargain on your behalf and away from your right to associate with them. The explanation that's given doesn't withstand common sense, as I say, because the first response is you can't come in because of what you're wearing.

PN3116

In any event, it's not the clothing or what people wear. Even if you were, for one moment, to countenance the suggestion that - how you do this I don't know, but even if for one moment you were able to countenance the suggestion that what people are wearing somehow has some effect on the work they're doing, the people they're working with, everybody knows - everybody knows - who was on the picket line. About 50 or 60 a shift, as I recall. Everybody knows who was on the picket line and what they're wearing has nothing to do with anything.

PN3117

If this was a real concern and if this was a real complaint that Mr Wynn raises in respect of people working at the site, you would expect to see some evidence, some vague suggestion in the evidence, that there was an intention on the part of CFMEU members, when they were going back to work, to bring some form of the antipathy that is suggested that was on the picket line into the workplace.

PN3118

Mr Wynn made it clear I don't want any of that stuff coming in here. No one said, "Oh, yeah, it's coming in. We're going to bring it all in." No one. No one suggested that for moment. In fact, in the evidence you'll see we just wanted to go back to work, a number of the employees say. There's no suggestion at all that anything that was happening on the picket line, clothing or no clothing, was going to be brought into the workplace.

PN3119

It might be different and this case might be different and we might be on shaky ground if, for example, someone went in there and called someone a grub. You could add to that: and they were offended, intimidated, harassed, distressed, annoyed by it. But if that did happen, you might have some basis for saying that there was a reason for them to be turned away. Nothing to do with their clothing. Nothing to do with their clothing. What they wear has nothing to do and it, quite frankly, is an implausible explanation.

PN3120

The reality of this case is that after 15 July, in respect of anything to do with the CFMEU, the company was doing its very best to deter people from involvement, whether by way of what they wear, by way of surveillance in the township where they lived, and by instituting a disciplinary process that was to make them believe that the CFMEU wasn't doing the right thing by them.

PN3121

THE DEPUTY PRESIDENT: Can you assist with the time at which the notices - because as I understand, there were notices to take protected action on 15 and 16 July and they were withdrawn.

PN3122

MR REITANO: Yes.

PN3123

THE DEPUTY PRESIDENT: At what time and in what - - -

PN3124

MR REITANO: Were they withdrawn?

PN3125

THE DEPUTY PRESIDENT: Yes, and in what manner were they withdrawn?

PN3126

MR REITANO: We find the reference that they were withdrawn on the morning of the 15th.

PN3127

THE DEPUTY PRESIDENT: All right.

PN3128

MR REITANO: We'll give you the reference in a moment.

PN3129

THE DEPUTY PRESIDENT: Thanks.

PN3130

MR REITANO: We'll get it.

PN3131

THE DEPUTY PRESIDENT: My recollection and Mr Massey's recollection, it's in exhibit A2. It's just a matter of where it is, which, as Mr Brodsky's statement.

PN3132

MR REITANO: Finally, sorry, I did say I wasn't going to say a lot about the social media issue and there's one specific matter that I wanted to deal with about that, and it won't take me very long and I reckon I've said it a few times already, both in cross-examination and on the interim application. What people do in their union meeting is not a matter over which Oaky Creek has any control. If someone, who we don't know who the person is, but if someone leaks what happens in a union meeting, whether it be by way of what is said or by documents that are delivered, it's probably a bit like the Federal Cabinet at the moment, but if someone leaked stuff, we have no control over that but we are entitled to have a union meeting and we're entitled to speak freely, particularly - particularly - particularly - I'll say it one more time: particularly - in Australian in 2017. We are entitled to say what we think in an open and free forum, which is our union meeting.

PN3133

THE DEPUTY PRESIDENT: Do you say that the Facebook page is a form of union meeting?

PN3134

MR REITANO: That's exactly what it is, in my submission.

PN3135

THE DEPUTY PRESIDENT: I understand.

PN3136

MR REITANO: That's why it's evidence. Sorry, I think, well, is it Wyatte, Jarrett and Allen? Sorry, it was Jarrett and Allen in their oral evidence that they gave to you. The Facebook page, as I think I took someone who knew about Facebook through it, just to make it clear, the Facebook page was limited to - it was Mr Allen, the lodge president, the last witness - he explained that the Facebook page was limited to lodge members. It was only those people who could see it, as he understood it. I think some other evidence came out about it but certainly his evidence - and there was no controversy about this - the Facebook page was limited to lodge members. They were the only people who he understood had access to it.

PN3137

Now, if someone else either got in there and got the information - again, I'm not cavilling with the Commission's ruling about it. I accept that entirely but I can only proceed on the basis that I don't know who the person is and speculate. (Indistinct) someone got in there and got the information. I don't know how. I couldn't assist you on hacking or anything like that but we know from general knowledge that that sort of thing happens. Or the other possibility is that one of the members advertently or inadvertently leaked that information but it was always intended to be information confined to union members. That was always the intention of the Facebook page.

PN3138

THE DEPUTY PRESIDENT: But if there's any doubt about, leaving aside whether the conduct and the EEO and harassment policy applies on a picket line, the social media policy, as I recollect, makes it very clear to people that regardless of whether you think you're social media pages are private or not, they're not. They're out there in cyberspace and what - - -

PN3139

MR REITANO: That's their view.

PN3140

THE DEPUTY PRESIDENT: Yes, and what you put on, but there is little doubt in the social media policy that the company has that, you know, regardless of whether you think it's private or not, you put something on social media that's derogatory and demeaning of a work colleague and we will treat it as a disciplinary matter.

PN3141

MR REITANO: I don't know if it says those words but the substance of what it says is - - -

PN3142

THE DEPUTY PRESIDENT: The substance is that as I understand. Anyway, yes.

PN3143

MR REITANO: Yes, and the policy is entirely contrary to and undermines freedom of association. We are entitled to associate. We are entitled to associate in the way we choose to associate. If I send Mr Allen an email and send him an email only, they can't control me sending emails to Mr Allen. I'm entitled to send him an email. I'm particularly entitled to send him an email in a free society. I'm particularly entitled to send him an email in the context of the fact that we are union members and I'm entitled to do that and they can't infringe upon my right to do that and their view of social media may not be our view and it's certainly not Mr Allen's view.

PN3144

THE DEPUTY PRESIDENT: You say you can distinguish, I guess, the genre of cases - social media cases - where people have been disciplined for posting inappropriate comments about work colleagues on their social media pages? Your submission is this case can be distinguished because the social media platform in question is a union Facebook page that's open only to members of the union and it's caught by provisions about freedom of association.

PN3145

MR REITANO: I don't know about the last bit but, yes, I agree with all of that. The one issue is whether you need to go that last bit and say it's caught by freedom of association. I suppose in the context of this case I do need to say that but if I could just put that to one side.

PN3146

If I go to a union meeting in the bar out the back there with all the members which we plan to have at lunch time today, if I go to that meeting - - -

PN3147

THE DEPUTY PRESIDENT: Noted. I'll have to go somewhere else.

PN3148

MR REITANO: You will. If I go to that union meeting and everyone knows that it is only union members who are invited to that meeting, and we make comments that might not be appropriate to make in mixed company or in public, but we make those comments amongst ourselves about the conduct of the case, the various participants, the evidence that was given, the fact that Mr Allen decides to walk outside and tell people about it, makes it nonetheless not a union meeting and not intended to be confined to us, and the fact that that can happen makes it nothing less than a union meeting. It always is what was intended. It was always intended to be confined to those people. It was not intended for general publication and that is the view they took of their Facebook platform.

PN3149

For the purpose of this case, yes, you add freedom of association. You using against me what I say in a union meeting undermines freedom of association, and the fact that it's said on a Facebook private page as against in the main bar over here makes little difference, in my respectful submission. It is the same point.

PN3150

THE DEPUTY PRESIDENT: Does your submission to the effect that what you said about the picket conduct, that in the alternative it was unfair to treat it as a disciplinary matter without providing notice that such a view was to be taken, does your submission in relation to that go to the social media activity as well?

PN3151

MR REITANO: Only to the extent that it wasn't - one of the difficulties with what I said about and the way you've presented what I said about the picket, was I think I prefaced it with, "Even if they could."

PN3152

THE DEPUTY PRESIDENT: Yes.

PN3153

MR REITANO: With the social media policy - - -

PN3154

THE DEPUTY PRESIDENT: It's not an alternative position, it's a comment: even if they could it's unfair. I understood your submission about the picketing to say, and even if you find that the conduct was inappropriate and the company was entitled to - - -

PN3155

MR REITANO: Entitled to do it, yes.

PN3156

THE DEPUTY PRESIDENT: - - - to take a view about it, then in the alternative it was unfair to the company to do it, in the context of matters which included the whole dispute in total, and the fact that they didn't take the first step of firing a shot across their bows and saying we will take this view if you continue.

