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Australian Industrial Relations Commission Transcripts |
1676 
, Transcript of Proceedings [2003] AIRCTrans 2521 (20 June 2003)
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
MUNRO J
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER REDMOND
C2003/ 1676
C2003/3884
APPEAL UNDER SECTION 45 OF THE ACT
BY SOMMER AND STAFF CONSTRUCTIONS PTY LTD
AGAINST DECISION IN TRANSCRIPT OF COMMISSIONER
SPENCER AT BRISBANE ON 7 MARCH 2003 NOT TO ISSUE
A CERTIFICATE PURSUANT TO S.166A IN C2003/1394
APPEAL UNDER SECTION 45 OF THE ACT
BY SOMMER AND STAFF CONSTRUCTIONS PTY LTD
AGAINST DECISION IN LETTER DATED 9 MAY 2003
BY COMMISSIONER SPENCER IN BRISBANE
BRISBANE
10.19 AM, WEDNESDAY, 4 JUNE 2003
PN1
MUNRO J: These are matters C1676 and C3884 of 2003, the first matter being a notification of appeal under section 45 of the Act lodged on 28 March against a decision in transcript of Commissioner Spencer on 7 March to not issue a certificate pursuant to section 166A, and the second matter being a notification lodged on 29 May effectively in relation to the same matter, concerning an appeal against what is said to be a decision in a letter dated 9 May 2003 by Commissioner Spencer to Freehills, the solicitor for the applicant, Sommer and Staff Constructions Proprietary Limited. Those were the first listing of the matters.
PN2
They were then listed concurrently on the basis that it was assumed that they can be heard in common transcript, must of the appeal books being in common to both matters. Could we have appearances, please.
PN3
MR A. HERBERT: Yes, if it please the Commission, I seek leave to appear on behalf of the appellant in both matters.
PN4
MUNRO J: Mr Herbert.
PN5
MR M. PLUNKETT: May it please the Commission, I appear for the respondent in both appeals.
PN6
MUNRO J: Yes, thank you. Leave is granted in both instances. Mr Herbert, it's your matter.
PN7
MR PLUNKETT: Perhaps I might mention a matter first.
PN8
MUNRO J: Yes.
PN9
MR PLUNKETT: It might dispense with an issue that Mr Herbert won't have to deal with, if I bring to your attention that it's not sought to introduce any fresh evidence. You will have gleaned from the written submissions that were filed with the Commission that it had been sought to read an affidavit - that's set out in paragraph 1 - of Ms Price, and the reasons for that were set out in paragraph 2, which was to show what had happened after the making of the decision. It's no longer sought to do that, so that will relieve the Full
PN10
Bench of having to consider the issue of the exercise of the power under sub-section (6)(a) of section 45. So that it follows then that paragraphs 1 and 2 of my submissions are to be struck out.
PN11
It also flows from that, that all of paragraph 12 is to be struck out because that was an assertion based on what the evidence showed, namely that there was no requirement for work on the Saturday or the Sunday. I'm content to rely on the record and not introduce fresh evidence. So 12 goes out. Similarly, the first two sentences in 16 go out. They're the ones that read:
PN12
It was a fact there was no work to be performed on the site nor any contractual obligation to perform work on the site till the following Monday.
PN13
That is to be deleted and similarly, what follows thereafter:
PN14
There was no expectation requirement to work on Saturday and there was never any work on the Sunday.
PN15
That's to be struck out. So that disposes of an issue that Mr Herbert may have - - -
PN16
MUNRO J: I'm sorry, just go back to the first pages. You were referring to the submission lodged on 30 May in relation to - I think it's in relation to both matters, is it not?
PN17
MR PLUNKETT: Well, at that stage it was only in relation to the first matter.
PN18
MUNRO J: Yes.
PN19
MR PLUNKETT: We weren't advised at that stage, so these submissions don't address the second matter but I'm content to do that if it be - - -
PN20
MUNRO J: Mr Plunkett, just direct me - it's the first two paragraphs that go out.
PN21
MR PLUNKETT: To be struck out.
PN22
MUNRO J: Yes, very well, and then we go through to paragraph 12.
PN23
MR PLUNKETT: 12 is to be struck out entirely and the first two sentences in 16.
PN24
MUNRO J: Well, for clarity purposes we'll mark as exhibit CFMEU1 the lodged written submissions received in the Commission on 30 May.
EXHIBIT #CFMEU1 WRITTEN SUBMISSIONS RECEIVED IN THE COMMISSION ON 30 MAY
PN25
MUNRO J: In matter C1676 we'll mark as SS1 the submission lodged by the appellant in matter 1676 and received on 21 May, and I don't
know that there has been a separate lodgment, although there is an appeal book in relation to matter C3884.
EXHIBIT #SS1 SUBMISSION LODGED BY THE APPELLANT IN MATTER 1676 AND RECEIVED ON 21 MAY
PN26
MUNRO J: Yes, thank you, Mr Plunkett. Mr Herbert.
PN27
MR HERBERT: Your Honours, Commissioner, there is a written submission lodged by the appellant in accordance with the directions which has been prepared, mindful of the admonition and the directions that it was to be a submission and not an outline of submissions and the parties were expected to speak to, and speak briefly, as I understand it, to that submission. Is it proposed to mark those submissions.
PN28
MUNRO J: I'm sorry, there's one we have marked as SS1. That's the submission lodged on 21 May. There is one that I think has come to my notice just now, this morning. That's a two-page submission.
PN29
MR HERBERT: Yes, I handed to your Honour's associate a two - - -
PN30
PN31
MR HERBERT: That's a submission in relation to the second appeal. It was not known that was to be listed at the time the first submission was drafted and there were no directions about submissions but I've taken the liberty of doing that anyway.
PN32
MUNRO J: Yes, I take it there's no objection to the matters being heard and go on transcript.
PN33
MR PLUNKETT: No, no objection.
PN34
MR HERBERT: In fact, your Honour, if the appeal in relation to the first matter is allowed of course, that takes care of the second matter and there will be no necessity to make a determination in relation to the second matter if the certificate has issued on the grounds sought in the first matter.
PN35
MUNRO J: Yes.
PN36
MR HERBERT: Your Honour, the appeal in this matter is as appears from the submissions - I will endeavour to do what has been directed to be done, and simply supplement the written submissions with some short oral submissions and confine most of what I have to say to responding to the submissions received from the respondent fairly lately. There is some perhaps immediate difficulty in responding to those submissions in the sense that they have now been chopped around fairly severely by reason of the withdrawal of the proposal to call further evidence, but I'll deal with that in due course.
PN37
The position, briefly stated, in relation to this matter, is reasonably straightforward and simple and it is this: the applicant sought, in the ordinary course, a certificate from the Commission at a time which was within the 72-hour period nominated in section 166A(6)(c).
PN38
At that time, the occurrence of the objective fact necessary for the grant of a certificate under sub-section (c) had not transpired and that it was not then possible for the Commission to issue a certificate under sub-paragraph (c), although it was entirely evident to all parties and there was no contest put to submissions put - there was no contest offered to submissions put to the Commission that the conduct or at least an element of the conduct complained of and that formed the basis of the notice to the Commission, was then scheduled and announced by the CFMEU to continue beyond the 72-hour limit in (c).
PN39
The Commissioner was told that as a matter of fact, which she appeared to accept as being a fact on Friday, 7 March, that is, that the conduct complained of or a substantial element of it, would continue for a period beyond 72 hours. Now, if it is the case, that the Commission does not accrue jurisdiction to issue a certificate until the 72-hour period has passed, as at Friday the 7th, the Commission could not have issued a certificate based on the considerations under sub-section (6)(c).
PN40
The two complaints of the appellant in this matter are that the Commission being seized of the certain fact that the conduct was planned, programmed and intended to proceed beyond the 72-hour period, that the Commissioner was then in effect bound to determine that she would not be able to stop that conduct promptly within the meaning of sub-section (6)(a). The structure and the context of the three alternatives provided under sub-clauses (a), (b) and (c) of sub-section (c) dictates, in my submission, that the expression "promptly" must mean in any event prior to the expiry of 72 hours, otherwise the provision effectively has no particular purpose or no particular work to do because after 72 hours it becomes irrelevant.
PN41
The Commissioner was told by the CFMEU that the conduct would not be stopped in 72 hours and would continue beyond the limit. I say that on the basis that the notice had been given on the Thursday afternoon. The Commissioner was hearing the matter on the Friday. On the Friday, the Commission was told by the CFMEU that the conduct would not cease until Monday, which - 7.00 am Monday was a time that was nominated, but that, on the figures that have been put in the written submissions, was 87 hours. That was the scheduled ceasing time that the Commission knew about, which was obviously well beyond the 72-hour limit.
PN42
Now, the Commissioner having been told by the union that the conduct, so far as they were concerned, would not stop within 72 hours, then there was no basis for the Commissioner to reject the motion that was put to her, that the conduct would be stopped promptly. Could I refer the Commission briefly to the transcript. Is the transcript of the proceedings before the Commission on the appeal books?
PN43
MUNRO J: Yes, this is on 7 March?
PN44
MR HERBERT: Yes. Paragraph 294 - 292 and 294. After a great deal of toing and froing in relation to the matter before the Commissioner, those passages summarised the position put by the applicant at that time. In the middle of 292, the fourth line:
PN45
I renew my submission that the Commission should not be satisfied at this point -
PN46
that is, the Commission - because all we have is really a hope that it is going to stop next Monday, at which point my client would have been subject to strike action for some 10 or 11 days.
PN47
In my submission, it is appropriate for the Commission to simply issue a certificate in terms of 6(a) in relation to that aspect of the matter today, on the basis that the current form of those involved in these proceedings is such that there can be no degree of confidence that it will be able to be stopped on Monday, or that the Commission's actions in that regard will have any effect. And then paragraph 294:
PN48
Monday may well be a little late in relation to my client's interests. In any event, by that time 72 hours will have passed, and we will be entitled to a certificate as of right at that time - because the Commission will not have been able to stop it by the time 72 hours from when the notice was served - which I understand was about 4 pm yesterday. So 4 pm Sunday, the time runs out. So I would ask the Commission to issue a certificate under 6(a), based on the ongoing industrial conduct, which currently has been unable to be stopped, despite the best efforts of everybody.
PN49
Now, that's just a succinct summary of the other submission that was put to the Commission. That's what we ask the Commissioner to do. The uncontroverted fact of the matter is that the Commissioner was informed by Mr Price, who was then representing the CFMEU, that the conduct - that there were - could I withdraw that and start again. The conduct that was asserted by the applicant is set out in paragraphs 81 - I'm sorry - on paragraphs around 81 and 82 of the transcript. It was adverted to there.
PN50
There were two elements, in effect, to the conduct which - I will come to the Commissioner's decision in the transcript shortly, but she made it clear that she understood there to be two elements to the conduct. The conduct is also referred to, of course, in the notice of intention to bring proceedings. But there was conduct of demanding, as appears - - -
PN51
MUNRO J: That is another set of conduct altogether, though, is it not, Mr Herbert? It bears very little resemblance to the conduct described in paragraph 81.
PN52
MR HERBERT: Which is that? In the notice?
