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C2002/ 923 , Transcript of Proceedings [2002] AIRCTrans 847 (15 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N VT0 2784
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2002/ 923 
C2002/1167
C2002/1204

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Campbells Australasia Pty Limited for an
order to stop or prevent industrial action

Application under section 127(2) of the Act
by Automotive, Food, Metals, Engineering
Printing and Kindred Industries Union concerning
the alleged stand down of employees who had
been injured at work and who had returned to
work on medical restrictions

CAMPBELLS AUSTRALASIA PTY LTD

and

AMALGAMATED METAL WORKERS UNION

Notification pursuant to section 99 of the Act
of an industrial dispute

SHEPPARTON

11.01 AM, FRIDAY, 1 MARCH 2002

Continued from 28.2.02

PN2382

THE COMMISSIONER: Yes. Mr McKenney, would you like to report back from the conference, thank you?

PN2383

MR McKENNEY: If the Commission pleases, the Commission has conducted conferences again this morning with the parties, both together and separately. There has been - there were some earlier discussions between the parties this morning, prior to the commencement of proceedings, in the hope that a resolution might be able to achieved. Unfortunately, Commissioner, there doesn't seem to be any prospect, at this point in time, that a resolution will be achieved.

PN2384

THE COMMISSIONER: Yes, right. Mr Hale?

PN2385

MR HALE: Well, that is correct, Commissioner.

PN2386

THE COMMISSIONER: I will just lean to you for concurrence.

PN2387

MR HALE: Yes, yes.

PN2388

THE COMMISSIONER: Yes. Look, unfortunately then I am going to need to ask each of you to - I regret that you have not been able to reach settlement. I believe it was in the interests of the company and the employees that you should be able to reach a negotiated settlement. You haven't been able to. And given that we have a limited time available to us today what I would like to do is to ask Mr McKenney and Mr Hale to each give me brief addresses in regard to the seeking of any interim orders or recommendations that you believe appropriate in respect of each of your section 127 applications.

PN2389

We don't have time for evidence to be led, any further evidence to be led. But I do have - I have heard ample evidence from both parties. I have heard a fairly full airing of the issues and so once I have heard your addresses hopefully I should be in a position to - to make a decision. What I propose to do is after hearing your addresses I will adjourn the proceedings and will consider what orders or recommendations - I emphasise, interim orders or interim recommendations I might wish to issue and I will issue them here in Shepparton before lunchtime today and they will be available from the Court counter - I think is the best thing that I can do in the circumstances.

PN2390

I think - I am not in a position to talk to you about dates because I need - I don't know what the availability is of this courtroom and we will have to come back to Shepparton because we haven't heard from the eight employees whose affidavits Mr Hale has - draft affidavits, witness statements, that Mr Hale has provided me with. And so I will need to find out what dates and my associate will be back in touch with you about - about dates. And the section 99 application, yet again my associate will be back in touch about a time. And I think the section 99 - there will be a discussion with you about whether the section 99 should be heard in Melbourne, as I think it probably should, or here in Shepparton.

PN2391

So, I think that is the best program that I can put forward given the fact that we have spent two hours this morning trying to reach a settlement, haven't been able to do so. Mr McKenney, I will ask you to address me first and then I will ask Mr Hale to address me on behalf of the unions.

PN2392

MR McKENNEY: Commissioner, could I hand you up a draft order.

PN2393

THE COMMISSIONER: In addressing me, I should say you are addressing me in regard to your - the company's application.

PN2394

MR McKENNEY: Yes.

PN2395

THE COMMISSIONER: I will need to provide you with some right of reply to Mr Hale who will be addressing me both - addressing and reply to whatever you say and addressing me on the principal issue of the company's - the union's application section 127 order.

PN2396

MR McKENNEY: And I take it then that I would then reply to what Mr Hales says about his interpretation.

PN2397

THE COMMISSIONER: Yes, yes. Reasonably briefly.

PN2398

MR McKENNEY: Yes.

PN2399

THE COMMISSIONER: Yes, thank you. Yes, Mr McKenney?

PN2400

MR McKENNEY: Commissioner, in relation to our section 127 application the Commission has been addressed previously on the nature of the discretionary power the Commission has to issue such orders. In view of the time, Commissioner, I won't go into that in any great detail but you will be aware from what has been previously submitted, Commissioner, that the power of the Commission is a discretionary one. It has got to have regard to the objects of the Act. And in the cases that have been referred to previously, Commissioner, there is a need to consider whether industrial action should be the subject of an order.

PN2401

Now, Commissioner, the decision that no doubt you are familiar with, Commissioner, is the Coal and Allied Operations v AFMEPKIU which is reported at 73 Industrial Reports 311, which in a sitting of the Full Bench of the Commission - and I just refer briefly to page 327 of that report, I have got a copy here, Commissioner, if it is of assistance to you.