PN3157

MR REITANO: Yes, and in respect of the Facebook page, one of the things I said in relation to the issue you've identified in respect of picketing is that they weren't presented with any specific training about what the company expected of them when they were involved in a CFMEU picket line. I find that whole submission very difficult to make. It doesn't make a whole lot of sense that the company can tell you how to behave when you're engaging in your union activities protesting about the company. That's why I say how can it amount to misconduct?

PN3158

Put that to one side. In respect of Facebook, yes, there was no specific training in respect of your union activities whilst on Facebook, and that those union activities, likewise, were to be regulated by the company and there was no warning give that, look, we're looking at your Facebook page.

PN3159

THE DEPUTY PRESIDENT: We've launched Operation Zuckerberg and we're looking.

PN3160

MR REITANO: Yes, absolutely.

PN3161

THE DEPUTY PRESIDENT: Yes, understand.

PN3162

MR REITANO: And not only are we driving up and down the street but we're looking all over social media for you. I think Mr Dobbie referred to is as trolling through social media.

PN3163

THE DEPUTY PRESIDENT: I think he meant trawling but in any event that's - - -

PN3164

MR REITANO: Maybe, but in any event that's our submission on social media. I'm told that there was a meeting, that the answer to your question about - and I think there's some other evidence, which when I sit down I'll see if I can find it - but there was a meeting that's referred to at A20 of Mr Richard's statement, which is at paragraph 31. There was a meeting on Saturday morning, which voted to return to work.

PN3165

THE DEPUTY PRESIDENT: You don't submit that the company was not entitled to say in light of the fact that you've overwhelmingly voted down our agreement that we put to you, you're locked out again?

PN3166

MR REITANO: No. I can't remember the mechanisms by the Act but in general terms, in terms of taking the retaliatory action, of course they can. That's sanctioned by the Act. Yes, it just doesn't fall. Like all the other stuff, it can't be described as a low blow or outside the scheme of what's contemplated by the Act.

PN3167

THE DEPUTY PRESIDENT: I understood that at some point of your submission you said that days later after that ballot had gone down, they upped the ante and started the disciplinary process and locked them out.

PN3168

MR REITANO: Yes.

PN3169

THE DEPUTY PRESIDENT: There's no suggestion that they didn't have the right to lock people out?

PN3170

MR REITANO: There's no suggestion that they didn't have the right to lock people out, no. One of the things that - I think the case is Tarmore, I think - but one of the cases that went up on this section - - -

PN3171

THE DEPUTY PRESIDENT: All's fair in love and war. That was Tarmore, I think.

PN3172

MR REITANO: Not quite all but it says you've got to look at all the circumstances. You can't just focus on one thing and in circumstances where - and what I was trying to say was in circumstances where you're locking people out, it has a different character when you say, one, you're locked out and, secondly, I'm starting a disciplinary process against you.

PN3173

THE DEPUTY PRESIDENT: The lockout is contextual to the disciplinary process.

PN3174

MR REITANO: Yes.

PN3175

THE DEPUTY PRESIDENT: It's an added - - -

PN3176

MR REITANO: The other way around. The disciplinary process is contextual.

PN3177

THE DEPUTY PRESIDENT: Yes.

PN3178

MR REITANO: Not only am I taking - I mean, I can't terminate your employment because you're taking industrial action. I can lock you out. Let me just tell you, while I'm locking you out I'm going to think about what sort of action I'm going to take against you, because I want you to worry about this and I read to you right at the beginning of my submissions what a couple of the employees said what their state of mind was when they were subject to the disciplinary process.

PN3179

One of the things that I'm reminded to say and it arises directly out of what you've asked is that you can't consider any of this in isolation. You can't say there is surveillance that fits into a nice little box. Even though that's what I do in my submissions and that's what I do in my mind and that's what I do in my general carrying-ons, it doesn't fit into a neat little box. It's one circumstance that must be taken into account in all the circumstances. The other circumstances are, for example, the union clothing. The other circumstances are the disciplinary process but they're not divorced from the fact of that there'd been strike action, the fact that subsequently that there was a lockout. They're not divorced from the fact that the action or the negotiating had been going on for years.

PN3180

My friend put somewhat virtuously to one of the witnesses you had two meetings after the disciplinary process proceeded. Well, so what? So what? If they put another agreement out to vote, subject to us making interim applications and the like, if they'd put another agreement out to vote after those two meetings, what would have been the state of mind of employees knowing that a disciplinary process had occurred because the other vote went down or in some way was associated with the other going down. It's all the circumstances, no just some of them.

PN3181

The final matter that I want to deal with - and I don't think it appears in the written submissions but it needs to be said, and perhaps it is another circumstance that you need to consider - it arises - I don't think - I don't think the analogy is good but it will do - you will recall that on the first day of the hearing there was some cross-examination of some witnesses about Mr Nicholls' state of upset when people went home over a black lung meeting sometime last year, and that was said to justify or the tenor of the cross-examination was that was said to justify angrily calling workers cunts.

PN3182

It should not be lost in the circumstances of this case that we are as offended - I withdraw that. We are offended by the fact that someone would go into our workplace during our bargaining and do our job and we don't apologise for being offended by that, because we consider it to be wrong and we are entitled to be offended by that and we're upset about it. There is not one iota of evidence that anyone is offended by anything we have done.

PN3183

If it please the Commission.

PN3184

THE DEPUTY PRESIDENT: Thank you. Mr Murdoch?

PN3185

MR MURDOCH: Your Honour, my oral submissions will take at least as long as my friend's. It might be an appropriate time now to take a morning break, rather than (indistinct) process.

PN3186

THE DEPUTY PRESIDENT: Yes, sure. Half an hour?

PN3187

MR MURDOCH: Sure.

SHORT ADJOURNMENT [10.16 AM]

RESUMED [10.44 AM]

PN3188

THE DEPUTY PRESIDENT: Mr Murdoch?

PN3189

MR MURDOCH: Yes, may it please the Commission? Can I hand up to your Honour a copy of the written submissions that the respondent relies upon?

PN3190

THE DEPUTY PRESIDENT: Thank you.

PN3191

MR MURDOCH: There is one attachment and that's a copy of the interim order made by Commissioner Spencer on 27 July 2016. Can I just say at the outset, as well, that your Honour will note that the written submissions refer to a number of case authorities? For reasons that Your Honour will no doubt understand, we don't physically have them here.

PN3192

THE DEPUTY PRESIDENT: No, that's all right.

PN3193

MR MURDOCH: We're quite prepared, if your Honour wishes, to have them sent through to your Honour's chambers by the close of business today.

PN3194

THE DEPUTY PRESIDENT: Thanks.

PN3195

MR MURDOCH: Can I say at the outset, your Honour, that one of the important things that, in my submission, the Commission needs to bear steadily in mind in considering how this case ought to be determined is the context that was in place at all material times and I'll come back to context at several times during the course of the oral submissions.

PN3196

I note, looking briefly at the submissions of the applicant, and again this is something that I'll come back to several times, is that when one looks at the introduction, and there's a description there as to what it's said Oaky Creek decided to do, each of the matters in the respondent's submission that are referred to at subparagraphs (a), (b), and (c) are an oversimplification of what, in fact, did occur and do not pay sufficient regard to the context in which what did occur was happening and, as I said, I'll deal with that as I work through the submissions.

PN3197

Your Honour, the written submissions first set out what the respondent contends is the relevant factual background to the matter and, in my submission, it's important to consider that relevant factual context. In particular, in light of the allegations that have been made in this case, it's relevant to note that when the letters that were issued were issued, the employees had been on a series of rolling stoppages for about one month.

PN3198

As is clear from the evidence, some employees first came back to work on 15 July and it was only on 15 July that the previously issued notices of taking protected action had been withdrawn, and there was also a return of some employees on 16 July. From 17 July onwards, the stoppages on the part of the employees continued and then from 20 July onwards the employer took employer response action by way of a lock out.

PN3199

Much has been said by my learned friend about the timing in respect of when the various letters were sent. It's relevant to note that the social media communications first came to the respondent's awareness in mid-June of 2017. During the period between when they came to the knowledge of the respondent and when the letters were ultimately issued, the employees weren't at work. So everything that's been said about the normal practice that the respondent engages in, in respect of issuing letters when people are available to issue them face to face, was not able to be complied with due to the particular factual circumstances that were in play at the time.

PN3200

In so far as the picket is concerned, the evidence is that the picket first commenced on around 14 June at the corner of Oaky Creek Mine Access Road and Maywin Drive. It didn't move to the location outside the entrance of the mine until late June. As I'll take you to in a moment, there was then a situation where from about the end of June going forward, in particular from early July, there was a range of conduct that was reported by security personnel that was of concern to Mr Wynn.

PN3201

A point in time arrived from about the beginning of July, from Mr Wynn's evidence, where he was able to identify or it was able to be identified from the footage that there were particular people engaging in particular action. There was an investigation commenced in respect of what conduct the company says - and I'll come to the reasons in more detail shortly - was of concern to it. Bearing in mind, of course, that at all these times the respondent is in a situation where its ordinary workforce is on strike. It's got a picket at that front gate. It's having to continue to operate the mine by use of staff and contractors. In addition to all of that, there is an investigation occurring in respect of the social media and the conduct on the picket.