PN53
MUNRO J: Yes. I think I might as well get this off my chest. If one looks at the notice - and I have - it is expressed in extraordinarily general terms; paragraphs 12 and 13 defines it. It is entered apart from that - it is one of the rolled-up pleas. In terms of conduct, it is a bit like the presentation of this case generally. People seem to - a bit like Alice - have words meaning what they wish them to mean. But the conduct on which you relied in your notice under 166(a), is, to quote it:
PN54
Inducing and will continue to induce sub-contractors to breach their contracts ...reads... interference with contractual relations.
PN55
It is not, in specific terms, about seeking an MOU, and taking industrial action against individual contractors, and which you now choose to describe and identify it with the conduct that you notified - the conduct that you notified as to which you intended to take an action in tort. It was expressed with very wide generality when you appeared before Commissioner Spencer you were seeking a desisting of the persistence with seeking an MOU, and a cessation of the strike action.
PN56
MR HERBERT: Yes. That's identified in paragraphs 9, 10 and 11 of the notice:
PN57
On 25 February, the CFMEU organised and engaged in industrial action involving employees of some of the contractors, which had the effect of disrupting work on the Brisbane sites.
PN58
That's paragraph 9. Paragraph 10:
PN59
On 26 February, CFMEU established picketers at two sites, being Lambert Street, Kangaroo Point -
PN60
that was the site that was the subject of the proceedings before the Commission that was mentioned before the Commissioner -
PN61
and Sanders Street, Mount Gravatt. The pickets remained in place on 27/28 February, had the effect of obstructing business conducted at the site. On or about 3 March 2003, the pickets referred to in paragraph 10 were reinstated by the CFMEU and the union organised and/or engaged in industrial action, involving employees or some of the contractors.
PN62
MUNRO J: I think you can take it I have read it - - -
PN63
MR HERBERT: Yes.
PN64
MUNRO J: - - - Mr Herbert. You don't need to test my patience with re-reading it to me.
PN65
MR HERBERT: Yes, but, your Honour, that was the conduct that continued on 4, 5 and 6 March in respect of which action was sought to be taken. The Commission was informed that that conduct which - and the outline of the kind of - that conduct in paragraph 12 is said to have induced certain matters. It's the conduct that were seeking to stop that's outlined in paragraphs 9, 10 and 11, of the industrial action taken in relation to employees of contractors disrupting work on my client's sites, which was said to have continued on 4, 5 and 6 March.
PN66
And we gave the notice on 6 March, and before the Commission on the 7th, seeking the right to take civil proceedings in relation to that conduct, and in my submission, that has been effectively identified as being the conduct. Before the Commissioner, the conduct was then articulated in a little more detail. The reason for the conduct, in one sense, was the pressing of the MOU. The particular conduct identified was the industrial action taken in relation to sub-contractors, which, as the Commissioner found in her decision in transcript, was conduct taken with an intent to bring pressure to bear on my client, although the employees concerned were not the employees of my client.
PN67
And on that basis, in my submission, the conduct which was identified on transcript before the Commissioner was appropriately identified in the notice under 166A, and there were, as it was teased out in the course of the proceedings, two elements to it. The first element was said to be the actual pressing for an MOU, which of itself was not causing any particular difficulties for my client.
PN68
But the primary element of that and the matter which was most the subject of concern in those proceedings was the industrial action and the cessation of work by sub-contractors by that industrial action, which disrupted and in fact closed the site in question. And that was the conduct in relation to which - and the only conduct in relation to which my client was able to obtain a 166A certificate, because by the time the matter came before the Commission, conduct of a similar kind in relation to other sites had been stopped. On this site, however, it had not.
PN69
So much was expressed to the Commissioner, and the Commissioner accepted that that was the case, that the work was going on - I'm sorry - that the industrial action was going on and that the work had stopped. The Commissioner heard evidence about the character of the stoppage and the reason for the stoppage. And at paragraph 346 of the transcript, the Commissioner made findings in relation to that matter, and found as a fact in her judgment that the action taken at Kangaroo Point site was not in relation to or in connection with issues of OH and S but related to the claim in pursuit of the wider industrial dispute relevant to CFMEUs pursuit of a memorandum of understanding of Sommer and Staff.
PN70
Now, the simple point in relation to this matter is that the union had notified, and the Commissioner had accepted, that work on that site would not resume until 7 am on Monday the 10th. The Commissioner was therefore seized of the information that the conduct, namely, the withdrawal of labour from the contractors and therefore the closing of the site, would continue until 7 am on Monday the 10th.
PN71
The Commissioner therefore, in my submission, was bound to find, in a proper exercise of judgment in relation to that matter, that the Commissioner would not be able to stop that conduct properly, because there was no indication whatsoever that the conduct was intended to be stopped at any time prior to the expiry of 87 hours, or in - as she sat, at least 48 hours - I'm sorry - almost 72 hours after she was sitting.
PN72
The confusion in the submissions by the respondent in this matter relates to the intimation, or a confusion between an intimation by the union, that the conduct would stop at a future time, with the stoppage of the conduct itself. The respondent submits that the conduct stopped at 3.30 pm on the Friday afternoon, when the union said it would stop at 7 am on Monday morning. Of course, that, in my submission, can't be true. Section 166A is concerned with the stopping of the conduct, not with a statement that the conduct will stop at some future time. And it is the timing of the stopping of the conduct which is material for the purposes of the issue of the certificate under 166A, not the timing of the statement by parties as to when that conduct would finish some time in the future.
PN73
The Commissioner was also informed, in the course of the proceedings, at paragraph 82 of the transcript, that:
PN74
The conduct is still ongoing, and, as I say, the advice that my client has received is that there will be no return to work until Monday. There will be no working tomorrow, although Saturday is a day commonly worked in the industry.
PN75
COMMISSIONER REDMOND: Was it commonly worked on that site?
PN76
MR HERBERT: Yes.
PN77
COMMISSIONER REDMOND: It was?
PN78
MR HERBERT: Yes. And the Commissioner was informed, in the transcript in the subsequent proceedings - that I will come to in the context of the second appeal, that there was work available on that site on the Saturday. But the question as to whether, in such circumstances, the conduct could be said to be ongoing was dealt with by a Full Bench of the Commission in the Esso Australia v Australian Workers' Union matter - I think copies have been handed up to the Bench; it's print PR903483 - in an appeal against a decision to issue a certificate in markedly similar circumstances.
PN79
MUNRO J: They are what - in the blue folder, are they?
PN80
MR HERBERT: Yes.
PN81
COMMISSIONER REDMOND: What case was that?
PN82
MR HERBERT: It's CEPU and Esso v Australian Workers Union. It's print PR903484. It's a short decision, a three page decision. Polites SDP issued a certificate in circumstances which are outlined commencing in paragraph 5 of that decision:
PN83
Work hired employees are on strike on 16 February - 17th and - and that was a Friday. ...(reads)... The 72 hours specified therefore expired on 19 February at 3 pm.
PN84
SENIOR DEPUTY PRESIDENT DRAKE: Mr Herbert, could I just ask you again. You say that the 72 hours expired at 4 o'clock on the Sunday?
PN85
MR HERBERT: Yes.
PN86
SENIOR DEPUTY PRESIDENT DRAKE: And you say that - - -
PN87
MR HERBERT: I think it's 4.50 or thereabouts, between 4 and 5.
PN88
SENIOR DEPUTY PRESIDENT DRAKE: And you say that work would ordinarily be conducted in the industry on the Saturday, and on that site on the Saturday?
PN89
MR HERBERT: Yes.
PN90
SENIOR DEPUTY PRESIDENT DRAKE: Do you say that that is the case on the Sunday?
PN91
MR HERBERT: No.
PN92
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN93
MR HERBERT: But in my submission, of course, that's not - - -
PN94
SENIOR DEPUTY PRESIDENT DRAKE: Oh, well, you can make your submission; I just want to know what your factual position is.
PN95
MR HERBERT: Yes. In my submission, that of course, as this case demonstrates, is not necessarily relevant. The expiration of 72 hours nominated under sub-section 6(c) is not related to working hours, or working time; it's purely calendar hours. Paragraph 5: it's conceded the employees are on strike, etcetera. There was an intervening weekend. The 72 hours specified expired on 19 February at 3 pm. In the context of that case, 3 pm on 19 February was 3 pm on a rostered day off. Esso relied on uncontested evidence to the effect that:
PN96
At 7.30 am on Friday there was a meeting -
PN97
etcetera.
PN98
Shortly after this meeting there was a meeting of construction contractors' employees. After those meetings they were informed that they would not return to work until the start of the working day on Tuesday, 20 February 2001 -
PN99
very similar facts to the present case.
PN100
It is not in issue that no CEPU members were rostered to work over the weekend of 17 and 18 February, or on the rostered day off on 19 February. So for three of the intervening days, there were no CEPU members rostered to work - either at the weekend or on the Monday RDO. Some contractors' employees were rostered to work, but they did not do so by implication as a result of the meeting on the Friday morning -
PN101
but they were AMWU and AWU persons respectively. This certificate related to CEPU. Paragraph 8:
PN102
We think it was open to the Senior Deputy President to conclude that the CEPUs conduct, which commenced on Friday with the strike, had not stopped by 3 pm the following Monday, 19 February 2001. And the circumstances, including the joint meeting of contractors' employees on 16th, the conversations -
PN103
etcetera, on the same day -
PN104
and the fact that members of AMWU and AWU who were rostered to work over the weekend, declined to do so. The conclusion was opened that members of the CEPU were holding themselves unavailable for work, until normal commencement time on Tuesday, 20 February. Accordingly we reject the CEPUs submission. The Senior Deputy President was in error in finding irrelevant conduct so far as it related to CEPU - commenced on 16 February and it had not stopped within 72 hours of the application being lodged.
PN105
Precisely analogous facts to the present situation, that what occurred is that industrial action had been ongoing at that point for some seven or eight days, that is, on the Friday the 7th. On the uncontested evidence, in fact, the material put forward by the CFMEU before the Commissioner, there was a meeting at the site at about 7 am on the Friday, at which point a decision was communicated by the union to the Commission that work would not resume until 7 am Monday. In the terms of the decision of the Full Bench in the Esso matter, those employees therefore held themselves unavailable for work. If called, they would not respond. If requested, they would not work.
PN106
To say that work will resume on Monday is the same thing as to say that work will not resume until Monday, as subsequent proceedings indicated, as was the fact work did not resume until Monday. It was never suggested to the Commissioner, at any level, that work would be - the stoppage - that is, the holding of employees as unavailable for work would cease - had ceased on the Friday afternoon, or on the Saturday, or on the Sunday. The making available for work only recommenced at 7 am on the Monday. And the fact that it may have been communicated to the Commissioner on the Friday that that was the position, did not alter the fact that the conduct itself was ongoing.
PN107
The error which is, in my submission, manifest in the Commissioner's decision in relation to this matter appears from the statements that the Commissioner has made on transcript at page 346. After having found that the conduct was in fact intended as part of the industrial campaign against the appellant, the Commissioner went on on the fourth line of paragraph 346:
PN108
Under section 166(a) it was clearly submitted that the conduct complained of had two elements ...(reads)... the return to work of the employees at the Kangaroo Point site, where further industrial action has been taken today.
PN109
So she identified two elements. She then went on in paragraph 347 to identify that:
PN110
At a late stage in the proceedings, the CFMEU agreed to withdraw the pursuit of the memorandum of understanding with the employer, given there was sworn evidence to the contract as no employees. Furthermore, the CFMEU has provided commitments, to the union's best knowledge, that the employees will return to work on Monday.