PN2402

THE COMMISSIONER: Yes, thank you. Thank you.

PN2403

MR McKENNEY: At page 327 of that report at the final paragraph, the Full Bench states that:

PN2404

The exercise of such discretion requires that the Commission be satisfied that is ...(reads)... that it should attract appropriate a direction by the Commission that it cease and not occur.

PN2405

And I don't read the rest of the paragraph. It is our submission, Commissioner, that the industrial action has been illegitimate. The illegitimacy stems from a number of factors. It stems from the fact that it is not clearly in a category of action that could be considered protected industrial action. There is an industrial agreement in place, a certified agreement that the Commission is aware of. There is a prohibition in the Act, which is section 170MN of the Act, which prohibits industrial action during the life of the agreement.

PN2406

And the reason - and the more powerful reason it now presents itself to the Commission, in our submission, is because of the efforts the Commission itself has made to stop the industrial action on more than one occasion. And that of course goes, Commissioner, to the recommendations that have been issued both on 7 February and 20 February. And, Commissioner, I want to refer briefly to the - - -

PN2407

THE COMMISSIONER: Can I just be clear - there were stoppages on 19 February, 20 February and 21 February were there not, Mr McKenney?

PN2408

MR McKENNEY: Yes. And I will give you a transcript reference of the proceedings before Deputy President Hamilton, Commissioner.

PN2409

THE COMMISSIONER: Yes,

PN2410

MR McKENNEY: At paragraph 48 - - -

PN2411

THE COMMISSIONER: Yes.

PN2412

MR McKENNEY: - - - I indicated at that time that there had been defiance of the recommendation since 20 February on several occasions:

PN2413

On the evening of 20 February at 10.00 pm there was a half hour stoppage, between 3.00 am and 3.30 am on Thursday, 21 February there was a stoppage, and there was one yesterday afternoon -

PN2414

which would have been, 21 February -

PN2415

between 2.30 and 3.00 pm and 3.30 and 4.10 pm.

PN2416

So that was outlined there, Commissioner, so it is clear in our view that the recommendations that the Commissioner has currently constituted, issued on 20 February, were deliberately defied which adds to the weight of why the Commission should exercise its discretion. Its attempts to have the union parties to this application conduct itself in such a way that it would not impose damage on the company and take industrial action have been ignored and ignored on several occasions. And the recommendations that the Commission issued on 20 February were very clear, that any work stoppages at the Campbell's plant terminate immediately. That simply did not occur.

PN2417

Now, Commissioner, in addition to that there is evidence before the Commission from Mr Pearce, is witness statement is Exhibit A7. And I won't take you to the detail of that, Commissioner, because it is before the Commission. But he, in his evidence - which we would submit wasn't disputed in any real sense - that the recommendations that were sent by Campbells after they were issued on 20 February were provided to Mr Pearce. They were circulated around the plant. He had discussions with relevant union officials, or a union official. Those recommendations had been brought specifically to their attention yet the industrial action still occurred.

PN2418

We also have, Commissioner, the evidence of Mr Case, which is Exhibit A8, and he also in some detail on that statement - I won't take you to the detail now, Commissioner - outlines the course of events in relation to the industrial action that has occurred over a period of time.

PN2419

THE COMMISSIONER: Yes.

PN2420

MR McKENNEY: And there is also before you, Commissioner, Exhibit A9 which details the losses that have been incurred by the company to date.

PN2421

THE COMMISSIONER: Yes.

PN2422

MR McKENNEY: What is of importance, Commissioner, too, in this matter is that there has been efforts made by Campbells on a number of occasions to seek insurances about the industrial action not occurring. Those assurances have never been given, despite the fact that Campbells have continued through a negotiation process with the union over a considerable period of time in this matter. And Mr Casey gave evidence that in his view that there is prospect of further industrial action occurring. And you have to say objectively, Commissioner, that even despite the Commission's efforts to ensure that doesn't occur, that there is prospect that the industrial action will occur again.

PN2423

And that in our view, Commissioner, is sufficient for the Commission to make orders on an interim basis. And it is important, Commissioner, to have regard to some of the authorities in this area as to what the relevant considerations are and the exercise of the discretion. You have been - you have had referred to you before, Commissioner, comments made by Vice President Ross in the Patricks matter and I might just hand you a copy of that decision as well, Commissioner, I will refer to it briefly.

PN2424

THE COMMISSIONER: Thank you.