PN3202

Consistent with the process that's normally adopted in respect of issuing investigation letters, the letters are issued at the first available opportunity to have a face to face discussion with an employee and that's when some employees come back to work on 15 July. The evidence is that of the cohort that came back to work on that date, only two were people in respect of whom it was proposed that letters be issued. A letter was issued to one of those people face to face. For reasons of practicality, as explained by Mr Wynn, in respect of the second person the letter wasn't able to be issued on that shift. There was a third person who was expected to work on a subsequent shift. For reasons that we're not critical of, he didn't arrive.

PN3203

The respondent was then in the situation where, having undertaken its investigation, having determined that it was appropriate to issue the investigation letters, it had started the process, issued letters to one person, apprised another person of the potential for the letter and, as Mr Wynn explained, in that particular factual context it was then determined to issue the remainder of the letters.

PN3204

In the respondent's respectful submission, when one looks at the context in which the respondent was operating, that is an entirely credible and acceptable explanation for the timing.

PN3205

This conspiracy theory - and I mean it as a conspiracy theory about the letters in some way being linked to the timing of the vote - is a massive over-reach on the part of the applicant and one that just can't be sensibly accepted when one looks at the actual facts on the ground in respect of which the respondent was operating.

PN3206

The chronology that's set out in paragraph 1, in addition to the matters that I've particularly addressed you on, sets out a number of other facts relevant to the location of the picket at various times and I don't intend to read them into the record. Your Honour will note them in due course.

PN3207

Can I then move from the chronology to talk a little bit about what the conduct was and why it was of concern to the respondent? Your Honour has seen in the statements filed by Mr Wynn and Mr Dobbie numerous references to what the respondent was aware of as taking place in terms of both social media and in terms of behaviour on the picket line up until the time at which the letters were issued.

PN3208

It is true that in this particular case the respondent hasn't called every security guard who witnessed the conduct, hasn't called every Ashurst lawyer who witnessed the conduct but in my respectful submission, given the test that your Honour has to apply in this case, the respondent didn't need to, because your Honour needs to consider and yet only consider, in my respectful submission, whether objectively the respondent, in taking the steps that it took, principally in respect of the letters, acted in a manner that was not unfair or acted in a manner that was not capricious.

PN3209

In considering that, your Honour ought to, in my submission, focus upon what was the information that was held by, in particular, Mr Wynn and also Mr Dobbie at the relevant time. It's plain from Mr Wynn's affidavit that there was a plethora - an abundance - of evidence of what could objectively be regarded as inappropriate behaviour directed towards persons merely trying to enter the workplace or exit the workplace, directed towards persons merely trying to exercise their right to work, their right to choose their employment. A plethora of inappropriate conduct directed towards those people is set out in the material attached to Mr Wynn's statement.

PN3210

In regards to the conduct that's the subject of the letters, I don't intend to go to each letter in detail but, when one works through it, the examples of conduct include such things as yelling at the occupant of a vehicle exiting the mine referring to that person as a grub; yelling at the occupant of a vehicle exiting the mine referring to that person as a fucking grub; yelling at the occupant of a vehicle exiting the mine referring to that person as a maggot; referring to Mr Nicholls as a c-u-n-t in the Facebook page; referring to another person as a dog and then making a statement, "I know who you are and go for your life. Chew on this one, you maggot", on the Facebook page; posting a comment on the Facebook page stating, "Lynching in order"; referring to a manager as cunning and manipulative, as a person whose made threats against people who supported black lung and a person who took unwarranted reaction; holding up signs containing a drawing of a grub towards vehicles exiting the mine; posting the image of a person holding a pick standing over another person stating, "How to pick a scab, step one"; references in the Facebook material to a manager as a fuckwit; on the picket, yelling at the occupant of a vehicle entering the mine directing the words, "Go, you grub" to the occupant of the vehicle; using a mobile phone to film, photograph, five vehicles and their occupants leaving the mine so as, in the respondent's submission, to intimidate the occupants of the vehicle.

PN3211

That's the letters. That's the conduct in respect of which the respondent was, from the vision, able to identify the person was it was alleged was engaged in the conduct.

PN3212

Beyond that, up until the letters were sent, there's a cavalcade of further inappropriate conduct occurring on the picket that is embraced by the applicant as the CFMEU picket yelling, "Fucking scab" to vehicles going to and from the mine; giving people the finger as they go to and from the mine; making barking noises, shouting towards cars leaving the mine, "Go home, you dog." Yelling at cars entering or exiting the mine, "Dickhead. You're taking our jobs, grub. Fuckhead. Have an accident, c-u-n-t"; yelling at vehicles entering or exiting the mine, "Scum". I could go on and on and on.

PN3213

This was the context in which the respondent determined to take the steps that it took to issue the letters that it did to the individuals who it could identify as engaging in what it regarded as potentially inappropriate conduct on the picket.

PN3214

Can I move from that discussion about the behaviour, which is an important part of the context, to deal in a little bit of detail with the word "grub" that's of such prominence in this case? Your Honour will recall the cross-examination of Mr Brodsky and each of the lodge executive on the first day of this case.

PN3215

Notwithstanding the statements made in the various written statements in this case that people didn't understand what the problem with the word "grub" was, if they'd been told there was a problem with the word "grub", they wouldn't have used it and things of that nature, it became very clear very quickly that the word "grub" was being used because they knew - they well knew - that if they said what they really intended, that being the word "scab", they would be very likely to be the subject of disciplinary action.

PN3216

What did they do? They expressed their feeling that the people, as they put it, crossing the line were scabs by substituting the word, "grub". In effect, the word "grub" - well, not in effect, plainly the use of the word "grub" was to have the same connotations as the use of the word "scab". Summarised at paragraph 6 in the written submissions is the evidence given by Mr Brodsky and each of the lodge executive to that effect.

PN3217

I note in particular the evidence given by Mr Jarrett in that respect. When asked about why the word "grub" was being used as opposed to the word "scab", it was put to him, "Because you can't call it a scab but you will call it a grub." His frank answer was, "Well, the definition doesn't change, just the word." You'll recall that Mr Jarrett is the person who accepted in cross-examination that the words that he accepts he used, being "Jimmy, Jimmy, Jimmy, grub, grub, grub", was focussed on a particular staff member, Mr Jim Young, who was a deputy who was driving the shearer whilst the workers were out on strike. Plain that there was targeting of Mr Young because he was regarded as a scab and, in my respectful submission, the Commission can readily infer that the use of the word "grub" was intended to convey all of the loathsome connotations that each of the witnesses accepted apply to the word "scab", and the Commission ought to reject any suggestion that anyone thought that the use of the word "grub" was in some way okay. That's the context in respect of which my client acted.

PN3218

Can I then move from that discussion of the context, and I'll return to the context in a bit more detail later, to just touch upon the nature of the application before the Commission and the tests that the Commission has to, with respect, apply? Can I deal firstly, and this is set out in paragraph 8 with the orders that the applicant seeks?

PN3219

The orders are deceptively - I should say I'm not being pejorative in saying deceptively - the orders are deceptively straightforward. The first order sought is that the direction issued to the employees, the employees no longer are permitted to wear clothing associated with the CFMEU, et cetera, be withdrawn. As the Commission will see, there's no utility to make such an order because no such direction was given and I'll take you to that in due course.

PN3220

The next order sought is that the respondent, et cetera, cease undertaking or causing to be undertaken surveillance of employees outside the precincts of the mine and the picket. Now, as the respondent understands the order that's sought there, what is sought is not an order that the respondent stop surveilling people outside the precincts of the mine or stop surveilling the picket, but what's sought is an order that what's said to be the general surveillance around Tieri should stop.

PN3221

The Commission should immediately, in my respectful submission, be concerned about the width of such an order, because if the Commission were to make such an order as sought it would be so broad that it would prohibit the respondent, for any good reason as between now and when bargaining ends, from conducting any form of surveillance around the township of Tieri for any reason.

PN3222

The next order that's sought is that the respondent take no further steps with respect to the investigation letters issued to employees. In effect, what's being sought there is that the employer be prevented from continuing or finalising the investigation that has been embarked upon.

PN3223

Then orders are sought in respect of taking no action - no disciplinary action - against the employees the subject of the investigation letters, and that's being sought in circumstances where, plainly from the letters themselves, the employer is not at the point and will not be at the point of taking disciplinary action if any is to be taken, until the response, as to the facts which the employees have been invited to make, has been made.

PN3224

THE DEPUTY PRESIDENT: Well, is that the case, Mr Murdoch, because this is a matter, I think, I raised at the last proceeding. Essentially, as I recollect the letters, basically they say that your conduct, if proven, is serious, et cetera, et cetera, and basically it's if you did those things, then that's the end of the matter and arguably the employees did do the things, because there's photographic evidence of it, there's video tape evidence of it, so if you did this then, really, the only possible answer that the letters really raise that can exonerate the person is for them to say, "I didn't do it", and arguably when they're on video doing exactly the thing that the letter says, it's going to be pretty difficult for them to evade the disciplinary action, isn't it?