PN111
Now she appeared to accept that as being the earliest point at which work would return - would resume.
PN112
Accordingly -
PN113
I think that should be -
PN114
on the evidence and the circumstances of those conciliated outcomes, I do not intend to issue a certificate.
PN115
The Commissioner did not say why, given that the conduct would then have been continuing for 87 hours after the issue of a certificate, that she believed that the conduct would have been able to be stopped by the Commissioner promptly. The submission had already been put, that the conduct had not been stopped by the Commissioner, and would not be stopped for another 72 hours after she was sitting in relation to the matter - or 65 hours, or thereabouts, after the Commission was sitting in relation to the matter.
PN116
It was plain, in the context of the legislation, that that conduct having been then continued beyond 72 hours could not be considered prompt within the context of these sub-sections and that all that the Commissioner had done was to elicit what was said to be a commitment by the union to the best of their knowledge, that the conduct would stop in three days' time, not that it would stop immediately or within the 72 hour period after the notice was given and therefore not promptly. The Commissioner didn't stop the action promptly at all.
PN117
The Commissioner elicited, as I say, a commitment that the action would stop at some future time. And as it appears from the subsequent remarks, the Commissioner didn't seem to be terribly confident, in any event, that that commitment was going to hold water, because she put the parties on notice, and she directed that:
PN118
If the basis of the conciliated outcome of this matter is breached, in that the employees do not return to work on Monday, then I will issue a certificate in relation to the matter.
PN119
SENIOR DEPUTY PRESIDENT DRAKE: Mr Herbert, how can you say that that evinces a lack of confidence in the conciliated outcome? It seems to me that is an expression used at the end of a whole range of proceedings where undertakings are given and relied on by the Commission.
PN120
MR HERBERT: Yes.
PN121
SENIOR DEPUTY PRESIDENT DRAKE: "I rely on the undertakings, but if anyone breaches them, the matter will be back on." I don't know if you can draw an inference about her lack of faith in the undertakings given, or that it evinces any lack of commitment; it simply states the case. And it is, in my experience, on many occasions, used to indicate to the parties that they ought to come back should there be any problem.
PN122
MR HERBERT: Yes - - -
PN123
SENIOR DEPUTY PRESIDENT DRAKE: It's a fairly long bow to say that gives rise to an inference that the Commissioner didn't have any faith in the undertaking.
PN124
MR HERBERT: Not that she had no faith, but that she considered that the commitment was given by the union to the best as she put, to the best of its knowledge. That commitment was - as the material demonstrated, there were to be meetings - - -
PN125
SENIOR DEPUTY PRESIDENT DRAKE: Yes, I understand that - - -
PN126
MR HERBERT: - - - at 7 o'clock on the Monday, and the union wasn't in a position to say it definitely would happen - what would come out of those meetings. I am not submitting she had no faith, but it wasn't an iron-clad belief by the Commissioner. But in any event, the Commissioner did not explain, at any level, why it was that despite the fact that she knew that the conduct was going to continue then for another two or three days - why it was that the Commissioner declined to hold that she had been unable to stop the conduct promptly.
PN127
In any event, the remarks about the issue of the certificate on Monday - as is the subject of the second appeal in relation to the matter - indicated, with respect, that the Commissioner was not fully appraised of the consequences of the work resuming on Monday, in the sense that Monday being more than 72 hours after the commencement of the period that the Commissioner would, at that point, be obliged to issue a certificate in any event. The submission had been put to her that that's what would occur as of Monday morning, because it would be more than 72 hours in any event. And again the Commissioner did not advert to that matter in the course of her reasons.
PN128
But the simple error, as I say, of which we complain is that the statement by the parties - I'm sorry - the statement by the CFMEU that the conduct, which is the focus of the section, would continue for a period well beyond 72 hours in circumstances where there was no iron-clad assurance that that could or would occur meant that the Commissioner was in effect, in a proper exercise of discretion, required to consider that she had failed to stop the conduct, as opposed to elicit a commitment of some kind about future conduct. And therefore the Commissioner, on a proper exercise of discretion, was required to issue a certificate at that point. And that the prospect of a future cessation of the conduct of itself was not sufficient to justify a refusal.
PN129
But as I have submitted, in effect, the absence of reasoning in that paragraph does not allow the Full Bench to understand the basis upon which the Commissioner determined that she would not issue a certificate at that stage. It may well be that the Commissioner was also confused, with respect, in relation to the question of - if she had received a commitment on Friday as to a future cessation of conduct, whether that in itself was a cessation of the conduct. It plainly is not.
PN130
And if the Commissioner was of the view that the receipt of the commitment that was given on the Friday amounted to a cessation of the conduct, then she was in error in relation to that. And if the Commissioner thought that securing a commitment of that kind on the Friday, promptly, as it were, well within the 72 hour period, gave the Commissioner - or denied the Commissioner the power to issue a certificate under sub-section (a), then plainly, in my submission, the Commissioner was wrong in that. That decision should be set aside. Can I deal now very briefly with the matters raised in the respondent's submissions?
PN131
MUNRO J: Where is the public interest in this matter, Mr Herbert?
PN132
MR HERBERT: Well, the - - -
PN133
MUNRO J: Are you relying on that, or is that not a ground on which to circulate it to appeal?
PN134
MR HERBERT: Yes. Yes, there are submissions that are written - in the written submissions the matter is dealt with. I can certainly expand upon that, your Honour. The position is this. 166A is a special provision. It is a provision which is intended to deny the parties in the position of my client their legitimate entitlements under the civil law to recover damage from those who would do them harm, in the civil sense. And it does so by granting a limited immunity, and a considerably qualified and limited immunity, to parties who commit what would otherwise be civil wrongs in the course of industrial disputation. And that limited immunity would deny parties such as my client, who had no employees and who was not itself involved in a direct sense or capable of acceding to industrial demands, because it had no relevant employees at that stage.
PN135
MUNRO J: It is that aspect of it that - I am glad you went to it - that troubles me, because much of what was presented seemed to be based upon that possibly plausible, in the circumstances of the matter, but essentially spurious legal proposition which those that you represent appear to have been able to induce the Commission to accept, without adequately putting the law to the Commission.
PN136
Had you not read, or had no-one instructing you any familiarity with, the High Court principle in Queen v Moore ex parte FMWU? If you are a constructor, and you are engaging in use of labour hire, assuming you are not even a joint employer, why is an industrial dispute not able to be agitated against you in the authority of the High Court? And why was it put so confidently that because you gave evidence you had no current employees that the CFMEU was incapable of generating a dispute against you, if you are seeking to use contract labour through all the construction sites? And what lawyer could properly put that and secure that view from the Commission as though it was unarguable that if you had no employees, assuming that to be true, you could not be legitimately the subject of an industrial claim and were incapable of giving response to a demand?
PN137
The High Court has said otherwise, and yet the proposition seems to be put persistently by - I think it is Mr Coonan, is it - and by yourself, as far as I can see, throughout this whole disputation, that industrial action, if it was protected action taken against the labour hire employers, could in no sense be proper if it was taken or indirectly effected you because you are incapable of responding to a demand. And that is put as a proposition of law.
PN138
MR HERBERT: No, your Honour. With respect, that's not the proposition - - -
PN139
MUNRO J: You said you had no employees.
PN140
MR HERBERT: We had no employees.
PN141
MUNRO J: And do you induce the CFMEU out of this proceeding to accept that it therefore could not pursue against you any form of claim?
PN142
MR HERBERT: No, your Honour. My client asserted that they are in fact a party to the federal award, and they were legitimately made a party to that award - - -
PN143
MUNRO J: But they are not an employer.
PN144
MR HERBERT: They are not now an employer, and they have no intention, as presently advised, of employing labour, and therefore are not capable of entering into a certified agreement, which is what all this was about. The memorandum of understanding that was being pursued was - - -
PN145
MUNRO J: And on that proposition it would seem to me, with respect to whoever advanced it, a very doubtful one. It may be a matter of the form of claim that was made. The MOU that you were presented with spoke in terms of employees, but if whoever promulgated that proposition - and I think it is Freehills that can take responsibility for it - they did not appear to pay much heed to the principles in Queen v Moore.
PN146
MR HERBERT: Your Honour, the matter is - - -
PN147
MUNRO J: And I raise it, Mr Herbert, because there are concerns of public interest in this matter. Your client came to the Commission, in effect out of the proceeding that you now attack and then pursue again with the appeal you have got on 9 May - gained some advantage. You induced the CFMEU to back off on its claim. And the industrial action that had run for some weeks, it would appear, beforehand effectively stopped insofar as no further action was scheduled after 3.30, as I understand, on that day, subject to what you say, that whether or not the employees of some other employer should have turned up at your site on Saturday, but you say not Sunday, they did turn up on Monday. Having effectively got an answer, you persist in these appeals on the basis that there is only one answer in the 166A proceeding.
PN148
If you ask for a certificate, then you must get it. You seem to turn a blind eye to the fact that out of the process the action came off. The complaints against your - or the pursuit of an agreement against your client seemed to have ceased in relation to the pursuit of the memorandum of understanding, and it was so on the basis that you had no employees and you could not respond to a demand. That latter aspect, if you still put it - and you certainly put it pretty widely - seems to me to be legally unsound. It does not recognise the quite substantial body of principle that says a non-employer, particularly one engaging as you are in serial contract labour hire, cannot be party to an industrial agreement. Queen v Moore says there can be an industrial dispute; there may be an award.
PN149
MR HERBERT: Your Honour, but if there are no employees, there is nobody in respect of whom a certified agreement can be made, which is what the claim was directed towards. There is no purpose or utility - - -
PN150
MUNRO J: A 170LL agreement could not be made?
PN151
MR HERBERT: Well, there is no Greenfields in relation to these proceedings. This site had been operating for the best part of a year, as I understand it. It's a very substantial construction site. In relation to this area, this claim was part of a 2003 campaign - - -
PN152
MUNRO J: I do not want to get down to debating the precise terms of your 170MI notice, is it, that it spoke of your client as a single business, but did not speak in terms of specific clients?
PN153
MR HERBERT: No, no.
PN154
MUNRO J: The point I am going to, Mr Herbert - and you are now starting to address it - is that the bare proposition that because you had no current employees you were incapable, in the industry in which you are engaged and the way in which you have engaged it, of being subject to industrial dispute and demands that may bind the way you deal with the employees of somebody else who comes on to your construction site, is untenable.
PN155
MR HERBERT: It wasn't made, certainly not by me, your Honour. But that is not a proposition that was put. What was put was that the claim that was being pressed for the signing of certified - of the pattern of certified agreements that were being pursued under the MOU process that was being put forward. My client had no employees in respect of whom any such agreement could be made or could apply, and there was nobody in respect of whom approval could be given under LK or LJ, and under LL there were no prospective employees - - -
PN156
MUNRO J: And you won on that point, did you not? You secured Commissioner Spencer's acceptance of that proposition in a relatively unqualified way and induced the CFMEU also to back off on a demand that had been on your say so and evidence giving rise to conduct over some weeks against which you complained.
PN157
MR HERBERT: We sought to persuade the CFMEU on the proceedings that there was no utility in pressing that matter against Sommer and Staff because there were - it had no - - -
PN158
MUNRO J: And you succeeded.