PN2425

MR McKENNEY: This is Patrick Stevedores v Maritime Union of Australia. It is recorded '79 Industrial Reports 239 at 246. And his Honour, the Vice President, deals with the way in which the discretion should be exercised and the relevant considerations in that regard. And going to page 240 - all those matters are set out at page 247, Commissioner. We say they are relevant matters to have regard to. The Vice President looks at this issue of illegitimacy, because that is what the Full Bench said in the Coal and Allied decision, and the Commission - he indicates that the Commission should have regard to the following factors - the conduct of the parties.

PN2426

Well, there is a very strong case to be put here, Commissioner, that the conduct of the union parties has not been conducive to the resolution of this matter and primarily that is because - because the efforts made by the Commission to assist the parties on a number of occasions through conciliation have been ignored, that the unions have reserved rights to itself to take industrial action where it sees fit. And that has gone on and continued for a period of time. And as the Vice President says, at about two-thirds down the page:

PN2427

Actions that may have provoked or exacerbated the industrial action may be relevant with a determination of whether or not that action is illegitimate.

PN2428

THE COMMISSIONER: Which page are you looking at?

PN2429

MR McKENNEY: Page 247, Commissioner, under (i).

PN2430

THE COMMISSIONER: Yes - okay, sorry. Yes.

PN2431

MR McKENNEY: And we think that the difficulty of trying to resolve what your Honour has heard, what your Commission has heard on a number of occasions now, that the underlying issues in this dispute - the difficulty of trying to resolve those matters has been partly because of the ongoing threat of the industrial action. And that raises the issue of the compliance with the dispute's procedure, which the Vice President deals with under (ii) at page 247. And you have heard submissions previously about this, Commissioner, but it is important - in our submission - to remind the Commission that the recommendations issued on two occasions, both on 7 February and 20 February, where it refers specifically to clause 10 of the Campbell Soups Enterprise Agreement:

PN2432

...and that work shall continue pending determination of any dispute or agreements.

PN2433

Now, no matter what view might be taken about the width or breadth of that - the meaning of those words, Commissioner, it is clear in our submission that work shall continue - it means "work" at least includes work performed by employees. And that, in our submission, is incontrovertible. And the recommendations are - refer to those matters on two occasions and we say that the reference made by the Vice President of Patricks decision is also relevant in this regard. I mentioned at the outset, Commissioner, the objects of the Act. The Vice President deals with those issues at 248 and in the context of the dispute procedure refers to section 3E of the Act which states that one of the objects is to ensure that parties abide by awards and agreements applying to them. And that is towards the top of the page.

PN2434

So, those factors, Commissioner, weigh heavily in our submission as to why the Commission should grant an order in this case. And just on our list of authorities there is a reference to a decision of Commissioner Gay in the Linfox Transport matter, which is print R7203, 14 July 1999, and I refer briefly to that if I may. This is an internet copied print, Commissioner. It is a decision of Commissioner Gay on 14 July 1999 and one of the factors that the Commission had regard to in relation to this section 127 application was at the bottom of page 12, that the Commission paid regard to the fact that the TWU in that case had not acted in consonance with the disputes procedure in the awards or agreements affecting the work and, further, the action was not protected.

PN2435

And we say that is a relevant factor and applies in this case, those two matters are what are presented here, Commissioner. Now, other relevant material, Commissioner, relates to the ground of our application and I note that when Mr Hale comes to address his application, one of the grounds of his application is in relation to section 170MM. I think you have already been referred to this on a previous occasion, Commissioner, but in the - in the matter of the CEPU v AG Fire Protection, which is a decision of the Full Bench of this Commission on 17 June 1998, it is reported at 87 Industrial Reports 110, ..... 115 makes it clear that the fact that injunctive relief might be available to the party under section 170MN of the Act, doesn't mean that - or doesn't preclude the Commission from exercising their discretion to make an order under section 127 of the Act, Commissioner.

PN2436

THE COMMISSIONER: Well, in any event, Mr McKenney, I am only looking in both these matters today at what - whether I should put in place any interim orders or recommendations pending both my capacity to read all the transcripts - including the transcript of the last few days here in Shepparton - and any further evidence including the evidence of Mr Hale's witnesses.

PN2437

MR McKENNEY: Yes. And, Commissioner, I think one of - I am trying to be as brief as possible given the time constraints, Commissioner.

PN2438

THE COMMISSIONER: Yes.

PN2439

MR McKENNEY: One of the key issues that I should think should weigh on the Commission in the light of this matter is that the Commission and the parties have been working out a process, or endeavouring to work out a process, and what has been referred to by us as the underlying issues in dispute remain unresolved. And we have sought to have those matters dealt with through a section 99 notification, which is currently a matter before this Commission. And what we say, Commissioner, is that our intentions are clear in that, that if we can't resolve underlying issues in dispute - issues of principle, we say - we know that this problem will continue from time-to-time.