PN3225

MR MURDOCH: Your Honour, that is, can I respectfully say, not fair reading of the letters.

PN3226

THE DEPUTY PRESIDENT: Right.

PN3227

MR MURDOCH: The letters refer to the conduct, picking up your Honour's example about people who have been picked up on film. By way of example, can your Honour go to the letter to Danny Allen? That's at page - I don't know which statement your Honour is looking at - but that's at page 42 of Ms Birch's statement.

PN3228

THE DEPUTY PRESIDENT: Yes. Yes, okay, I've got that. Yes.

PN3229

MR MURDOCH: If your Honour works through the letter, the first paragraph:

PN3230

I've become aware of what appears to be conduct by you, which may be in breach of Glencore's values.

PN3231

Et cetera. You'll note the use of the words, "appears" and "may be". Nothing has been decided.

PN3232

Your Honour will come down to the third paragraph.

PN3233

The company recognises the rights of employees to take protected industrial action, to participate in lawful industrial activity, to engage in a peaceful protest."

PN3234

Et cetera. Then there's a reference to policies. Then if your Honour goes to the next paragraph:

PN3235

I've been provided with footage taken by the company's security monitoring the protest. Having reviewed that footage I am concerned that you have acted in a manner which is inconsistent with Glencore's values and may be in breach of the policy and conduct policy.

PN3236

Next paragraph:

PN3237

The footage appears to indicate that you were present at the protest."

PN3238

Et cetera.

PN3239

A copy of the footage is enclosed. Yelling at a person.

PN3240

Et cetera. Set out there at the bottom.

PN3241

Then if your Honour goes over to the next page after the conduct is referred to:

PN3242

I am satisfied that your apparent conduct

PN3243

Note the word "apparent".

PN3244

had sufficient connection to your work.

PN3245

Et cetera. Then the next paragraph:

PN3246

Your conduct, if proven, is serious. Such conduct would be inconsistent.

PN3247

Et cetera. So there are (indistinct) - - -

PN3248

THE DEPUTY PRESIDENT: My recollection of Mr Allen, it would be pretty hard for him to say, "It wasn't me."

PN3249

MR MURDOCH: No, but - - -

PN3250

THE DEPUTY PRESIDENT: Really it seems, and you can correct me if I'm misreading it, but your apparent conduct and your conduct if proven - and the conduct is yelling those things and there he is on video - so it's surely really it's a fait accompli, isn't it?

PN3251

MR MURDOCH: No, no, no.

PN3252

THE DEPUTY PRESIDENT: That it's proven because he did it.

PN3253

MR MURDOCH: No, it is not because what the letters allege is based upon the footage. As your Honour has seen in the course of this case, numerous witnesses have, in their statements to this Commission - not, can I say, in any response made to the company - made statements to the effect of - and I think Mr Allen is actually an example of this - I was doing what I was doing because contractors were driving past me doing certain things to me. I was reacting.

PN3254

Other people have said, I didn't understand that what I was doing was in breach of the policies. I can't recall being trained on the policies. What training I had was insufficient, et cetera. There are a range of things that employees could potentially say in their defence, which could cause the employer to take an alternative view. Whilst the footage is there, there's a range of mitigating circumstances that it's open to people to present. That's why I take, with respect, issue with the suggestion that it's a fait accompli. If it was a fait accompli, the letters would have been drawn in a far different way.

PN3255

THE DEPUTY PRESIDENT: I understand your submission. Thank you.

PN3256

MR MURDOCH: Returning to the test that the Commission needs to apply in this case, I appreciate, of course, that your Honour has recently written a comprehensive decision in respect of the section and I won't rehearse all of what your Honour said there but a couple of points are very important to note. The first one is that conduct will only contravene section 228 if it is both unfair and/or capricious and - and I emphasise the and - undermines collective bargaining and/or freedom of association. The relevance of that is that if the Commission were to find here that the conduct was not unfair and or capricious, the matter ends at that point.

PN3257

Similarly, if the Commission were to find that the conduct was unfair and/or capricious, but the Commission were not to find that it undermined collective bargaining and/or freedom of association, the matter would also end. The Commission needs to be satisfied of both (indistinct) in order to make a finding against my client.

PN3258

The other point that needs to be made in respect of the test is - and your Honour dealt with this comprehensively - that, in particular the concept of unfair or the concept of capricious, conduct won't be unfair or capricious, with respect, if the Commission considers there might have been an alternative way of going about it or if the Commission considers that something might have been better done in a different way.

PN3259

Conduct will not be unfair and/or capricious even, with respect, if the Commission doesn't agree with the approach that was taken. As the Commission, as currently constituted noted, in Capcoal decision, capricious conduct must be such as to be unaccountable, whimsical, irregular, or unpredictable. Unfair conduct must be not equitable or honest, not impartial, not according to the rules. So it's a reasonably high bar that must be met in order for those findings to be made. In respect of undermining collecting bargaining or freedom of association, the conduct must be such as to injury or damage, by secret or insidious means.

PN3260

Again, it's not enough if the conduct is simply something that gets someone's attention or upsets them in some way. It must actually be such as to undermine collective bargaining or freedom of association and to the extent that it's injured in some practical way. For reasons that I'll come to, the evidence in this case does not support such a finding.

PN3261

Unless your Honour wishes to ask me any questions about the test, could I then move to deal with a number, I suppose, headline points that are made throughout the material?

PN3262

THE DEPUTY PRESIDENT: Did I interrupt you before you'd finished dealing with all of the orders? You'd gotten to C.

PN3263

MR MURDOCH: I'd dealt with them to the extent I wanted to deal with the orally, your Honour.

PN3264

THE DEPUTY PRESIDENT: Thanks. All right, good. Thank you.

PN3265

MR MURDOCH: Yes. The parties in this case are significantly apart in a number of areas, obviously, but one of the primary areas in respect of which the parties are apart is what seems to be the applicant's contention that when someone is taking protected industrial action, that they're somehow covered by a cloak of invisibility or a protective cloak of some description, that prevents an employer from taking any action against them in respect of their conduct.

PN3266

That assertion is wrong for a number of reasons. The first reason it's wrong is as was set out by Binet DP in the Swan Transit case that just because a person is participating in industrial activities doesn't entitle them to some sort of get out of gaol free card and I think, with respect, that's reasonably trite as an industrial principle.

PN3267

Secondly, when one looks at the protected industrial action orders that have been made in this case, there's nothing in those orders that authorises a picket, nor anything in those orders that authorises any of the conduct that has been alleged against any of these employees that are the subject of the investigation letters.

PN3268

Thirdly, it simply is not a correct statement of the law to suggest that just because a person is taking protected industrial action, that the employer has no capacity to regulate their behaviour at all. There's nothing in s 415 of the Fair Work Act that comes even close to that proposition. What is the subject of protection is conduct that is in relation to the protected industrial action. That does not include, when you're on a picket, calling someone a grub or a fucking grub. That doesn't include, plainly, using offensive language on a Facebook page. That doesn't include, plainly, publishing a threatening picture threatening violence against scabs.

PN3269

When a person is taking protected, industrial action, the employment contract is not suspended. The employment relationship is not suspended. All that is suspended and all that is protected are the particular obligations to which the protected industrial action relates.

PN3270

THE DEPUTY PRESIDENT: Yes, I understand.

PN3271

MR MURDOCH: Further to that vein, your Honour would be aware from the long history of industrial authorities to this effect: that moving away from the concept of protected industrial action generally speaking an employer does have the capacity to regulate and take action in respect of conduct that occurs out of the workplace where there is a sufficient connection to the workplace and, in the written submissions in paragraph 18 onwards through to paragraph 24, there's a range of Full Bench and Federal Court authorities that the respondent relies upon to that effect.

PN3272

That issue really also goes to the suggestion that the social media policy is somehow - I don't think it's quite put like this but I think this is the tenor of the submission - that the social media policy is somehow unreasonable as it seeks to regulate conduct that occurs outside of the workplace. The authorities are to the effect the employer can seek to regulate conduct outside of the workplace where there is a sufficient connection to the workplace.

PN3273

Just in respect of the Facebook posts for a moment, the Facebook posts in question here, people aren't being investigated because there's been discussions on Facebook about internal union strategy. They're not being investigated because there's been a discussion on Facebook about the pros and cons of the CFMEU's bargaining position. They're being investigated because comments - highly critical comments have been made on Facebook directed at senior managers at the mine.

PN3274

Now, the Commission may have a view as to ultimately what should be the outcome of that investigation but social media policy is in place. It's consistent with the law. Conduct has come to the attention of the company that it considers is not compliant with the policy and it sought a response.

PN3275

The touchstone for the capacity for an employer - and I've touched on this a moment ago - the touchstone for the capacity of the employer to take action in respect of out of work conduct is, as I've said, there being a connection between that conduct and the workplace. The respondent's case is that clearly, in this case, a relevant connection exists.