PN159
MR HERBERT: And we succeeded in persuasion of the CFMEU.
PN160
MUNRO J: In the proceedings before the Commission where whatever else you had been doing beforehand seemed to have been unavailing.
PN161
MR HERBERT: The matter was - - -
PN162
MUNRO J: Well, had you persuaded - and I see your instructor shaking his head - had you persuaded the CFMEU up to 7 March to desist from the conduct?
PN163
MR HERBERT: No.
PN164
MUNRO J: But you did so before Commissioner Spencer?
PN165
MR HERBERT: We did so, on and off the record, and in and out of the Commission, on that day. The matter went off the record, and there were some indications when the matter came on the record that the parties had had some discussions off the record and informed the Commission, out of the hearing of the Commissioner, in relation to those issues, about the fact of employment. And Mr Price conceded that if - - -
PN166
MUNRO J: And they accepted. I think the process that you described somewhat disparagingly over the course of the hearing recorded before Commissioner Spencer - the CFMEU advocate moved from disputing the contention to accepting that there are no employees, accepting that there would be a withdrawal of the demand for the MOU, and effectively undertaking that work would resume on the Monday morning.
PN167
MR HERBERT: In communicating a decision that had been taken earlier that same day that work would resume the following Monday, a decision that had been communicated to him by his organisers.
PN168
MUNRO J: It is a matter, in that sense, of whether the cup is half full or full, isn't it? The discussion before Commissioner Spencer indicated that the normal shift would shut at 3.30 that afternoon, wasn't it, Friday? They would be back at 7 am on the Monday morning.
PN169
MR HERBERT: Yes.
PN170
MUNRO J: What was put to her to indicate that that was not the way in which they would have worked normally?
PN171
MR HERBERT: It was put to her that the - in the - - -
PN172
MUNRO J: There was something about cleaning up, wasn't there? That was about the only thing, that the site would still be dirty.
PN173
MR HERBERT: No, it was put to her that Saturday was a normal working day.
PN174
MUNRO J: Where was that put?
PN175
MR HERBERT: Paragraph 82 of the submissions. Not challenged throughout the whole of the procedures.
PN176
COMMISSIONER REDMOND: It's put "commonly" is it?
PN177
MUNRO J: "Commonly worked in the industry" - is that what you said?
PN178
MR HERBERT: Yes.
PN179
MUNRO J: Was that all you said?
PN180
MR HERBERT: Yes, on the record. And in accordance - - -
PN181
MUNRO J: So you say the public interest is to be derived out of section 66 - 166A?
PN182
MR HERBERT: The public interest is that the limited immunity which is conferred on parties is only to protect them from the commencement of civil proceedings in circumstances where the civil wrong which they may otherwise have committed arises in the course of the industrial matters which are referred to in 166A. In those limited circumstances, the Commission is given an opportunity to intervene in the industrial matter, and the party who may have suffered a civil wrong is not permitted to exercise its legal rights in relation to that civil wrong, whilst the Commission goes about the business that is described in sub-section 6. And parties are held off exercising civil rights in relation to that matter - their legal rights, but only under the qualified circumstances in (a), (b) and (c).
PN183
This is a case, in my submission, where the circumstances in (a) on the Friday had been made out, that is, the Commission was not able to stop the conduct, that is, the withdrawal of labour from the site and the shutting of the site, promptly after the notice - certainly more than 72 hours after the notice had been given. And therefore the immunity ceases to exist, and my client is entitled to exercise his - - -
PN184
MUNRO J: I think we can understand that proposition, Mr Herbert. You have put it to us a number of times.
PN185
MR HERBERT: Well, because my client's legal rights have been postponed, it is entitled to the full exercise of its legal entitlements as are allowed by the Act, that is, if the immunity expires, it expires, and the legal right postponed by my client is a very valuable right. And the immunity that is conferred on parties in these circumstances ought not to be extended any further than the legislation otherwise prevails, so it does not limit my client's legal rights any further than the legislation. And there is a great public interest in parties who may have suffered a civil wrong, not having that immunity extended any further than the legislation allows.
PN186
It can be an extraordinary imposition on parties in the position of my client, and great losses can accrue which can not be recovered, and so the limitation of that immunity is a matter of great public concern, particularly in circumstances where a Commissioner has apparently not adverted to the proper nature of the discretions that are to be exercised and not explained any reasons as to why it is that my client continued to be denied the exercise of its legal rights. So that is, in my submission, the - - -
PN187
MUNRO J: You make that assertion, Mr Herbert, and that is again an aspect of the matter that concerns me. It's simply not true, is it? The Commissioner has explained it to you. You assert that there are no reasons for the decision. The decisions are given in transcript.
PN188
MR HERBERT: Yes.
PN189
MUNRO J: There was a hearing on whatever date it was after Ms Young-Husband and the partner of Freehills had communicated several times with her, once, I think, copying it to the respondent. At that hearing, the Commissioner made it pretty clear what her understanding was, and yet you stand up as counsel and say that she has never explained it. It is simply false, isn't it?
PN190
MR HERBERT: In paragraph 346 and 347, in relation to this aspect of the matter, the Commissioner did not - - -
PN191
MUNRO J: But there were further proceedings. I mean, that is an explanation of what the Commissioner thought she was doing. It was direct; it was relating to the conduct that had been put to her; and she said that effectively it had stopped. Now, you might not like the answer. You might not like the reasons that were given. But it is simply false for you to say that no reasons were given, and it is adding to the falsehood when you ignore what transpired on the transcript and in that later conference before the Commissioner.
PN192
She put the matter in perspective; you might say her reasons are wrong. But it is false for you to persist, to perseverate in claiming that there were no reasons given. And it borders, I must say, on being against the public interest to persist with that sort of submission.
PN193
MR HERBERT: If your Honour is of that view, I won't.
PN194
MUNRO J: The comments need to be framed with care about these matters, Mr Herbert, and I don't think they are being framed with care.
PN195
MR HERBERT: Well, your Honour has that view, and, your Honour - - -
PN196
MUNRO J: Well, I am suggesting to you that it is false that the Commissioner did not give her reasons. She gave them on transcript extempore. She elaborated on them in response to the correspondence to her at the conference on - what date was it - in April?
PN197
MR HERBERT: Your Honour, are we at cross-purposes? Your Honour, I am talking - I'm sorry, but I was referring to the reasons in transcript at paragraph 346 and 347 as to why she would not issue the certificate in the first instance. I don't know if your Honour is talking about correspondence in subsequent matters. Your Honour, I don't make the submission she didn't give her reasons for the second decision, that is, the refusal on the second occasion. I make no submission about that.
PN198
I'm referring to an absence of reasons at paragraph 346 and 347, where, as I endeavoured to explain to your Honour, I had squarely put the submission that the Commissioner had not stopped the conduct promptly because the Commission had been told by the union that the conduct was going to go on for another three days at least. She does not even mention in paragraph 346 and 347, where she determines that she will not issue a certificate, why she considers that the conduct has been stopped promptly, when she was told that it's going to go on for another three days, in our submission. That's my reference to their being no reasons.
PN199
MUNRO J: Well, let's analyse what is there. And do you still say that no reasons are given, in the passage which you have taken us to, the one at 346? It follows in the next passage:
PN200
The CFMEU, at a late stage in these proceedings, have agreed to withdraw the pursuit of the memorandum of understanding with this employer, given that there is sworn evidence that the contractor has no employees.
PN201
So the first aspect of conduct, she says, is withdrawn.
PN202
Furthermore, has provided commitments, to the union's best knowledge, that the employees will return to work on Monday.
PN203
MR HERBERT: Yes. My submission is that the way it was put, "will not return to work until Monday" - that was three days hence, and well beyond the 72 hour period which would have compelled her to issue a certificate. She did not explain why a delay of 87 hours was prompt, whereas a delay of 72 hours under the statute is considered to be unacceptable.
PN204
SENIOR DEPUTY PRESIDENT DRAKE: And you say that the Sundays included no matter - that it was common ground between the parties that no work would occur on that day?
PN205
MR HERBERT: Yes, and Sunday is included in relation to that. And there - that on the Esso - - -
PN206
SENIOR DEPUTY PRESIDENT DRAKE: Yes, I understand.
PN207
MR HERBERT: Yes.
PN208
SENIOR DEPUTY PRESIDENT DRAKE: Just want to make sure.
PN209
MR HERBERT: On the Esso authority there was three days included which were not scheduled work days. But the principle as to whether the employees have made themselves available for work - and it was plain the employees had made themselves unavailable for work until Monday - - -
PN210
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN211
MUNRO J: After those two propositions, which might be taken as the two premises, follows the predicate, "According" - perhaps that should be "Accordingly" - "on the evidence, and in the circumstances of these conciliated outcomes, I do not intend to issue a certificate."
PN212
MR HERBERT: Yes.
PN213
MUNRO J: Why is that not the predicate reasons for decisions? And why is it not false for you to assert that there are no reasons for the decision?
PN214
MR HERBERT: Because the Commissioner did not explain why conduct which was to continue for three more days was considered to be promptly stopped. The surmise that I have postulated is that the Commissioner thought - - -
PN215
MUNRO J: So the conduct, you say, that should have been explained was the non-resumption of work - - -
PN216
MR HERBERT: Yes.
PN217
MUNRO J: - - - at some time earlier?
PN218
MR HERBERT: The conduct was the non-resumption - - -
PN219
MUNRO J: Did you ever put a time on which you wished it to be resumed - when it would cease to be conduct? When would the cup be full - 3 o'clock on Saturday? 4 o'clock on Saturday? When did they have to turn up for work for you to say that - I'm not sure how you put it - in the negative or positive if the conduct had ceased or had started?
PN220
MR HERBERT: In terms of section 166A, the conduct must be stopped - - -
PN221
MUNRO J: Leave aside the reference to the Melbourne one. Let's talk about physical things that we are doing - that were happening. If you are relying on the conduct of employees of some other worker which - some other employer, which I understand is the situation of the contractor - - -
PN222
MR HERBERT: Yes.
PN223
MUNRO J: - - - not being at work - - -
PN224
MR HERBERT: Yes.
PN225
MUNRO J: - - - when do you say they had to be at work for that employer?
PN226
MR HERBERT: They had to make - - -
PN227
MUNRO J: Presumably on your say?
PN228
MR HERBERT: They had to make themselves available for work again.
PN229
MUNRO J: That is the test, is it?
PN230
MR HERBERT: Yes, so that in circumstances where, if Saturday was a regular working day, that - - -
PN231
MUNRO J: That was not put to Commissioner Spencer, was it, in that form? That is something you are working out now.
PN232
MR HERBERT: No. With respect, your Honour - - -
PN233
MUNRO J: Where was it put?
PN234
MR HERBERT: - - - I was putting the question in a different way. But it was put to Commissioner Spencer - - -
PN235
MUNRO J: It was put at some variance, was it, to what you put it?
PN236
MR HERBERT: - - - at paragraph 294. I took you to the passages at 292, 293 and 294. 292 - it was put on the third last line:
PN237
All we really have is a hope that it is going to stop next Monday, at which point my client will have been subject to strike action for some 10 or 11 days.
PN238
and then at the end of 294:
PN239
I would ask the Commission to issue a certificate under 6(a), based on the ongoing industrial conduct which currently, even after the commitments that were given, currently has been unable to be stopped despite the best efforts of everybody.