PN2440

And we say that if that - if the process of consultation with the union about rehabilitation policies and all those matters are going to have any chance of being productive or conducted sensibly, as far as the consultation process is concerned, Campbell's needs an order at least on an interim basis that industrial action will not occur. Because that will facilitate, in our view, an orderly process that the Commission is aware of that we endeavour to put in place to try and resolve the underlying issues. So that is a very important factor, Commissioner, in terms of the Commission's functions, overriding functions to try an - as well as settling industrials - to prevent further industrial disputation given the willingness of Campbells to consult over what an appropriate rehabilitation policy is and hopefully reach some resolution. And consistent with the Commission's obligations we say that the chances of preventing further industrial disputation through work stoppages and the like will be enhanced by the issuing of an order.

PN2441

And it is important to note, Commissioner, that if an interim order is issued it is issued on that basis. It is issued on the basis that it doesn't affect the ultimate right of the union parties to argue about the appropriateness of the final orders that might be made or not made. So it doesn't - it doesn't pre-empt, as it were, what the Commission may do ultimately.

PN2442

THE COMMISSIONER: Yes.

PN2443

MR McKENNEY: But in our submission, it is appropriate for it to be put in place now so that the process, the orderly process, can actually occur, that we have outlined. Commissioner, the other - the other issues about - I am happy to deal with issues about the order if that is of assistance to you.

PN2444

THE COMMISSIONER: No, I am afraid in the timeframe available you are going to have to leave it to me to look at what you have put forward and consider what I - - -

PN2445

MR McKENNEY: Yes. I just want - - -

PN2446

THE COMMISSIONER: - - - what, if anything, I consider might be appropriate.

PN2447

MR McKENNEY: Yes. I note that the Commission - I think on the first occasion - has raised an issue about the identification of the parties to an order.

PN2448

THE COMMISSIONER: Yes, yes.

PN2449

MR McKENNEY: And I - - -

PN2450

THE COMMISSIONER: Yes, I am assuming you had addressed all that in the revised order you have just given to me.

PN2451

MR McKENNEY: Yes, just one issue I think the Commission raised, from memory, Commissioner - - -

PN2452

THE COMMISSIONER: Yes.

PN2453

MR McKENNEY: - - - was in relation to the persons bound by the order. In the BHP Steel case, and the CFMEU, which is a decision of the Federal Court - - -

PN2454

THE COMMISSIONER: Yes.

PN2455

MR McKENNEY: - - - Beaumont J had cause to consider the issue about identification of the persons bound. And this is a decision recorded at 102 Industrial Reports 275. The relevant extract is at 287.

PN2456

THE COMMISSIONER: Yes.

PN2457

MR McKENNEY: Beaumont J - this is at line 36, paragraph 36 I think it is:

PN2458

In my opinion there was no need to identify the persons bound by their names. As noted, section 127(5) ...(reads)... bound must be named individually in the order.

PN2459

So the order that we have presented to you, Commissioner, identifies the relevant unions, it identifies members of the unions who are covered by the terms of the certified agreement. We say that is sufficient class of identity. The terms of the industrial action that we seek to have stopped under an interim order, Commissioner, relates to Campbells sites. So we have specified what that is and we say that is consistent with the recommendations, the terms of the recommendations previously issued by the Commission.

PN2460

THE COMMISSIONER: Yes. But is there any need for it to refer to anything other than the sites in Shepparton?

PN2461

MR McKENNEY: Probably not, Commissioner, not at this stage, no. I think - I will just put one the Commission might have to regard to is the decision of - a recent decision of Deputy President Hamilton, in fact, which is a section 127 order which was issued on 22 February of this year, and it is Print PRN914397.

PN2462

THE COMMISSIONER: Yes.

PN2463

MR McKENNEY: I just want to refer, as far as the form of the orders is concerned, Commissioner, to what the Deputy President said at paragraph 45, which is at page 8 of 9 of the print. To deal with this issue, the scope of the order, the Deputy President had regard to the observations of Beaumont J in the case I have just referred the Commission to.

PN2464

THE COMMISSIONER: Yes.

PN2465

MR McKENNEY: So, Commissioner, the - just in conclusion, the importance of granting interim orders is because the parties have made some progress on how it is that they would endeavour to deal with the underlying issues in the dispute. That is still the willingness of Campbells to do that and the Commission has already assisted the parties in conciliation. Campbells is willing to continue a consultation process about these matters. But our genuine fear, Commissioner, is that that process will be derailed if industrial action occurs. And I have already referred, Commissioner, to the evidence you have before you about the way in which the unions have responded to recommendations of the Commission.

PN2466

And I have also put in front of you really what the economic imperatives are. And you have heard evidence about the importance, at this time of year, Commissioner, as far as production is concerned, which is also a relevant factor. Excuse me one moment. Now, Commissioner, you have raised at one point, the decision in Emwest.