PN3276

I've touched on the Facebook. In respect of the picket, it's very plain that the conduct on the picket was being directed towards people who were merely seeking to attend work. Mr Wynn has set out his rationale and his concerns in respect of that conduct in his material and that's referenced in paragraph 26. Mr Dobbie, at paragraph 35 of his statement, refers to complaints that he'd received.

PN3277

I know that my learned friend is highly critical of the veracity of Mr Dobbie's comments in that regard and submits that based upon Mr Dobbie's evidence that Mr Dobbie, in fact, didn't have, at least personally, concerns about the conduct. However, in respect of that, I'd ask the Commission to note that Mr Dobbie's comments at PN1897 about how he felt whilst under cross-examination need to be steadily borne in mind; that the Commission might well infer that Mr Dobbie ought not to be regarded as as phlegmatic as he appeared to be in respect of the conduct.

PN3278

In respect of the workplace policies, it's important to note that each of the letters, and I've taken you to the letter in respect of Mr Allen, but each of the letters is founded upon an alleged breach of a workplace policy. From about paragraph 31 through to paragraph 47 in the written submissions, we've set out references to all of those policies. Again, that goes to, in our respectful submission, the fairness of the approach taken by or the lack of unfairness as well, of the approach taken by the respondent.

PN3279

All of the letters are founded upon alleged breaches of the policies. When your Honour goes - and I invite your Honour, when your Honour retires to consider your decision, to go to each of those polices, they're in the evidence - and your Honour will see that each and every allegation fits comfortably with a provision of a relevant policy and, in my submission, if the allegations were proven, each of the relevant policies that have been referred to are engaged.

PN3280

Your Honour has heard the evidence from Mr Williams. Broadly speaking that evidence is to the effect that the respondent had a firm foundation for believing when the letters were issued that, to a significant degree, the relevant employees had been trained in respect of the relevant policies. So this is not a situation where an employer blindly proceeded to seek to investigate people in respect of conduct that it had a view about but in respect of which, as far as it was concerned, people had never been educated.

PN3281

Further to that end, in light of the clear evidence given by Mr Brodsky and the members of the executive yesterday, there can be no uncertainty that those people who used the word "grub" did not know what they were doing and did not have the clear intent to insult and intimidate the persons crossing the line who they regarded as scabs.

PN3282

I've addressed you on a number of matters which, for reasons that I've stated, would tend to indicate that the conduct that's complained of here is not capricious or unfair. Can I just briefly touch upon, in a summary way, why it is that the respondent contends that its conduct is not unfair? The first point is, and your Honour and I had an interchange about this earlier, that all that's occurred thus far is the making of allegations. Nothing has been decided. People were given the opportunity to respond.

PN3283

Further, as I've stated, the respondent had sufficient evidence just to justify the commencement of the process. As I've taken you to in my earlier submissions, the conduct complained of was capable of being a breach of the relevant policies. Further, the suggestion that people needed to be told that they shouldn't refer to people as a grub is hollow one and ought not be accepted.

PN3284

The next particular matter that I wanted to address you on is this: that as is plain from the letters and as is plain from the evidence of Mr Wynn, the respondent doesn't have an issue with people engaging in picketing conduct. It doesn't have an issue with people engaging in a protest. What it does have an issue with is people engaging in particular conduct that could be regarded, in effect, as besetting and intimidatory.

PN3285

Your Honour will have seen from the video footage, and indeed it's clear from the evidence given by Mr Brodsky and each of the executives, that whilst I think there are some 20 people or perhaps just over 20 people who are the subject of the investigation letters, over time there's been a far broader number of people who were involved in the picket. I think the evidence is that at any given time from when it started up until at least Tuesday this week, there was some 30 to 60 people involved on the picket at any given time. There haven't been letters sent to every single employee of the respondent in respect of them being on the picket or being on a protest. It's only been in respect of particular identified conduct.

PN3286

The next matter that I wanted to particularly address you on was this assertion that some of the conflict between the people on the picket and those entering and exiting the mine, has in fact arisen because the contractors themselves are taunting the people involved in the picket. There are a number of reasons why your Honour ought not accept that proposition as being something that goes to any unfairness or anything in the nature of being capricious by the conduct of the respondent.

PN3287

First, as I've said to you a number of times, in the event that that is the case, people are well entitled to tell the company as much as they wish to tell the company about that in their responses to the investigation letters. Secondly, that self-evidently doesn't ring true in respect of all of the allegations. Simply by way of example, Mr Jarrett, who frankly conceded his engagement with Mr Young. There was no suggestion made that Mr Young was driving past him taunting him. There's no suggestion that when the letters were issued, that either Mr Dobbie or Mr Wynn had any particular knowledge of misbehaviour by contractors. Interestingly, in the response letter that the CFMEU sent on behalf of the employees on 27 July 2017, there's no mention at all on that letter of any misbehaviour by contractors.

PN3288

Whilst Mr Wynn is roundly and soundly criticised for not picking up the phone and calling Mr Brodsky about matters of concern to him, there's no suggestion that Mr Brodsky ever picked up the phone and rang Mr Wynn and said to him, look, these terrible contractors are driving past people on the picket taunting them and upsetting them and causing them to respond and react. The contractors issue simply doesn't in any way sensibly undermine the fairness or the lack of capriciousness in sending the letters.

PN3289

The next matter that I wanted to go to was the suggestion that the material, that there's some sort of double standard being exercised here and I think this is put on a number of bases. One basis upon which it's put is that, well, you know, people always swear around the mine. It's a rough and tumble sort of environment.

PN3290

The first point to be made about that is that it's accepted in the authorities, in our submission, that there's a difference between using swear words or using offensive terms generally and directing those words against particular people, particularly in what the respondent says is an intimidatory way. So people may well say a whole range of swear words around the mine. People may well, when they're - I think as one witness says - performing mechanical work on a vehicle down at the grease and oil, call themselves grubs, but that's a totally and obviously different context to what's occurring here.

PN3291

The second point that needs to be made in respect of that is that whilst the applicant's witnesses put on or seek to put on a range of examples of people using swear words, being abusive, et cetera, at the mine, it's clear from the evidence of Mr Wynn and Mr Dobbie that there have been a range of occasions where, when people have behaved inappropriately, action has been taken. So it's not this situation as it's sought to be suggested, that the company, save for this occasion, simply turns its face in respect of such allegations.

PN3292

Much is, of course, sought to be made from the allegations against Mr Nicholls in respect of what he's said to have said on 26 July last year. Curiously, Mr Wynn, who in his evidence in his supplementary statement says that he was present when Mr Nicholls made those statements and Mr Wynn rejects the proposition that Mr Nicholls used swear words during the relevant interaction.

PN3293

Mr Wynn's evidence in that respect went unchallenged in cross-examination, so you've got a manager of the company under oath who, in my respectful submission your Honour would consider was a conscientious witness who, in all respects, was doing his best to assist the Commission, who has said that Mr Nicholls didn't make the comments alleged and that's gone unchallenged. So, in my respectful submission, notwithstanding that other employees who say he made those comments and who were cross-examined maintain their evidence, the Commission could not be satisfied on the material before it that Mr Nicholls made the statement alleged.

PN3294

In any event, as is clear from the cross-examination of the applicant's witnesses who took unlawful industrial action that day, and as is clear from the order that's attached to the submissions, Mr Nicholls' statements - and this is not said with any concession that he used swear words - Mr Nicholls' statements that day were being made in a very particular context and that being of employees taking, without warning, unlawful industrial action. It's really not a comparable situation at all to that which is before the Commission here, particularly when, as I've said several times, what's occurred here is that an investigation has been commenced and people have been offered a chance to respond.

PN3295

Unless the Commission had any further questions for me, that's all I wished to say in respect of the question of unfair or capricious in respect of the letters.

PN3296

Can I then move to the suggestion that the letters somehow undermine collective bargaining or freedom of association? The letters, both in term and, in the respondent's submission, in effect prevent no one from engaging in bargaining. Bargaining has been ongoing and continues as, with respect, the Commission is well aware.

PN3297

The investigation letters don't effect in terms or, in effect, protected industrial action. The letters, as I've said earlier, relate to particular conduct that the respondent considers to be offensive and intimidating and did not relate in any way to any conduct that constituted protected industrial action. The fact that the impugned conduct occurred when people were taking protected industrial action, or in the context of protected industrial action, does not mean and cannot mean that what is being investigated or what people are being criticised for, is the taking of protected industrial action.

PN3298

Protected industrial action, your Honour, had been occurring for months prior to the letters being sent by hundreds of people. The only people who had been the subject of the letters are people who have been identified as engaging in conduct which the company believes may be in conflict with the policies and whilst this is not an adverse action case, your Honour would be well aware and we've set out the authorities there, that it's well accepted that just because a person is engaging in some form of industrial activity does not, of course, make them immune from being the subject of discipline for inappropriate conduct, including, relevantly, calling people scab and the like.