PN240
MUNRO J: That is not an answer to the question that was put to you though, Mr Herbert. That is one of the difficulties - you seem to go off at a repetition of what you put. Where did you say to the Commissioner that this conduct will cease when each of the employees of - whatever the name of the firm was make themselves available for work at this site, and it's got to be by, what, 4 pm on Saturday? Or they have to turn up on Sunday in order to extirpate this conduct to a degree that will satisfy my client?
PN241
MR HERBERT: Your Honour, I didn't put it in those terms - - -
PN242
MUNRO J: Well, precisely. It is pretty obvious you didn't, isn't it?
PN243
MR HERBERT: Well, your Honour - - -
PN244
MUNRO J: Why not say so?
PN245
MR HERBERT: - - - I am not required to put it in those terms.
PN246
MUNRO J: But you say the Commissioner was deficient for not dealing with the proposition that you did not put.
PN247
MR HERBERT: No, your Honour.
PN248
MUNRO J: That her reasons - she gave no reasons because she failed to explain something that you had not worked out at that stage. And we are here on appeal taking up a fair amount of public time, not only to deal with this proposition, but the next one, and you say it is in the public interest?
PN249
MR HERBERT: Yes, your Honour. Your Honour, the matter was put squarely to the Commissioner, as she understood from the way that she - from the comments that she has made in transcript, that there were two elements. One was the pursuit of the MOU, and the second element, as appears in paragraph 346, was:
PN250
The return to work of employees at the Kangaroo site, where further industrial action had been taken today.
PN251
That's the words and she understood the point we put, and that's right. We were seeking a return to work.
PN252
MUNRO J: And you would concede she expressed herself to be satisfied about them in those terms? Your complaint is that she should not have been so satisfied because there was some other aspect of it that you would have liked them back at work on Sunday or on Saturday. That's it, isn't it?
PN253
MR HERBERT: No, your Honour, because the return to work, which was the object - was the ceasing - the absence from work was the conduct, the withdrawal of labour. The unavailability of the labour to work was the conduct that we were seeking to be stopped. The Commission was told that conduct would only be stopped the following Monday. The Commissioner understood that - that the industrial action would not stop for another few days. And the Commissioner appeared to consider - although she didn't articulate it in that way, she appeared to consider that the stopping of the conduct three days hence was sufficient compliance for her not to issue a certificate under sub-paragraph (a).
PN254
MUNRO J: I think I have got that part fairly loud and clear, Mr Herbert.
PN255
MR HERBERT: Thank you, your Honour. I am grateful for small mercies. And in that circumstance, your Honour, the Commissioner has, as I think I have already submitted, at risk of repeating myself, appeared to confuse the commitment given with the stopping of the conduct.
PN256
COMMISSIONER REDMOND: Is it your submission, then, that if the union would have said that people would return to work on Sunday there would be no argument?
PN257
MR HERBERT: That would mean that they were available?
PN258
COMMISSIONER REDMOND: Yes.
PN259
MR HERBERT: Yes.
PN260
SENIOR DEPUTY PRESIDENT DRAKE: Even though you didn't want them there on Sunday?
PN261
MR HERBERT: Well, it's not a matter of not wanting them - - -
PN262
SENIOR DEPUTY PRESIDENT DRAKE: No, no, but even though they were not required to work on Sunday. If they had put on the record that they would be available for work on Sunday, if that had been part of the commitment, and it had been given before the time that the 72 hours expired on the Sunday, the return to work if required on the Sunday, then that would have been sufficient?
PN263
MR HERBERT: The conduct would have stopped.
PN264
SENIOR DEPUTY PRESIDENT DRAKE: I see.
PN265
MR HERBERT: That would have made them available to do what was mentioned in the course of the proceedings, that there was some clean up work to be done on the site as a result of some rain during the strike period. And there was the subject of the evidence before the Commission of the fact that there was some cleaning up work needed to be done on the site before productive work would commence. It would permit all sorts of possibilities of that kind to occur: for preparation work, or remedial work, or work that might have been necessary for health and safety reasons, things of that kind. The options are endless, but the simple fact of the matter is that the conduct would have stopped in those circumstances, and the parties would be denied the opportunity of the issuing of the certificate.
PN266
SENIOR DEPUTY PRESIDENT DRAKE: Before the Commissioner, Mr Herbert, my recollection is that you made no reference to Sunday, that your complaint only concerned Saturday.
PN267
MR HERBERT: Yes, yes. Saturday in particular, yes.
PN268
SENIOR DEPUTY PRESIDENT DRAKE: Right. So the conduct will continue until tomorrow, was the extent of what you put, that proposition.
PN269
MR HERBERT: No, no. I don't understand the relevance of that, because all parties were agreed that the conduct was continuing beyond tomorrow. I don't know if that is an error in the transcript or a brain fade on my part.
PN270
SENIOR DEPUTY PRESIDENT DRAKE: No. Paragraph number 82, you say:
PN271
So the conduct will continue until tomorrow.
PN272
That's what you say.
PN273
MR HERBERT: That's what - - -
PN274
SENIOR DEPUTY PRESIDENT DRAKE: Implicit in that is my understanding that tomorrow is it, that you didn't - - -
PN275
MR HERBERT: No.
PN276
SENIOR DEPUTY PRESIDENT DRAKE: Well, you didn't say "till tomorrow and then Sunday." You said "until tomorrow."
PN277
MR HERBERT: Well, that's not - - -
PN278
SENIOR DEPUTY PRESIDENT DRAKE: You make no reference to it continuing on the Sunday, so far as I have been able to find.
PN279
MR HERBERT: Yes, with respect, I did, on a number of occasions. Paragraph 292.
PN280
SENIOR DEPUTY PRESIDENT DRAKE: 292.
PN281
MR HERBERT:
PN282
What we really have is a hope it's going to stop next Monday, at which point my client will have been subject to strike action for 10 or 11 days.
PN283
There was a fair bit of water under the bridge between paragraph 82 and 292, where it was made crystal clear by Mr Price that the work could and would only commence - recommence the following Monday.
PN284
SENIOR DEPUTY PRESIDENT DRAKE: So you say it's implicit in what you said under 292 that you included Sunday?
PN285
MR HERBERT: Yes.
PN286
SENIOR DEPUTY PRESIDENT DRAKE: Yes, all right. Thank you.
PN287
MR HERBERT: That was common ground between the parties.
PN288
SENIOR DEPUTY PRESIDENT DRAKE: Yes, thank you.
PN289
MR HERBERT: There was no availability for work on Saturday or Sunday, as I understood it.
PN290
SENIOR DEPUTY PRESIDENT DRAKE: Yes, thank you.
PN291
MR HERBERT: And the effect - just concluding on the question of public interest, the effect of the Commissioner's decision is to deny a very substantial legal right to the appellant to which it is otherwise entitled under the legislation, and that must always be a matter of considerable public interest. Just to conclude on the respondent's submissions which I was addressing when your Honour diverted me, the submissions of the respondent appear to contemplate that in paragraphs 13 and 14, paragraph 14 in particular, this was not a case when an announcement of a future resumption of work where the conduct would continue until the resumption occurred, but the industrial action had simply ceased as a matter of course and be returned to work when there was next a requirement to work.
PN292
Well, with respect, on the way the matter was put to the Commission, that's simply not true and the Commissioner did not accept that. The Commissioner understood the matter to be one where there would not be a resumption of work - there was no commitment at all for any resumption of any work at any level, whether on an on-call or a voluntary or a call-in basis or anything else, until the following Monday. And that amounts to a continuation of the conduct.
PN293
The further submission that's made in paragraphs 20 to 30 is, in my submission, misconceived. That submission suggests that the amendment to the rules of the Commission has in some way affected the operation of the Act and in particular the operation of Section 166A. 166A in its terms cannot be and does not purport to be altered by rules made by this Commission, and 166A prescribes that under subsection 6C that the period of 72 hours which is relevant for the purposes of issuing a certificate commences on the time that the notice is given under subsection 3.
PN294
The time the notice is given - or the notice that is given under subsection 3 is the written notice to a member of the Commission or a Registrar stating the person wants to bring the action. The uncontroverted evidence in these proceedings is, and the records of the Commission demonstrate, that that notice was given to the Registrar on the afternoon of the 6th and that any requirements under the rules that are referred to in the submissions as to what is to happen to that notice by way of service on other parties subsequent to it having been given cannot affect the commencement time which is prescribed under subsection 3 of 166A.
PN295
The commencement time of this notice was on the afternoon of 6 March between 4 and 5 pm - the exact time appears in the records - and that none of that is affected by the matters that are set out in the submissions in paragraph 20 to 30 to the point - where the point is made that the requirement to serve the notice on other people means that it somehow or other abrogates the requirement under the Act that it be given to the Registrar or suspends the giving of the notice for the purposes of the Act during the period that service of an endorsed copy is effected on other parties.
PN296
It's plain from the terms of the rules themselves that it was never intended to have that effect. The rules of this Commission, of course, order does not rise above its source. This Commission has no power to abrogate or otherwise repeal a provision of an Act of Parliament. Those submissions should be dismissed. The paragraph - my learned friend earlier indicated by reason of the fact he's no longer pressing the evidence of Mr Price that there was to be some deductions from his submissions. It would appear on the face of it paragraph 34 should also be struck out of his submissions and I won't deal with that because that deals with the issue of some evidence that's given by Mr Price.
PN297
Can I move to the second appeal very quickly? In my submission it is even more settled than the first appeal. The short point that's made in relation to that is that the - and I've delivered written submissions. I don't know if the Commission has had time to read them, but fundamentally the point is this: that the Commissioner at the end of the day on the 7th adjourned the proceedings without finally disposing of them. She had been told in the course of the submissions in support of a certificate on that day that by 7 am Monday the conduct would have continued for a sufficient period that the parties were entitled as of right to the issue of a certificate.
PN298
We did not and could not ask for the certificate to issue on those grounds at that time. We pressed other grounds before the Commissioner. The Commissioner, however, adjourned the proceedings without finally dismissing them or otherwise dealing with them, and I have set out the passage of the transcript in paragraph 1 of the written submissions in support of the appeal. Having adjourned the proceedings until further advice if required on Monday, as is set out in the submissions and as appears in the Appeal Book, on that Monday my instructing solicitors contacted the Commission to say that, "Now that 72 hours has passed in relation to the matter we now wish to proceed to obtain a certificate under subsection (c)."
PN299
That issue ebbed and flowed by reason of some discussion between the parties in relation to the matter generally and in the event as appears in paragraph 4, the Commissioner relisted the matter to hear some submissions and that matter was further adjourned pending even further discussions between the parties about the matter generally. Ultimately my instructing solicitors asked that the matter be relisted so as to finally determine the question of the issue of a certificate under 166A(6)(c) and the Commissioner issued the letter of 9 May in which the Commissioner indicated a view that was expressed provisionally in transcript during the relisted proceedings that she was in effect functus officio in relation to the matter and that she had determined the whole of the question as to whether a certificate would be issued in the hearing on 7 March.
PN300
The submission is made that the Commissioner was not functus officio; she had demonstrably not heard and determined the whole of the application before her on 7 March and that much was made clear, that there was the residual question as to whether the conduct would continue beyond 72 hours and that we would be entitled - and it was put on transcript that we would be entitled to a certificate as of right as at that time.