[11.30am]

PN2467

THE COMMISSIONER: Yes.

PN2468

MR McKENNEY: I am not sure if you wanted me to address that in this context.

PN2469

THE COMMISSIONER: I think not unless it is necessary to do with any matter raised by Mr Hale because whatever I am going to do today is really going to be done on an interim basis pending a final resolution of the matter.

PN2470

MR McKENNEY: And I could just indicate for the information of the Commission that that matter is now subject to appeal.

PN2471

THE COMMISSIONER: Yes.

PN2472

MR McKENNEY: If the Commission pleases.

PN2473

THE COMMISSIONER: Thank you very much. Yes, Mr Hale.

PN2474

MR HALE: Yes, Commissioner, as you are aware I am in fact representing three unions in this matter; the AMWU, the CEPU and the CFMEU. Now the company has seen to deal with the unions as a class rather than the individual unions in relation to this. Now I haven't heard any evidence led in relation to the AMWU has done anything specific by way of industrial action, similarly I haven't heard any evidence led that the CEPU has done anything specific in relation to this industrial action and the only evidence that could have been led in relation to the CFMEU was in relation to the boilers hadn't closed down in any of the stoppages since the initial recommendation.

PN2475

The CMFEU has only four employees of Campbells and those employees are employed working on the boilers so that looking at evidence led in relation to specific union activity rather than the unions as a class would seem to suggest that since the initial stoppage and the first recommendation, the CFMEU has taken no action whatsoever and that there has been nothing led in relation to specific actions of the other two unions.

PN2476

So I guess the first position we would take in relation to the company's application is that although this matter has been going on for a considerable period of time, we would disagree that the Commission is fully appraised of the circumstances in relation to it in that - and it was certainly an agreed position of the parties, the way in which this matter would proceed, that all that the Commission has heard is the company's application, there has been no rebuttal but the unions so Mr McKenney's statement to the Commission that his evidence has gone largely unrebutted is quite correct because we haven't been in the situation to put any rebuttal in relation to it.

PN2477

Now in relation to the alleged industrial action and whether that industrial action is legitimate, we have prepared an argument in rebuttal, we certainly are prepared to run that argument. We have consistently from the first occasion said that any industrial action that was taken by any of the unions, we would say, was legitimate industrial action and we are quite prepared to run arguments in relation to that but unfortunately it hasn't got to the stage of this hearing where the Commission has heard all the matters.

PN2478

Now in relation to it being an interim order, what the company is seeking is, in effect, their order on an interim basis so I suppose if - what they are seeking is that we would restricted in the manner that they are seeking for the period of time until the Commission fully hears the matter and the Commission may then find in our favour so that - and in the Coal and Allied decision that Mr McKenney had given to the Commission, I think it was Coal and Allied that the onus is on the party making the application to established to the Commission - no sorry, it was Patricks and the MUA and that was at page 247 of the document referred to Mr McKenney:

PN2479

The onus is on the applicant for an order under section 127, extends to establishing, at least on a prima facie basis, that there are adequate grounds for the Commission ordering that the relevant actions stop or do not occur.

PN2480

Now I can hardly stand here before the Commission today and say that I have established that onus when despite having five or six days in the Commission in total in relation to this now, we have not spoken a word in relation to presenting evidence to support that and similarly in relation to the behaviour of the parties. There has been some behaviour which has been exposed in cross-examination of the evidence-in-chief of the company in relation to this matter but we haven't had the opportunity to put any of our evidence either to rebut the company's propositions or to put our own argument to establish to the satisfaction of the Commission the onus that we are required we believe to establish.

PN2481

So that what we would be seeking in relation to our application; we would be seeking a recommendation from the Commission and that that recommendation would be in similar terms to a proposal that we felt would, if agreed, establish an interim basis for the parties to return to a less hostile environment in which is to attempt to resolve the matter. Now that process, we believed, was a sensible one, however the parties have not agreed and we can certainly understand why the parties - why we weren't agreeing to theirs at least but we would be seeking recommendations along the lines of our proposal as a settlement of our matter and we would believe that if that recommendation was made as a settlement of our matter then that would mean that the necessity to make orders would be taken away. Thank you.

PN2482

THE COMMISSIONER: Thank you very much, Mr Hale. Mr Hale, could I ask, as I have asked throughout the course of these proceedings whether - and I note - and I am speaking to you know both in your capacity as a representative of the applicant in your own section 127 application and as the representative of all of the respondents in relation to the company's section 127 application, are you able to provide with any kind of assurance that there will be no further industrial action if I were to put in place recommendations of the kind that you are suggesting to me which I take it are recommendations which traverse the issues which were the subject of a consultation between the company and the unions earlier today. Is that right?