PN3299

THE DEPUTY PRESIDENT: That's the CFMEU v BHP Coal, the High Court decision.

PN3300

MR MURDOCH: Yes. Yes, and there was an earlier Federal Court decision of Landers J, a different case.

PN3301

THE DEPUTY PRESIDENT: Yes, I understand.

PN3302

MR MURDOCH: Can I then come to the next topic that the applicant seeks to make much of, and that being - and this is my shorthand but I think it's shorthand that I picked up from one of the statements made earlier by the applicant - that the letters, the investigation letters had some form of chilling effect in respect of either bargaining or in respect of people engaging in conduct on the picket and making their feelings known on the picket.

PN3303

The problem for the applicant is that the rhetoric doesn't reflect the reality. You'll recall that I cross-examined each of Mr Brodsky and the members of the lodge executive in respect of the picket and in particular Mr Brodsky in respect of what the picket was designed to achieve and you'll recall that in his cross-examination he spoke about, well, the picket is designed to achieve us having a physical presence, being able to show our solidarity, being able to make our feelings as to Glencore's bargaining position known, et cetera. None of that has been affected by the letters and that's clear from the fact that, as Mr Brodsky and each of the lodge executive members said in unison, the pickets continued to roll on unaffected. People have continued to turn up. They've continued to fly their flags. They've continued to hold up their union produced pre-printed banners and signs in respect of Glencore and its bargaining position.

PN3304

So it is not consistent with the reality at any time since the letters were issued that the letters have had this so‑called chilling effect on their capacity to bargain or to engage in some form of collective action via the conduct of the picket.

PN3305

THE DEPUTY PRESIDENT: Is actual effect required, though?

PN3306

MR MURDOCH: In my respectful submission, actual - well, there's two answers to that. The first question is does it have the capacity to do so, and in my respectful submission, and this is really what I said at the first part of my submissions on this point, when one looks at the letters and the particular conduct to which they're addressed, objectively it doesn't have that capacity, but in any event one can test whether it's got the capacity by what's happened.

PN3307

THE DEPUTY PRESIDENT: Yes, I understand your argument.

PN3308

MR MURDOCH: The written submissions, your Honour, go on to deal further with the use of the word "grub". I'm content to rely upon the written submissions in that respect in addition to what I've said orally. In respect of the timing issue, I addressed you on that at the outset and that's been dealt with in the written submissions at paragraphs 96 through to 100. I don't intend to orally rehearse what's written there.

PN3309

The only additional point that I want to make about the timing is this, that Mr Wynn, who again I would suggest that the Commission would find to be an honest and conscientious witness, he has specifically denied under oath that the ballot had any connection with the timing of the letters. The Commission would have to find that he was being, with respect, plainly dishonest in giving that evidence if the Commission were to find that the timing of the letters was in any way affected by the ballot.

PN3310

In my respectful submission, the Commission doesn't need to even consider that when, for the reasons that I've taken you through, there is a quite satisfactory explanation as to why these letters were issued when they were when one considers the dynamic that was occurring at the time.

PN3311

THE DEPUTY PRESIDENT: But is intent required or is it simply that the timing of things could be likely to have a particular effect, regardless of what the intent was? If intent is not able to be found, is that the end of it?

PN3312

MR MURDOCH: Firstly, it's plainly suggested by the applicant in this case that that's the intent, and in my submission the Commission ought to reject that, and secondly, when one looks at the letters, in my respectful submission - and this goes back to what I said earlier, that just because one might think there was an alternative way to do this, or there was a - and I'm not conceding this, of course, there was a better way to do this, that doesn't make it objectively unfair.

PN3313

THE DEPUTY PRESIDENT: But it doesn't need to be - neither thinks there might have been a better way or an alternative way to do this. There's actually evidence that people within the company were considering that there was an alternative way to do this on or around a date before the ballot and that after the ballot they did it a different way.

PN3314

MR MURDOCH: Your Honour started asking me this in the context of intent.

PN3315

THE DEPUTY PRESIDENT: Yes. Sorry, I'll ‑ ‑ ‑

PN3316

MR MURDOCH: No, I'm happy to deal with it. I'll come back to intent, but I'll deal with what your Honour has just raised. The fact that people in the company were, it would seem, considering an alternative at one point in time really goes squarely to that point that I made a moment ago. There may well have been. There may well be alternative ways that this can be dealt with, but that doesn't mean that objectively the way that was chosen, when one looks at the actual facts relied upon, was unfair.

PN3317

The question is this: why is it unfair where there is a view that conduct has been engaged in which if proven is in breach of company policies - and this is not rhetorical. Why is it unfair in those circumstances to issue letters of investigation, particularly when they were unable to be issued at an earlier point in time?

PN3318

THE DEPUTY PRESIDENT: Yes.

PN3319

MR MURDOCH: Can I then move away from the letters to the two remaining issues that are of contention in this case, that being the surveillance of employees and the matter involving the alleged ban on wearing CFMEU clothing.

PN3320

The evidence in respect of surveillance was primarily given by Mr Solomon and Mr Chesworth. It became, in my submission, overwhelmingly clear in the course of their respective evidence that Mr Solomon, who you will recall had the day‑to‑day carriage of tasking the security people on behalf of the company, he was adamant that he had given no direction in respect of general surveillance around Tieri. So that's from the company's perspective.

PN3321

There was then Mr Chesworth who again, in my submission, the Commission would regard as being a straightforward and honest witness. He was adamant that he had received no general direction to engage in surveillance around Tieri.

PN3322

The best that the applicant was able to come up with in order to suggest otherwise was the fact that Mr Chesworth had made a request on a particular day for addresses of people in circumstances where he and Mr Solomon both said that notwithstanding that request being made the information was never provided. With respect, I don't know what more the respondent's respective witnesses can say than that. A request is made and the information wasn't provided.

PN3323

Then we have this situation where the applicant relies upon - I think it's two particular documents, A49 and A50, and I'll take you to those, because - just bear with me whilst we turn them up. A49 is the request that's made on 24 June. Just your Honour have that?

PN3324

THE DEPUTY PRESIDENT: I'm just turning them up myself, I'm sorry.

PN3325

MR MURDOCH: I'm sorry.

PN3326

THE DEPUTY PRESIDENT: Yes.

PN3327

MR MURDOCH: A49 is the request that was made. This is the request from Mr Chesworth. "Can we please get the addresses for all of the CFMEU members that you have on your files. The reason for this is so we can update our information on our maps of union houses and members."

PN3328

That's the request that's made on 24 June at 7.33 am. You will recall Mr Solomon's frank response in respect of that was that he received that when he was in Buderim, and you will recall that he said he lived at Buderim. So to the extent that he's criticised for not responding to it that day, that's hardly surprising, and then, as he frankly stated, as Mr Chesworth frankly stated, they caught up about the issue and had a meeting about it when he came back and no such information was given. That's at PN2127 to 2128. That's Mr Solomon's evidence.

PN3329

Then the next document that's sought to be relied upon, as I understand it, by the applicant, is A50. You will note that the document is headed Oaky North Daily Log/Occurrence. So what the applicant has tendered is a document that is, it would appear, prepared daily, and you'll note that only one daily log has been tendered - I withdraw that. Only two were tendered. The second one that was tendered was from 26 June.

PN3330

So only two have been tendered, but the only one, as I understand it, that goes in any way to referring to addresses of union members is this one of the 24th, and when one goes to the entry at 1300 it says, "Erin Wheatley collects intel on known addresses of possible union members and starts creation of intel brief." It doesn't say that Ms Wheatley collects addresses of named union members from Michael Solomon, it doesn't say Ms Wheatley collects addresses of known union members from Glencore, it simply says she collects intel, whatever that is, on known addresses. Known to who? It may have been addresses known to Ms Wheatley.

PN3331

That doesn't of itself suggest in any way that the information that Mr Chesworth sought was provided on that day or at all, and given the fact that your Honour has had the sworn evidence before you of both Solomon and Chesworth that the request went nowhere, your Honour could not rely upon these fragments contained in the daily log to find to the contrary.

PN3332

THE DEPUTY PRESIDENT: At the very least doesn't it show that a private investigator who was engaged by the respondent and brought out to the mine site for some purpose or purposes unknown, at least one of the activities that that person was engaging in was collecting intelligence, information, whatever described as, on known addresses of possible union members and had at least started creating a brief about it?

PN3333

MR MURDOCH: That is a very embryonic exercise and it is certainly nowhere near having the names and addresses of all union members, conducting regular drive‑bys and surveilling their homes.

PN3334

THE DEPUTY PRESIDENT: I can only wonder at what on earth it was for. An intel brief on known addresses of possible union members. What was it for?

PN3335

MR MURDOCH: It certainly in its terms wasn't to prepare a list of the names and addresses of all union members. It simply says, "Known addresses of possible union members", and in any event, as I said earlier, the evidence from the company is that the addresses were not provided. The evidence from Ms Wheatley's supervisor Mr Chesworth is that the addresses weren't provided.