PN301
The Commissioner did not dismiss the matter. She did not terminate the proceedings. She adjourned the proceedings until the following Monday pending the receipt of further advice. That was on the indication that if there were developments on the Monday, one of which she articulated, that might warrant the issue of certificate then she would definitely issue a certificate at that time. Within the period for which the Commissioner adjourned the proceedings the applicant asked the adjourned matter to be relisted for a determination of an outstanding issue between the parties.
PN302
That is an entitlement to an issue of certificate in the events that had transpired up to 7 am on 10 March, and the Commissioner ultimately in the event declined to do so on the basis that she considered she had finally disposed of the matter on 7 March. In my submission, it's plain the Commissioner had no finally disposed of an application under 166A(6)(c), although it was a ground available to the appellant not on the Friday, but certainly on the Monday, and has never determined that matter.
PN303
The proceedings were able to be re-opened and in fact the Commissioner did re-open them. The Commissioner in effect failed to exercise the jurisdiction which she has and in respect of which there is not discretion, and failed to consider whether the conduct had continued. It was indicated that evidence would be sought to be called in order to establish the question and the factual entitlement - the existence of the facts upon which the applicant relied for the issue of a certificate under (6)(c). The Commissioner declined to hear that evidence and declined to deal with the matter at all.
PN304
And if under the legislation my client was entitled on facts and evidence which were available to be called, if my client was entitled to the issue of a certificate on that occasion, then my client has been wrongly denied its entitlement to commence such civil proceedings as it may be entitled to do for no reason other than that the Commissioner, in my submission, has failed to understand that there were a number of bases upon which her discretion could be enlivened and that one of them remained very much a live issue in the adjourned proceedings.
PN305
So far as it is relevant Mr Coonan made it clear in the proceedings before the Commissioner when she did re-list the matter on 9 April that - at paragraph 48 of those proceedings she was - the Commissioner asked Mr Coonan what labour did you require or did you have on foot. And this was in relation to the intervening period. And Mr Coonan's response at transcript, paragraph 48:
PN306
Now, we have work available certainly on the Saturday.
PN307
But it was - the application that was before the Commissioner was to be able to call evidence to be able to demonstrate the occurrence of the objective fact required to be demonstrated for the purposes of sub-paragraph 6(c), namely that there had been a continuation of the conduct. One of the matters that would have - that obviously was germane to that, which Mr Coonan put on a transcript but, of course, is not able to give evidence about necessarily from the Bar Table, is the question of the working patterns on that site and the requirement for work on that site and things of that nature in order to establish that what did occur in the intervening period was, in fact, a continuation of the industrial conduct, given the working patterns and working requirements for that Saturday.
PN308
The applicant was simply denied the opportunity of doing any of that in circumstances where it's not as if it can renew its application at some later or other time because the opportunity to give notice or they have the 72 hours passed - or the 72 hours pass, so that a certificate can be obtained, had passed and could not be retrieved. And so in those circumstances the opportunity of the applicant to acquire its rights in relation to that matter have expired and can't be retrieved unless the matter is able to be resolved by the mechanism of this appeal.
PN309
And, in my submission, again the denial of a substantial legal right to a party in those circumstances, conferred as it is by statute, should be confined within the limits of the statute otherwise allowed and should not be confined by a Commissioner failing to properly advert to the obligations under the legislation and the entitlements of the parties under the legislation in the manner that, unfortunately, the Commissioner did on this occasion. Unless there's anything further, Members of the Commission, those are my submissions in relation to both appeals.
PN310
MUNRO J: Yes, thank you, Mr Herbert. Mr Plunkett.
PN311
MR PLUNKETT: Thank you, your Honour, and to the Commission. The intellectual architecture of 166A(6) is plain enough, suffice it to say that in respect of sub-section (c) if the conduct did not end within the 72 hours there is no discretion and the certificate must issue. In respect of A and B there is the exercise of a discretion and it is the exercise of that discretion that is sought to be reviewed today by the applicant. And that's clear enough as well in the proceedings before the Commissioner, where at P/N54 Mr Herbert indicated as such - and there talked about the ability to certify earlier than the 72 hours. And that is what he was seeking the Commission to do.
PN312
So it is trite to observe that it's necessary for Mr Herbert to jump the hurdle as set out by Dixon, Evatt and McTiernan, House v R, affirmed in ..... Diamond and AWU in Poon. And it's not enough to agitate the same issues before the Commissioner on the basis that you ought to have taken a different view had you been sitting in the shoes of the Commissioner. He has not demonstrated any error of principle or reference to extraneous matters. He has not shown this is one of those rare occasions where the appellate jurisdiction would disturb the original finding.
PN313
The finding itself has been alluded to on a number of occasions already and it's found in P/N347. And the evidence upon which that finding had been made was also clear enough. And I've set that out in paragraph 10(f) of my submissions. And, in fact, my inventory in 10(f) is not exhaustive. There are 15 occasions, but I won't burden the Bench by going through them now, but there are 15 occasions in which it was made clear by the respondent that the conduct complained of - and that in its sharpest focused description is to be found in paragraphs 9, 10 and 11 of the notice, namely the holding of pickets or the conduct of strike action on attendance at work.
PN314
It was clear, made abundantly clear, and the Commissioner was able to inform herself in any way she wished to and she did do so. It was made clear by Mr Price on 15 separate occasions that that had been desisted from and further when pressed, when the dichotomy of not just the conduct but the agitation in the future for an agreement in terms of entering an agreement was alleged to be part of that conduct, Mr Price on two occasions indicated after the adjournment that that too was being desisted from.
PN315
There was a very strong factual foundation for the Commissioner to reach the view, as she did reach, that the matter had been conciliated. There was no live issue before the Commission that there was any requirement for attendance on the Saturday, let alone the Sunday. And it is not sufficient for the appellate in these proceedings to suggest by way of implication that there was such a requirement. The conduct referred to and specified - particularised in 9, 10 and 11 and then more generalised, as your Honour has referred to in the rolled up pleading in the subsequent paragraphs - was well identified by the parties.
PN316
And conduct itself must have an aspect of industriality to it. There must be an actuality. It is not conduct in the abstract. There was no requirement to work overtime on the Sunday. It was talked about Saturday being a day in the industry which is commonly worked but there was no live issue being agitated in the proceedings before the Commission that the applicant would be deprived of the labour, for which it said it had contracts, requiring the workers to perform on the Saturday.
PN317
You will see in the material and it's clear from - for example - and I won't take you to it but I will give you the references, P/N84 and P/N87 -that the work proceedings had been vexed by rain. In fact, one of the real issues which the Commissioner found was not a genuine one, the P/N176, was whether the lunchroom was leaking. And from P/N115 and P/N341 to 342 there's going to be a requirement in any event when they were next required to work on the Monday to engage in a cleaning up.
PN318
It's conceded, as I understand by my learned friend in his submissions today, that there was no requirement to work on the Sunday. So his argument is really based on a hypothetical abstraction that the conduct complained of was persisting, when clearly on the evidence which the Commissioner was satisfied of, that it had ceased. She had used the expression "the matter had been conciliated" in P/N347. And she was entitled to reach that view on all of the evidence. There was simply no live issue being agitated about a requirement to work on the Saturday, apart from the oblique reference in P/N82 that it was commonly worked.
PN319
But even if there was a live issue that there was a requirement to work on the Saturday, then she was entitled to exercise her discretion on the material she had before her that the matter had already been conciliated and there's nothing before you which would suggest that that exercise of discretion had, in any way, miscarried as a matter of principle. Therefore, you would be most reluctant to disturb it.
PN320
Bearing in mind, too, that - you will note from the transcript at the bottom of the page, that that proceeding was concluded at 5.12 on the Friday, and I think it's common ground between the parties that any requirement to work had ceased at 3.30 on the Friday. Now, if you're satisfied with that, it is not necessary for me to go to the second point about forensically analysing when the clock started ticking, therefore, when the clock started finishing. The evidence is clear that the conduct complained of had ceased and that there was no disputation between the parties that required any further conciliation, or had failed, which would necessarily result after the 72 hour period in the issue of the certificate.
PN321
SENIOR DEPUTY PRESIDENT DRAKE: Mr Plunkett, what was the new working day - the hours of? On the Sunday, what would it have - on the Saturday, for instance?
PN322
MR PLUNKETT: Usually 7 to 2, I am instructed.
PN323
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN324
MR PLUNKETT: But certainly there's no requirement. That's why it's not good enough to sort of go to the facts of the Esso case and somehow assert that that establishes some proposition of law. The facts of the Esso case, and my learned friend has taken you to portions of it, are clear enough. There is - - -
PN325
SENIOR DEPUTY PRESIDENT DRAKE: Mr Plunkett, I didn't ask you that for any purpose connected with the Esso case. There's no need to go to that.
PN326
MR PLUNKETT: All right. Well, all I'll say - - -
PN327
SENIOR DEPUTY PRESIDENT DRAKE: Unless somebody else wants to.
PN328
MR PLUNKETT: That's all I can say, that there's no requirement to work overtime on the Sunday. There were no rostered hours on the Sunday. There was no roster, as existed in the Esso case, for people to attend to the Sunday and it's not been asserted or agitated, either before the Commission below or here, that there was any roster for an attendance on the Saturday. So there's simply no live issue. The matter had been conciliated and there hasn't been demonstrated that, in the exercise of the discretion not to issue the certificate under subsection (a) and (b) and subsection 6 of 166A, that there'd been any miscarriage of that discretion.
PN329
COMMISSIONER REDMOND: Mr Plunkett, if people were required to work on the Saturday, what was the normal practice on the site? Where they asked by 12 o'clock, or by knock off time, do you know?
PN330
MR PLUNKETT: I don't know. They would know by lunch time.
PN331
COMMISSIONER REDMOND: They would know by lunch time.
PN332
MR PLUNKETT: On average, yes.
PN333
COMMISSIONER REDMOND: Yes, thank you.
PN334
MR PLUNKETT: I mean, one of the extraordinary facts - this is during the wet - the very wet part of the season in Brisbane, and the evidence is clear that, in fact, work had stopped because of rain. So, again I'm saying, it's not a hot issue. It's a matter of industrial reality - - -
PN335
COMMISSIONER REDMOND: When work had stopped because of rain, if it practice here for them to sit in the sheds, or would they have normally left the site?
PN336
MR PLUNKETT: Sit in the shed. Bear in mind, the shed is leaking as well in this case. But, in any event, I'll simply dispose of this issue by saying it's not good enough to say, "Well, let's see what the Full Bench decided in the Esso case and somehow you're bound by that." That case was clearly enough decided by the peculiar facts of that case and I won't labour them, but they're set out in the last five paragraphs - paragraphs 6, 7, 8 and 9, and it's clear there that what, in effect, occurred was there was not a genuineness about abiding by the requirements to honour the roster over the weekend.
PN337
I mean, there was a clear live issue being agitated on that occasion. So on the peculiar facts of that case, one can understand the result that was fairly reached, and properly reached, by the Full Bench. There is no similar parallel or identical carbon copy that's occurring on this case. Out of fairness I should acknowledge - my learned friend didn't deal with this - I should acknowledge that, because of the abandonment of the respondent's request that fresh evidence be considered, I should also acknowledge that paragraph 31 and 32 of my submissions ought to be deleted, and that's the issue about when did the clock stop ticking.