PN2483

MR HALE: That is what we would be seeking, Commissioner. Unfortunately I can't give you that guarantee however what - I guess what we are saying is that our industrial action, we have never said that it was anything other than legitimate industrial action. We have been prepared to put argument that that industrial action was legitimate industrial action. If it is legitimate industrial action we believe it would be wrong of the Commission to make it illegitimate by making such an order and that if the recommendation is in the terms that we have proposed or in similar terms that we have proposed to the Commission, well then the company's cessation of their industrial action will mean that there would be no longer any necessity on our behalf to take any sort of industrial action, legitimate or otherwise.

PN2484

THE COMMISSIONER: Yes. And could I also ask you: given the ambiguity or the uncertainly about the meaning of some parts of clause 10 of the agreement, whether it means that the parties are agreeing to arbitration by the Commission or simply agreeing to the Commission exercising some good offices to try and resolve the grievance, would the unions be willing to agree to concurring with the company, if the company chooses to concur, in an interpretation of clause 10 which would permit the Commission to arbitrate the substantive issues pursuant to clause 10 of the grievance procedure?

PN2485

MR HALE: Well I couldn't do that here today, Commissioner, in that if it were a single concurrence on a one-off occasion, I would still need to get further instructions. I am speaking here not only on behalf of the AMWU but the other unions but similarly I would believe that we could probably give that concurrence in relation to any section 99 application which we made but not necessarily in relation to the any section 99 application that the company has made at this stage.

PN2486

THE COMMISSIONER: All right. Good. Thank you very much, Mr Hale. Yes, Mr McKenney, I have some questions for you as well but you might address me first - briefly.

PN2487

MR McKENNEY: Yes, Commissioner. In relation to the ability of the union to have led evidence in relation to our section 127, of course they were in a position to put to Mr Pearce, when he was in the witness box, that what he was saying was incorrect or a different version could have been put to him. It wasn't, Commissioner so that evidence remains uncontroverted and a party - because of rules of evidence, I know they don't strictly apply in this Commission, Commissioner, but he is under some obligation to put the case that they will ultimately put to that witness and that wasn't done so they did have the opportunity, Commissioner, to do that.

PN2488

And in relation to the granting of interim orders, I don't have any authority at hand I can point to, Commissioner, but my recollection is that seeking orders on an interim basis is like seeking orders on an interlocutory basis in that - - -

PN2489

THE COMMISSIONER: Section 111 appears to make clear that the Commission can do so.

PN2490

MR McKENNEY: Certainly the power is there, Commissioner, and there is enough material in our submission to say that there is a serious question to be tried about whether the industrial action is illegitimate in terms of the Act and the authorities so there is sufficient material. The onus, we say we have discharged from the evidence we have put before you and also, Commissioner, the recommendations and the evidence that was put. When the matter was before Deputy President Hamilton, the unions had an opportunity then to contradict the issues that were being put.

PN2491

That wasn't done so there is sufficient to make the granting of the orders on an interim basis.

PN2492

THE COMMISSIONER: Yes. I note, Mr McKenney, in fact actually that if I made orders on an interim basis and the matter proceeded to final hearing, the capacity is actually there for the Commission to revoke any such orders, or is it not?

PN2493

MR McKENNEY: Correct.

PN2494

THE COMMISSIONER: I have to consider - whatever recommendations or orders I might see fit to make will, after what I have just taken on board what you have both said to me, I would only be looking at putting in place, pending the capacity to finally hear the matter and consider what is now a considerable body of evidence on transcript, before making a final decision.

PN2495

MR McKENNEY: Certainly that is right, Commissioner, and we would be entirely comfortable with all of that issued on an interim basis that remain in place until the finalisation of the section 99 matters before the Commission and it is important, Commissioner, to reiterate the point that the establishment of principles which we hope to have established through those proceedings will be the way in which the matter is ultimately resolved. That is how we see it. Now the issue of the union section 127 application, as I understand Mr Hale's submission, he has indicated to the Commission that the Commission should issue a recommendation along the lines of an amended proposal that the Commission is aware of that Campbells developed.

PN2496

THE COMMISSIONER: I think he was more suggesting how that looked after the union had discussed it.

PN2497

MR McKENNEY: Yes.

PN2498

THE COMMISSIONER: As the company had presented it.

PN2499

MR McKENNEY: Yes, certainly.

PN2500

THE COMMISSIONER: I will have consider all of the material before me.

PN2501

MR McKENNEY: We just make this observation, Commissioner, about that: that proposal was put on a without prejudice basis.

PN2502

THE COMMISSIONER: Yes.