PN3336

THE DEPUTY PRESIDENT: Whether they were provided or not, she's a private investigator and she's creating an intel brief and the company's engaged her and arguably they know what she's doing, because I'm assuming they get a look at the log of what people are doing that they have engaged and they get charged for it.

PN3337

MR MURDOCH: The evidence from the company is - and remembering that it's the company that's the respondent to this application.

PN3338

THE DEPUTY PRESIDENT: Yes.

PN3339

MR MURDOCH: Not Ms Wheatley, not the CPA.

PN3340

THE DEPUTY PRESIDENT: No.

PN3341

MR MURDOCH: And it's the company who is being sought to be restrained by the orders sought. The company's evidence is that it did not make a request for general surveillance and it did not provide the addresses.

PN3342

THE DEPUTY PRESIDENT: Okay.

PN3343

MR MURDOCH: So whatever Ms Wheatley may have been doing, or for whatever reason, is not relevant.

PN3344

THE DEPUTY PRESIDENT: Okay.

PN3345

MR MURDOCH: Just excuse me, your Honour, while I check a reference here. Just excuse me, your Honour. Just further, there's one Ms Dann makes that's a very good point. There's another matter before I depart from surveillance that I should address. There's an assertion made at paragraph 25 of the applicant's submissions that the company was attempting to sanitise its financial records so as to not disclose the purpose for which company money was actually expended.

PN3346

THE DEPUTY PRESIDENT: There was an explanation about there's a spreadsheet that collates with the invoice.

PN3347

MR MURDOCH: Exactly.

PN3348

THE DEPUTY PRESIDENT: So you have to take the two together. Yes, I understand.

PN3349

MR MURDOCH: That's another example of the overreach that I referred to at the outset of my oral submissions.

PN3350

Can I then move to the asserted issue in respect of the clothing. There seems to be two points sought to be made in regards to the clothing. The first point seems to be that there's some form of broad-based general ban on the wearing of clothing, and that's certainly what's sought to be addressed, it would seem by the orders sought. The second thing is that it's sought to be alleged, it would seem, that the sending of the workers away by Mr Wynn was some form of reprisal because someone turned up wearing CFMEU clothing.

PN3351

The evidence in respect of each of those matters doesn't support either of those allegations. It's plain, in my respectful submission, from Mr Wynn's evidence, that his concern in respect of clothing was people wearing back into the mine the clothing that was prominent on the picket. When one looks at the video footage it's plain that the clothing that's prominent on the picket is - and I've forgotten the exhibit number, but the - 41, exhibit 41, the long‑sleeved version of the CFMEU T‑shirt.

PN3352

It's also apparent from the evidence that he also prevented the wearing in the mine of another item of clothing, that being the yellow‑sleeved fluoro jacket. So the evidence is that there was only a proscription on two particular items, and noting that the fluoro type clothing was the prominent clothing on the picket, it's quite consistent with the evidence that he gives about concern about people wearing the prominent clothing on the picket back into the mine for him to proscribe the wearing of such clothing for those reasons.

PN3353

THE DEPUTY PRESIDENT: Well ‑ ‑ ‑

PN3354

MR MURDOCH: He didn't - sorry.

PN3355

THE DEPUTY PRESIDENT: Sorry.

PN3356

MR MURDOCH: He did not - and the evidence from the witnesses of the applicant is to this effect. He did not proscribe the wearing of other union clothing into the mine. It was only those particular examples. So any suggestion that there was some general prohibition on the wearing of CFMEU clothing in the mine is inconsistent with Mr Wynn's evidence and also with the evidence given by the relevant employees.

PN3357

THE DEPUTY PRESIDENT: Was there some evidence of consideration being given to a draft policy about what could or couldn't be worn and that it was going to be company polo shirts?

PN3358

MR MURDOCH: There is evidence in Mr Wynn's affidavit of a consideration of a draft policy. It is not suggested that policy has been implemented. It's simply something that is under consideration and there is no suggestion that that policy was in place at the relevant time.

PN3359

THE DEPUTY PRESIDENT: Okay.

PN3360

MR MURDOCH: And the facts of the matter bear out that the policy wasn't in place at the relevant time, because people wore ‑ ‑ ‑

PN3361

THE DEPUTY PRESIDENT: What they liked.

PN3362

MR MURDOCH: That's right, and weren't criticised for it. The second point to be made is that it's suggested that there was some sort of reprisal for people wearing union clothing. The evidence of the respective witnesses who were there on that day is that they were told that they were surplus to requirements but they were told they were surplus to requirements in circumstances where it was only a smattering of the number who had the impugned clothing on.

PN3363

So it simply doesn't stack up that Mr Wynn turned them all away for wearing impugned clothing, because they weren't all wearing impugned clothing, and further, to my recall, and I'm sorry, I don't have the reference at hand, but it wasn't seriously pressed by any of the applicant's witnesses that they thought that they were turned away because of the clothing issue.

PN3364

THE DEPUTY PRESIDENT: And Mr Wynn's evidence, was it not, was that because of the late notice of withdrawal of the protected action that had been notified for the day he'd already filled the crew.

PN3365

MR MURDOCH: They'd made plans, because of course they had to.

PN3366

THE DEPUTY PRESIDENT: Yes, I understand.

PN3367

MR MURDOCH: So can I then just, in summary, go back to the orders that are sought. The respondent's position is that the Commission ought not to make any of the orders that are sought and that what should occur is that the investigation ought to be allowed to run its course, taking into account any response the employees wish to make. To the extent that any of the employees have a mitigating circumstances or an explanation that they wish to give, that can be made. There's been no suggestion that that would not be considered by the company at any time.

PN3368

So if the Commission accepts that there should be no orders made in respect of subparagraphs 1(c), 1(d) and 1(e), and of course you only get to that point, with respect, your Honour, if you found that there was a contravention or otherwise of section 228.

PN3369

In respect of the clothing order sought, there's no utility in making that order, because there is no direction in place that proscribes generally the wearing of union clothing. Similarly, in respect of the surveillance order there is no general surveillance occurring across the township of Tieri, so again there's no utility in making that order.

PN3370

The further point that I touched upon earlier is that it would be very difficult, with respect, for the Commission to fashion an order in respect of surveillance, because if the order that is sought by the applicant were made it would have the effect that the respondent would be prevented from doing that which it is perfectly entitled to do in appropriate circumstances.

PN3371

It would have the effect that regardless - and I'm not making any suggestion that this is the case, but if it were the case, regardless of any threat to safety, regardless of any threat to property, regardless to any intimidation or harassment that might occur in the township of Tieri, the respondent would be powerless to record or surveil in any way. So in my respectful submission, even if it found a contravention of 228 in respect of surveillance, the Commission would need to be very cautious about making the form of ongoing, open order in respect of surveillance that's being sought by the applicant. Just excuse me a moment, your Honour.

PN3372

Just one final point that I wish to make; again, I'm very helpfully reminded of this, is that your Honour is invited by the applicant to draw an inference that the failure to call Mr Nicholls and Ms Cody could not have assisted Oaky Creek Coal in respect of any of the factual matters in issue. That's a contention made by the applicant.

PN3373

The respondent's response to that is that in respect of Mr Nicholls, and insofar as the conduct alleged against him on 26 July is concerned, Mr Wynn was there. He's given evidence as to what he says occurred. So there's no need, in that circumstance, to call Mr Nicholls. That issue has been responded to by a person who was present by the company.

PN3374

In respect of Ms Cody, it's plain from the statement of Mr Wynn, and the references are in the written outline, as to the role that he played and the directions that he gave and why in respect of the letters. So when the manager is giving evidence on the topic, with respect, there's no need to call the HR person to explain it. It's been dealt with.

PN3375

Unless there's anything else in particular that your Honour would seek that I address you on, they're the oral submissions.

PN3376

THE DEPUTY PRESIDENT: No, thanks, Mr Murdoch. Do you have anything in reply, Mr Reitano?

PN3377

MR REITANO: I think about 10 points, and I can deal with them all very quickly.

PN3378

THE DEPUTY PRESIDENT: Yes.

PN3379

MR REITANO: And I'll just deal with them numerically. The first matter is this. You would be very careful to have regard to the case that we pressed in dealing with my learned friend's submissions. In many respects his submissions don't meet aspects of our case.

PN3380

In this regard, one thing that I think is starkly illustrated by the opening part of his submissions is that one of the big unfairnesses we rely on in what's going on, and it was confirmed by his submissions, is dealt with at paragraph 67 of our written submissions, that what is sought to be done - and apparently unashamedly, what is sought to be done in pursuing this disciplinary process is to visit upon each of the people who are alleged or who admit saying the word "grub", "fucking grub" or "maggot" everything else that happened on the CFMEU picket line, and he made that very clear.

PN3381

He went through a whole series of "conducts" to do with what was going on on the picket line, and the suggestion was that what these people were subject to the disciplinary process for was all of that, not just saying the words "grub", "fucking grub" ‑ ‑ ‑

PN3382

THE DEPUTY PRESIDENT: I didn't understand the submission - and I think it was Mr Wynn whose evidence was to the contrary, who said, "I'm not alleging that the misconduct involved standing beside people who were not our employees and", I don't know, "acquiescing in what they did."