PN338
Now, if you reach the view that there - no basis has been shown to why you would want to disturb the decision below, it's not necessary to go to this issue, and I won't labour it apart from dealing with two little issues. My learned friend's submission about the statute and the rules has some strength to it, but for the Full Bench decision. When one looks at subsection 6 it does talk about, in both subsection (b) and (c), about 72 hours after the notice was given under subsection 3 in respect of the conduct, because subsection 3 is plain enough, and it is the notice that has to be given by the person who wants to bring an action in tort in respect of the conduct to which subsection 1 applies. And that notice is required to be served on the party, and one can see the chronology from the section, prior to it being filed with the Commission and prior to the Commission, in subsection 5, taking immediate steps to continue or to try for the exercise of its powers to stop the conduct.
PN339
Now, in two of the authorities I refer to, there was a very - very much a live issue about when the clock started because it was necessary to determine whether or not there had been a breach of the 72 hour period. The - and I won't labour these in great detail, that the Transfield Obayashi joint venture case makes it clear that the time starts ticking, not from the service of the notice under subsection 3 upon the potential respondent to a 166A proceedings, but from when it is filed with the Commission and, of course, that brings certainty to it because it stamped. And that's plain from - I don't know whether you have - you probably weren't given copies of Obayashi, but I'll pass them up to you. This is the Full Bench in April of 1999, Vice President Ross, Senior Deputy President Watson and Commissioner Frawley, and there the question was posed - the answers given - if you go to paragraph 108:
PN340
We have reached the following conclusion about a proper construction of section 166A. Section 166A(c) is to be construed as if it required the Commission to ask, "Did the conduct stop before the end of the specified 72 hours?"
PN341
I'm just pausing there. It's quite clear in this case the Commission had reached the view that the conduct had stopped. They then went on:
PN342
A section 166A(3) notice can be presumed to be given at the time endorsed on the notice pursuant to subrule 29(3)(a).
PN343
This is a rebuttal resumption. So there the Full Bench talks about a resumption. The clock starts ticking at the time of endorsement of the notice, and the endorsement is the - can only occur once it's file with the Commission or Registry and you'll see from paragraph 9 that, at 8.22 on the morning of Friday, 13 November 1998, the 166A application was stamped as having been received, and that's the time of endorsement. And that's the view that the Full Bench reached in paragraph 109 was the time that the clock started ticking.
PN344
Now, this decision, as with the ATCO Magnet Wire case, and I don't want to take you to it, but I'll hand it up to you, took place before an amendment to the rules, but the decision is authority for the proposition that, as far as determining when the commencement of the 72 hours' period starts, it starts - it's presumed to start at the time of endorsement of the notice, namely when the stamp was affixed.
PN345
Significantly, post both of these decisions - in the ATCO Magnet Wire case there just simply wasn't sufficient time to attempt to conciliate it and it was bad luck in terms of the respondent in that case. But significantly both these - following both these two decisions, section 3A was inserted into the rule 29 and it provides that, once the Registrar received the notice, he immediately must send a copy of it to the notifier and each organisation of employees and each of its officers or employees, if any, mentioned in the notice.
PN346
Now, the practical consequence of that is that it would then give certainty, and in my respectful submission it seems to be the intention of the insertion in the rules, it will give certainty for the parties to determine when the notice starts ticking. And one can well imagine a whole lots - lots of scenarios where the notice under subsection 3 could be faxed at night time, so what the Full Bench is saying, well, that's not the time when you calculate the ticking of the clock. The time is from the - presumably, from the endorsement that that can be rebutted. So that the rules aren't seeking, as my learned friend submits, and it does have force to it because it's correct in law, can't supplant the requirements of the statutes. The rules have, in terms of - - -
PN347
MUNRO J: What turns on it in this case, Mr Plunkett?
PN348
MR PLUNKETT: Nothing if - - -
PN349
MUNRO J: Wasn't it common ground that it's 1.47 on Sunday when it expires or 4.40 on Sunday?
PN350
MR PLUNKETT: Well, all I can say is - all that turns on it is that there is no evidence as to when the endorsed notice was served. The Commission itself on two occasions says that it was filed with the Commission late the preceding evening, so that's evidence of the fact that it was filed - presumedly, it was stamped - and the notice starts ticking from there, but in my respectful submission what turns on it is that it's necessary to establish - in order for my learned friend to establish - that there had been a contravention of the 72 hour rule he would need to show that the endorsed copy of the notice had been served on the respondent in these proceedings.
PN351
So it's not a - I'm not putting that force at this point, but if you reach the view that you need to look at this issue as to whether or not there had been a continuation of the conduct beyond the conciliation, or she was in error deciding that, then you would need to determine when the clock started ticking. There is material, I'd have to concede, before you that it - the clock started ticking on the Thursday evening, so, therefore, it would have - - -
PN352
MUNRO J: What, Thursday midnight?
PN353
MR PLUNKETT: Well - - -
PN354
MUNRO J: I thought it was - have I got something wrong? I thought it was 1.47 pm.
PN355
MR HERBERT: Well, 4.47, your Honour, I think.
PN356
MR PLUNKETT: If you - if you go to the stamped document - and I don't know if it's before you, I don't think it is, but it's no doubt in the file and I think it's common ground that if the stamp appears to bear a 4 o'clock date upon it.
PN357
MUNRO J: 6 March, is it?
PN358
MR PLUNKETT: Yes. I don't think it's the stamped - - -
PN359
MUNRO J: That was the Thursday.
PN360
SENIOR DEPUTY PRESIDENT DRAKE: Yes.
PN361
MR PLUNKETT: Yes. The stamped documents. Look, it's - well, it's dependent, Commissioner, how you read these stamps too, but certainly after 4 or on 4 or after 4 on 6 March. Now - - -
PN362
SENIOR DEPUTY PRESIDENT DRAKE: I think Mr Herbert says 3 minutes to 5. Is that right, Mr Herbert? Is that what you said?
PN363
MR HERBERT: I think it's 4.47 is the time that I've been told. I said between 4 and 5.
PN364
MR PLUNKETT: So my submission is simply this: if you need to calculate whether there'd been a breach of the 72 hour period there is no evidence that the stamped endorsed copy was served upon the respondent at all. So you can't calculate when the 72 hour period had expired. So, in my respectful submission, it's not necessary to go this far, but there is a serious deficiency in my learned friend's case in that there is no evidence that the endorsed copy it seems to be required to be served, arising from the Full Bench decision in Transfield Obayashi, was done and particularly in light of the fact 3A of Rule 29 requires everyone to be notified presumedly with the certainty of the time commencing from that stamp.
PN365
I don't make a great deal of that submission but I do put that forward as a matter of practical reality. There's simply no evidence anywhere in the material that an endorsed copy of the notice was served upon the organisation of employees at each of its offices or employees if any mentioned in the notice. Turning to the last issue upon which my learned friend - or the second appeal - it's clear that the appellant is agitating the same point about - and by particular reference to the Esso case at P/N48 and P/N49 of the second set of transcripts, dated, 9 April 2003. But, significantly, the starting point as to whether or not there is any disclosed error in the second appeal really has to deal with what the Commissioner said in P/N347 of the first proceedings:
PN366
However, I will clearly put the CFMEU and employer on notice that I direct that if ...(reads)... on clear evidence of this information I will issue the certificate in this matter. On that basis -
PN367
she said:
PN368
I adjourn this proceeding until further notice if required on Monday.
PN369
So there's a lot of contingency built in whether or not she would need to revisit the matter. Now, the - in P/N48 Mr Coonan says:
PN370
We have work available certainly on the Saturday.
PN371
Again, there is no material or evidence in any of the transcripts or anywhere else that the conciliated outcome of the matter, as the Commissioner had conciliated, was breached in that they did not return to work on the Monday. So it was on that basis she adjourned the proceeding until further advice if required on Monday.
PN372
MUNRO J: Sorry, in P/N48 that comment was made, was it?
PN373
MR PLUNKETT: Yes, the last sentence in P/N48.
PN374
Now, we have work available certainly on the Saturday.
PN375
And then - - -
PN376
MUNRO J: This is on 7 March?
PN377
MR PLUNKETT: Yes, your Honour. 9 April. 9 April, your Honour.
PN378
MUNRO J: Oh, I'm sorry.
PN379
MR PLUNKETT: Sorry, your Honour. This is dealing with the second appeal.
PN380
MUNRO J: Yes. But that wasn't said in those terms on 7 March, was it?
PN381
MR PLUNKETT: No, no. 7 March the matter was at an end but she was content on the contingency that there'd been a breach of the requirement to return on the Monday. It was common ground. That's why there's a fiction about this appeal. It's common ground that there was no real requirement to do any work on the Sunday and the Monday everything was back to work by 3.30 on the Friday, but if they wanted to hear any evidence of that in terms of sub-section 7 of 166A, well, that would be a live issue, sub-section 7, dealing with the proposition where it ceases and it resumes, misbehaviour by an industrial organisation saying, "We will stop them recommence." So that's what, in my respectful submission, the Commission is clearly contemplating, sub-section 7 of Section 166A in her remarks at the conclusion of the proceedings on 7 March.
PN382
Now, when it was brought back on 9 April there was nothing to suggest that they did not return to work on the Monday on clear advice of information. There's nothing to suggest on that basis that there was a live issue to agitate following her conciliation of the matter on 7 March. And, indeed, when one looks at what was being discussed it was again the assertion that Esso - or the Esso Oil case was somehow an iron rigid rule of law when we're dealing with week-end situations, but, again, as I've pointed out, in that case there was the peculiarity of a roster having a requirement for attendance over the week-end which doesn't exist in this case.
PN383
So on that basis too you could reach the view there's nothing in the attempt to appeal the second decision of the Commissioner. Unless there's some specific issue that you wish me to address I'm content to leave my submissions with you on that basis.
PN384
MUNRO J: Yes, thank you, Mr Plunkett. Mr Herbert?
PN385
MR HERBERT: Yes, just on the last point, my friend's recitation of the position in Esso and seeking to distinguish that case from this on the basis that there was a roster, paragraph 7 of that decision - I'm sorry, 17 of - no, it's 7, sorry - it is paragraph 7:
PN386
It is not an issue that no CEPU members were rostered to work over the week-end of 17 and 18 February or on a rostered day off of 19 February.
PN387
So all CEPU members were off roster for the whole of the three days that were in contention, so my friend's contention about the effect of that case is, with respect, not correct.
PN388
My learned friend sought to make something of the state of the evidence before the Commissioner in relation to the availability of Saturday work in respect of the first appeal, and the difficulty that confront me in relation to the appellant in relation to that matter, however, do not exist in relation to the second appeal and the reason for that is that it was made clear at page - at paragraph - 54 and 55 of the transcript of 9 April, to which you were just taken, that the applicant sought to call evidence in order to establish an entitlement to certificate under sub-section (c) and that is a matter of which we complain that the applicant was not - and the Commissioner asked the question, "You're seeking to bring evidence to that effect this afternoon." Mr Coonan answered effectively, "In effect, yes, but not this afternoon because there were other discussions that were ongoing but that is the purpose for which we wish to bring the proceedings forward."
PN389
The evidentiary difficulties put against me in relation to the first appeal were sought to be dealt with by way of evidence and submissions in the second appeal in relation to the (6)(c) matter, and the appellant was denied the opportunity of doing that.