PN2503

MR McKENNEY: And that was in an effort to resolve the matters between the parties. In is not, in our submission, appropriate necessarily that that be the subject of a recommendation by the Commission because there have been discussions about the differences of view in terms of those recommendations and the context is clearly different and the other factor, Commissioner, is that the sorts of things that the unions want incorporated into that agreement will, in our view, deleteriously affect our capacity to operate business effectively and efficiently and I am conscious of the fact, Commissioner, these matters have been discussed in conciliation and I am not really at liberty to put on record what those matters are but - - -

PN2504

THE COMMISSIONER: But I have to consider what has been said and what is on the record and consider whether - what recommendations, if any, I consider to be appropriate in regard to the union's application.

PN2505

MR McKENNEY: And the other thing I say, Commissioner, is that there is just no basis for an argument. I will be interested to hear what it is but there is simply no basis for an argument that the industrial action, we say the industrial action has been legitimate because there is a process, under the agreement, for paid union stop work meetings. There is a process that the parties agreed to as to how that would operate. What has happened, Commissioner, is that the unions have reserved the right to themselves to actually take stop work meetings that aren't authorised, that don't take into account the factors in clause 26, of our production and those sorts of matters.

PN2506

Now, Commissioner, I take it from what Mr Hale has said that he is not pressing for an interim order on his section 127?

PN2507

THE COMMISSIONER: That is what is he said. He has asked for recommendations.

PN2508

MR McKENNEY: So I probably don't need to address you on that. Could I raise one issue, Commissioner, about - could the Commission have a look at section - the definition of industrial action?

PN2509

THE COMMISSIONER: Yes.

PN2510

MR McKENNEY: In the Act, section 411.

PN2511

THE COMMISSIONER: I have been looking at it quite often in the last few days, I can assure you. Yes.

PN2512

MR McKENNEY: There is a wide-ranging definition, as the Commission is aware, as to what is industrial action and according to the union's application at clause - ground number three of their application says that:

PN2513

It is a practice in relation to work, the result of which is a restriction or limitation of the way in the performance of work.

PN2514

There is an exclusion, Commissioner, which is this:

PN2515

That industrial action does not include action by an employer -

PN2516

this is paragraph (f).

PN2517

THE COMMISSIONER: Yes.

PN2518

MR McKENNEY:

PN2519

That is authorised or agreed to by or on behalf of employees of the employer.

PN2520

I am in a position to give to you today, Commissioner, return to work agreements that have been signed by the employees' representatives of Campbells relevant medical practitioners that actually have the employee agree to the restrictions, the limitations on the performance of work.

PN2521

THE COMMISSIONER: Yes. Mr McKenney, because Mr Hale is not pressing the issue of making an order because he has not been able to present the whole of his case, but is pressing the issue of making recommendations, I don't believe I am able to reach a finding a to whether or not there is industrial action by the company in relation to the union's application today but I don't need to make that finding in order to make recommendations.

PN2522

MR McKENNEY: I certainly accept that, Commissioner. I suppose I have raised it because - in answer - - -

PN2523

THE COMMISSIONER: Yes, indeed. I will need further argument in - in further hearing when we will be very close to Mr Hale being able to have the floor and present all of his evidence, I will be able to hear argument from the union and from the company with regard to that. I doubt I am going to reach a finding in regard to that matter today but I note what you are pointing me in the direction of.

PN2524

MR McKENNEY: I don't press the matter; I simply raise it on the basis that - I mean even if you were thinking about interim - the interim relief in most of the union's application, there is just no prima facie case that is really put.

PN2525

THE COMMISSIONER: Yes. I would want to hear further argument about that before I reached any kind of conclusion, Mr McKenney, yes.

PN2526

MR McKENNEY: Yes. Excuse me one moment. Nothing further, Commissioner.

PN2527

THE COMMISSIONER: Yes. I have some questions for you, Mr McKenney, if you are able to answer or if you can seek instructions from your client. Is the company willing, as part of a moving forward in this matter, to put the eight employees who have been the subject of much discussion back on paid work, back into a situation where they are being paid what they were paid before they were sent home for a period of time while these issues are further aired?

PN2528

MR McKENNEY: I will just get instructions. Yes, Commissioner, in accordance with the offer that the Commission is aware of.

PN2529

THE COMMISSIONER: Is the company willing to offer up its draft Shepparton rehabilitation policy for a genuine process of consultation with the unions and its employees?

PN2530

MR McKENNEY: Yes, Commissioner.

PN2531

THE COMMISSIONER: Is the company willing to abide by the arbitration of the Commission of the substantive issues which are the subject of dispute as part of the exercise of the Commission's role in the dispute resolution procedure at clause 10 of the agreement?

PN2532

MR McKENNEY: I will just get instructions. Commissioner, my instructions are that Campbells will accept the Commission arbitrating over the issues of principle that are detailed in our section 99 application. We want to make it clear that we would be not accept the Commission arbitrating the contents of the rehabilitation policy.