PN3383

MR REITANO: Indeed.

PN3384

THE DEPUTY PRESIDENT: So that was the - and I didn't understand Mr Murdoch's submission to be to that effect.

PN3385

MR REITANO: If that was not Mr Murdoch's submission then you don't need to deal with what I've said. If it was Mr Murdoch's submission, that's what I want to say about it.

PN3386

THE DEPUTY PRESIDENT: All right, yes, but Mr Wynn's evidence ‑ ‑ ‑

PN3387

MR REITANO: I obviously understood it differently.

PN3388

THE DEPUTY PRESIDENT: Yes. I think Mr Wynn's evidence was quite clear when he said, "I am not even a bit interested in what Mr Smythe or Mr Brodsky or the ‑ ‑ ‑"

PN3389

MR REITANO: Or anyone else.

PN3390

THE DEPUTY PRESIDENT: "Or the visitors from interstate or Logan or wherever they came from did."

PN3391

MR REITANO: Yes.

PN3392

THE DEPUTY PRESIDENT: "Or if I am, I'm not dealing with it in a disciplinary context."

PN3393

MR REITANO: Secondly - and as I say, some of these are very short Points. Secondly, I made the point in my submissions in chief - I don't know if it was ever dealt with, but I made the point that no one - no one, there's no evidence from anyone and there's no even hearsay evidence from anyone - was harassed, offended, intimidated, humiliated, concerned, angry, upset, cried or anything as a result of the saying of these words. There's just nothing.

PN3394

Indeed, it's all consistent with Mr Dobbie's evidence. In a coal mine this sort of stuff happens. I think I put the proposition to Mr Dobbie and he embraced it, sticks and stones. He didn't consider this to be of any moment at all in the witness box.

PN3395

I have to say, it's regrettable that Mr Dobbie felt that he was in some way harrowed by the experience of answering my questions, but on a scale of zero to 10 he got about a .5 in terms of any harrowing. I mean, he was simply asked questions and answered them. Mr Solomon obviously got a more difficult time, as did others, but Mr Dobbie was very frank about his answers and was very cooperative and was conversational in his tone in terms of answers, and the reason why was because he called it as he saw it. "Calling someone a grub in a coal mine. You're kidding." That's really what his evidence amounted to.

PN3396

You don't see in particular Jimmy get in the witness box, Mr Young, and give any evidence about him being offended. This whole invention of people being offended just doesn't appear. It's a fantasy in terms of the evidence. There's just not one scintilla of a suggestion in terms of an evidentiary suggestion that that was what occurred.

PN3397

Thirdly, can I deal with the question of - I think it's exhibit A49 and A50, and in very many respects the submission is perhaps the less said the better about what's been said about it.

PN3398

It's obvious, it's blatantly obvious. No matter what people swore in the witness box, it's blatantly obvious, and you put it in argument with my friend, that Erin Wheatley for some reason; I'm sure she wasn't doing it just to pass the time of day, thought it was necessary to collect intel on known addresses of possible union members and start creation of a brief, in circumstances where, just purely coincidental, according to my learned friend, at 7.30 the same day that information was being asked for to update maps - update maps, in A49, of union members. It just defies common sense, and as I said, in very many respects the less said the better. It is obvious what was going on and Blind Freddy could see it.

PN3399

Next, my learned friend says that you have to apply - there are two aspects to this. The first thing is the question of fairness. What fairness demanded here at the very minimum - at the very minimum, in order for them to be able to claim the high moral ground in terms of fairness, a concept that this Commission well knows about, at the minimum, underlined, highlighted, bold, neon, was a phone call to Mr Brodsky, and I'll say it again; this is probably the fourth time in two days, "Hey, Brodo. Look, I'm concerned about people being called grubs on the picket line. Can we sort this out?"

PN3400

If there was anything wrong with what they were doing - if there was anything wrong with what they were doing in calling people grubs, then you would have cause to complain, once you raised the fact that you had a concern, and as you pointed out, before the ballot closed someone was considering doing by way of letter exactly that. Someone as high as Mr Nicholls, if I recall, and Mr Cribb, as I recall it. In communications between them that is exactly what the company was considering doing.

PN3401

To adopt another approach or a different approach that didn't involve giving some indication about what you consider appropriate or what you consider offensive or what you consider should happen on the picket line is unfair. It just goes without saying that if what you are doing in those circumstances, in the particular circumstances where you intend to discipline someone, it is just unfair.

PN3402

The second aspect of this - and I don't cavil with the definition that you've recorded in your decision in Anglo Coal about undermine, but another way of putting - and it's the word "insidious" that creates the problem. Another definition that one finds in the dictionary, and there are quite a few, about undermining is "lessen the effectiveness of gradually". The same thing, probably. The word "insidious" generally might suggest some secretiveness, perhaps, but that's exactly what was happening here, undermining the effectiveness of the CFMEU to bargain and undermine the effectiveness of the rights of people to associate freely.

PN3403

My friend says, "So what? They still had meetings. They were still able to meet, they were still able to bargain, that were still able to do all these things. Even though the letters went out we didn't stop that." It's the effectiveness of it that is the concern. People should be, under the regime set out by the Act, free of unfair conduct that affects their will and their desire to enter into agreements.

PN3404

I took you to two of the examples in my submissions in chief where people said, "I got this letter and all I wanted to do was end the bargaining", and that's what the problem is in terms of this conduct, that it creates in people a desire to not collective bargain, not be engaged in the process, to just agree. It impairs their free will.

PN3405

Next, the suggestion that Brodsky did the wrong thing because he didn't ring the company when contractors were driving backwards and forwards, provoking the type of conduct, engaging in the type of conduct that was going on, is, with respect, silly. Brodsky was entitled to believe, as everyone did, because the company never said anything, that the company thought that that conduct was all appropriate.

PN3406

Brodsky had no concerns about it. It was the company that ultimately kept secret from everyone that it had concerns about it. There was no reason for Brodsky to ring anyone. He was led to believe by what was happening, because no one had suggested otherwise, that the company condoned the conduct of the contractors and others.

PN3407

Can I say, much has been made of the fact that there was no challenge to Mr Wynn's evidence. Four people gave evidence that they heard Mr Nicholls say the word "cunts". Obviously, on a generous view, challenge or no challenge, Mr Wynn didn't hear that, but it doesn't mean it wasn't said. Four people gave evidence that they heard him say the word "cunts" or "cunt". In any event, irrespective of that, you've got Mr Dobbie's evidence that far worse goes on in the mine in terms of offensive language and offensive behaviour than calling people grubs.

PN3408

The penultimate matter is, and I repeat it again, you didn't need to have a conversation about union clothing and about people coming into the site with jumpers or anything else on in circumstances where you were going to send them away because they were surplus. Once they turned up, if they were legitimately surplus and if the shift had been packed in, if that was the reality of the situation, why were you talking about union clothing? "You're not coming in wearing that." Why do you need to say that?

PN3409

The only other two matters that I want to raise are machinery matters, and they are this. Could we have leave to send you corrected written submissions that is numerical - it's already been done so I need to - and secondly, could we have your permission to send you a list of authorities with hyperlinks to the authorities that we've referred to?

PN3410

THE DEPUTY PRESIDENT: Yes.

PN3411

MR REITANO: I am specifically instructed to thank the Commission for sitting in Emerald. We know what a huge imposition it is, and on behalf of my clients, they're very grateful for the Commission's indulgence in that respect.

PN3412

THE DEPUTY PRESIDENT: Thank you.

PN3413

MR MURDOCH: Would your Honour's preference in respect of my client's authorities to be hyperlinked or would your Honour prefer them to be provided ‑ ‑ ‑

PN3414

THE DEPUTY PRESIDENT: I don't mind.

PN3415

MR MURDOCH: Otherwise ‑ ‑ ‑

PN3416

THE DEPUTY PRESIDENT: I prefer - I'm really old‑fashioned. I like the, you know, non‑Internet variety, but if that's what's available then ‑ ‑ ‑

PN3417

MR MURDOCH: I think I understand that to be hard copy.

PN3418

THE DEPUTY PRESIDENT: Yes, and preferably the actual ‑ ‑ ‑

PN3419

MR MURDOCH: Yes. I'm with your Honour. We'll provide them in hard copy.

PN3420

THE DEPUTY PRESIDENT: Anyway, however is most convenient to provide them, and can I also thank counsel for both parties for the manner in which you've conducted the case. Certainly it's been completed well within the time allowed, and I really didn't expect that it would, having seen the written materials, so I thank you both for the professionalism with which the matter has been conducted. On that basis I will adjourn and I will release my decision in due course. I will endeavour to release it as soon as possible. Thank you.

ADJOURNED INDEFINITELY [12.27 PM]

Fair Work Commission Transcripts

B2017/640, Transcript of Proceedings [2017] FWCTrans 387 (12 September 2017)