PN2533

THE COMMISSIONER: So you are not offering that up?

PN2534

MR McKENNEY: No, no Our position, as you would be aware - - -

PN2535

THE COMMISSIONER: Arbitrating a dispute in respect of the introduction of a new rehabilitation policy?

PN2536

MR McKENNEY: There probably are some grey areas here, Commissioner, but - - -

PN2537

THE COMMISSIONER: I just wanting to understand that as clearly as possible, what it is that the company is willing to offer up. I have heard from the union what the union is willing or not willing to do.

PN2538

MR McKENNEY: What we accept, Commissioner, is that we have an obligation to consult and in fact we are willing to consult under the terms of our agreement and will consult about the terms of any draft rehabilitation policy.

PN2539

THE COMMISSIONER: But does the company accept that if there is a dispute, then it is got to be dealt with in accordance with clause 10 of the dispute resolution procedure?

PN2540

MR McKENNEY: No, we don't, Commissioner, because as you know what is in contention, Commissioner, is an issue that the union have raised about whether the - what they say is the policy; the 1992 policy is part of the agreement and we have a different view about that and what we don't want to have inferred from our willingness to consult with the union about the policy is, if you like, a further step that that policy is part of the existing enterprise agreement and therefore amendable to the Commission settling a dispute under clause 10.

PN2541

THE COMMISSIONER: Yes. That is where the Emwest may be relevant.

PN2542

MR McKENNEY: That is where it may be relevant.

PN2543

THE COMMISSIONER: Yes. Which I haven't heard any argument about. But in any event the company is willing to offer up the rehabilitation process for a genuine process - the rehabilitation policy for a genuine process of consultation?

PN2544

MR McKENNEY: Yes.

PN2545

THE COMMISSIONER: Which you have indicated, yes. All right then, thank you very much. Mr Hale, anything further from you.

PN2546

MR HALE: No, Commissioner.

PN2547

THE COMMISSIONER: Thank you very much. Look I realise we have probably got at least another day of evidence to be heard, Mr Hale, I would have thought from you in regard to your - the union's application?

PN2548

MR HALE: Commissioner, I would think a day is probably - - -

PN2549

THE COMMISSIONER: Two to four?

PN2550

MR HALE: I would say two days.

PN2551

THE COMMISSIONER: Two days, yes, I agree. So even if I had stayed here for the rest of the day we wouldn't have got to the end of it, unfortunately. So I am going to now consider the matters which have been put to me in the context of all of the evidence which has been presented to date and as Mr Hale says, the union hasn't been able to get all of its submissions and all of its evidence before the Commission. So to that extent it is more difficult for me to reach a view about orders in relation to the union's application but I well and truly can consider the issue of whether recommendations are appropriate.

PN2552

I am going to now consider what, if any, interim orders and what, if any, further recommendations might be issued in regard to both matters but I won't reconvene I will simply - whatever I am going to issue will be made available at the Court desk here at this stage by 12.30 so that the company and the unions and the employees have them as quickly as possible. I hope I will be able to do it in that time but between 12.30 and 1 o'clock, I will try and make it as close to 12.30 as possible.

PN2553

We won't reconvene today and because we are going to need to come back to Shepparton, my associate is going to need to check availability of dates here and liaise with Mr Hale and Mr McKenney about availability for the next phase of the proceedings.

PN2554

MR McKENNEY: Could I just remind the Commissioner, you asked Mr Hale about his - effectively his estimates, I have flagged, I think yesterday, Commissioner, other evidence that the company would like to bring along - - -

PN2555

THE COMMISSIONER: Yes. May be two and a half days.

PN2556

MR McKENNEY: I think that would a conservative estimate, Commissioner.

PN2557

THE COMMISSIONER: All right. I don't want to make the mistake of under allowing time. I will now adjourn. I won't be reconvening today. My associate will contact you about mutually convenient dates for the next hearings but I do flag they - with regard to the section 127 applications, those hearings will be here in Shepparton. I will consider whether it is appropriate to convene any section 99 hearings here in Shepparton in liaison with the section 127s or whether they are to be listed separately in Melbourne. We can't all be coming - I am wanting to maximise the opportunity for witnesses who are here in Shepparton to be able to give their evidence here in Shepparton.

PN2558

On the other hand, in the section 99s, it may well be that we can deal with those matters in Melbourne. There is only a limited capacity to be to come up to Shepparton and I want to be able to provide as expeditious a hearing of all of the matters as possible. Mr McKenney, anything further?

PN2559

MR McKENNEY: No.

PN2560

THE COMMISSIONER: All right then. I now adjourn these proceedings.

ADJOURNED ACCORDINGLY [12.02pm]