PN390
MUNRO J: What was it that you were seeking that you hadn't already had refused on the first occasion?
PN391
MR HERBERT: A certificate under (6)(c) on the grounds in (6)(c) had not been refused on the first occasion because it couldn't be refused because it couldn't be asked for - because the objective fact necessary for the operation - - -
PN392
MUNRO J: The Commissioner didn't accept that submission. She said she had found against you, in effect, didn't she, in very clear terms? She said, "I accepted the industrial action had stopped". You don't seem to have taken us to that passage. Paragraph 31 - perhaps you should read it out.
PN393
MR HERBERT: The Commissioner said that:
PN394
I consider I stopped the conduct within 72 hours. My view as the conduct was on foot was clearly enunciated in your submissions relating to the pursuit of the memorandum of understanding. The employees were not at work on that Friday. It was clearly pointed out to me the next time they will return to work was Monday morning at 7am.
PN395
That's precisely my submission. That's the error that the Commissioner made. That's very illustrative of the error the Commissioner made in relation to the matter - that they would not return to - - -
PN396
MUNRO J: And it's also an indication that the Commissioner considered that she had stopped the conduct.
PN397
MR HERBERT: And that's what she says there and that's the error of which we complain.
PN398
MUNRO J: Well, I can understand that, but what were you seeking, if that is what the Commissioner had thought she had done - what were you seeking on the second occasion? You were asking her to reverse her earlier finding, were you?
PN399
MR HERBERT: No, your Honour. The Commissioner hadn't made a finding in relation to - we hadn't asked at all for a certificate under (6)(c) because we couldn't - because by no measure of means had 72 hours passed since the notice, and I made that clear. We cannot now ask for a certificate under (6)(c) and we don't ask for - - -
PN400
MUNRO J: Yes. I think I can understand the nuances of that, but whether you asked for it or not - and you did say, "Well, perhaps it will be a little bit late for us on Monday" and the submission you did put. The Commissioner is there making clear if it wasn't adequately clear that she did not intend to issue a certificate. She was refusing a certificate, but she would look at the matter on Monday morning if there wasn't a resumption of work. She accepted that the conduct had stopped, though you didn't.
PN401
You were of the view that if you lead evidence on 9 April, that you had work on 8 March, then the Commissioner's decision on 7 March should have been revisited on 10 March or some time thereafter and you should have got your certificate. I understand that point, but the Commissioner said she had ruled on it. She had accepted, on 7 March, on your notice given on 6 March at 5pm that the conduct was effectively ended by the undertakings that were given before her - there would be a resumption of work at normal time on Monday. If that didn't happen, she'd probably issue a certificate. That was her ruling.
PN402
MR HERBERT: But - - -
PN403
MUNRO J: And your letter to her basically invited her to get rid of that ruling in some way by dealing with a new application, didn't it?
PN404
MR HERBERT: No. No, your Honour, and - - -
PN405
MUNRO J: You wanted to put new grounds and say, "Oh, we've got - I don't want to canvass your decisions under 166A(6)(a) and (b), but we've got this ground we want to put under (c)".
PN406
MR HERBERT: Yes, because - - -
PN407
MUNRO J: Yes.
PN408
MR HERBERT: - - - the Commissioner understood - firstly, your Honour, we did not make an application under (c). The Commissioner - - -
PN409
MUNRO J: I think I've - - -
PN410
MR HERBERT: - - - did not rule on it and she understood that in paragraph 17 of the transcript of 9 April. She says:
PN411
Your original application only sought - this application was only in relation to 166A(6)(a), 166A(6)(b).
PN412
MUNRO J: Yes.
PN413
MR HERBERT: She was confining her determination to the application we made under (a) and (b). She was not purporting - - -
PN414
MUNRO J: Your complaint - - -
PN415
MR HERBERT: - - - to rule in relation to (c).
PN416
MUNRO J: I think I have that - your complaint in relation to the proceeding on 9 April, is it, or is it on 9 May - is that natural justice was denied?
PN417
MR HERBERT: I - - -
PN418
MUNRO J: I don't know that you pleaded that ground, but is that another one you're putting?
PN419
MR HERBERT: The Commission failed to exercise the jurisdiction, is the ground on which the appeal is brought. That is, she failed to hear and determine an application which we were then making for a certificate under (c) at the only time that we could make such an application.
PN420
MUNRO J: That is not so. You made an application by lodging of the notice of intention to bring an action in tort.
PN421
MR HERBERT: Yes.
PN422
MUNRO J: The Commission thereupon exercises its functions.
PN423
MR HERBERT: Yes.
PN424
MUNRO J: I'm not sure that you even need an application for certificate. It either grants the certificate or it doesn't, and it didn't. It would be common in the circumstances if, for instance, the Commission wasn't assured that there would be a resumption of work after 5pm on Sunday - and I note the time. It seems to be an instance of a late on Thursday afternoon application. Is that the practice so as the time expires on the Sunday?
PN425
MR HERBERT: No, your Honour. It's because - - -
PN426
MUNRO J: An accident, was it?
PN427
MR HERBERT: No. All other sites went back to work except this site.
PN428
MUNRO J: Sure. Well, in that event, - - -
PN429
MR HERBERT: On the 6th - - -
PN430
MUNRO J: - - - in the ordinary course, the Commission would say, "Well the certificate will issue". Sometimes, if it thinks it can't stop the action in 72 hours, it issues it before the action - 72 hours has elapsed, - - -
PN431
MR HERBERT: Yes.
PN432
MUNRO J: - - - because it knows it is not going to or if there is a contingency, it says pretty much precisely what Commissioner Spencer did - "If you're not back to work, the certificate will be out first thing Monday morning, with or without hearing". It's a very common approach, if it thinks it's on shifting ground. That's all the Commissioner said, in effect. She later said that the conduct had stopped - end of story.
PN433
MR HERBERT: Well - - -
PN434
MUNRO J: Unless the conduct didn't stop - by that, she meant resumed industrial action on the site on Monday morning.
PN435
MR HERBERT: And in so doing - - -
PN436
MUNRO J: And you say she didn't hear you because she said she had decided the point?
PN437
MR HERBERT: In so - no. No, Commissioner - your Honour, I'm sorry. In the transcript of 9 April, she stated that she was only then determining the application that had been made to her, based as it was then, under (6)(a) and (6)(b). She was only purporting to determine the application that was made before her. Subsequently, she then adjourned the matter and the matter was therefore still available to be called back on and it was asked to be called back on. Subsequently, because of events that occurred after the date - after 7 March - the applicant sought to rely on those subsequent events as justifying the issue of a certificate on another basis under the Act. And the Commission - - -
PN438
MUNRO J: They weren't subsequent events, were they?
PN439
MR HERBERT: Yes.
PN440
MUNRO J: Subsequent to 10 March?
PN441
MR HERBERT: No, subsequent to 7 March when we were then before the Commissioner asking the Commissioner for a certificate. We couldn't ask for a certificate under (6)(c) on 7 March because, despite what was said, they may have gone back to work on the Saturday or the Sunday, in which case we would never have become entitled under (6)(c). We didn't become entitled until 5pm on Sunday night, and notified the Commission on the Monday morning to re-list the matter to hear that. We can't ask for a certificate in prospect under (6)(c).
PN442
MUNRO J: I realise they invited this response, Mr Herbert, but - - -
PN443
MR HERBERT: Yes.
PN444
MUNRO J: - - - my question was: are you relying upon natural justice grounds? You say the Commission should have exercised the jurisdiction. That's clear enough.
PN445
MR HERBERT: Yes. And - - -
PN446
MUNRO J: Are you relying on a denial of natural justice?
PN447
MR HERBERT: In the sense that the Commission did not hear evidence that the applicant wished to call in order to demonstrate the existence of the relevant facts. That, of course, amounts - - -
PN448
MUNRO J: But what were the relevant facts that you are asserting - that there was work available on the Saturday?
PN449
MR HERBERT: That those foreshadowed by Mr Coonan from the bar table - that there was work available on the Saturday.
PN450
MUNRO J: Precisely.
PN451
MR HERBERT: And the pattern of working on the site and the other material was all gathered for the purposes of calling evidence in those proceedings as to the pattern of working on that site. I was asked by Commissioner Redmond earlier about that: was it usual to work on that site on a Saturday? And the answer I gave before stands on the basis of the material which was to be called.
PN452
MUNRO J: Yes.
PN453
MR HERBERT: And that the evidence that was proposed to be called went to the working routine of this site and the routine working on a Saturday on this site and the contractual documents that required that. All of that material was available to be called by the applicant to demonstrate - - -
PN454
MUNRO J: It wasn't available to be called then, I think, was it? Mr Coonan declined to call it, didn't he?
PN455
MR HERBERT: No. He asked for an adjournment of the matter for the purposes of bringing the proceedings forward and at a date when that evidence and those submissions could be made - - evidence could be called and submissions be made. He asked for the matter to be stood over for the purposes of - and that appears at paragraph 54 and 55.
PN456
The Commissioner asked about bringing evidence to that effect this afternoon. "Well, Commissioner, that is what we've registered the matter for", and then he asks, "Because there are still some ongoing discussions, could those proceedings" - that is the calling of evidence - "be deferred?" and they were, but when he did, then, as foreshadowed, ultimately ask for that hearing that he had mentioned at paragraph 54 and 55, the Commissioner declined to list the matter for that purpose, and the Commissioner was aware that it was for the purposes of hearing evidence as to whether the objective facts necessary to sustain such a plan had, in fact, occurred.
PN457
Your Honour, there are two other matters briefly. The first is the submission made by my learned friend to the effect that somehow or other a requirement to serve a lodged notice on particular parties in the Commission's rules means the notice is not lodged when it is lodged. Your Honour, that submission is just simply wrong. The Act stands as being the only requirement in this respect as to the triggering of the time that the 72 hours commences and that is when the document is received by the registry.
PN458
The only contentious point in the Transfield case and the other authorities to which my learned friend took the Commission was the question of when was it actually received by the registry. Was it received when it came over a fax machine in the middle of the night in an unmanned registry or is received when the registrar comes in the next morning and takes it off the machine and stamps it, and the conclusion is it was when a human, as it were, picks the document up and stamps it. That is when the document is received for the purposes of the commencement of the time. What happens after that in terms of service on other parties cannot affect that timing and those submissions should be rejected.
PN459
That point, of course, about service wasn't taken before the Commissioner and there is no natural justice point. Mr Price was there and took no issue about the proceedings going forward in the way they did.
PN460
Your Honour, the other matter that I would seek your Honour's indulgence to clear the air about is the issue that your Honour raised with me before about the resolution of particular issues by reference to arguments put to the CFMEU or arguments put to the Commission that there was no capacity for there to be an industrial dispute in relation to these matters by virtue of the fact that my client had no other employees. Your Honour, Mr Price articulates the position of the union in relation to that at paragraph 119 and it is a particular argument that was put which is, in my submission, absolutely correct in law and there were no erroneous or spurious submissions put to the Commission in that respect.
PN461
Mr Price took the view, in my submission correctly, that as this contractor - that's at paragraph 119:
PN462
This contractor has no employees, because they have no employees, we can't get protected action - or we won't pursue a protected action with this particular company.
PN463
That is the issue that was raised. If you don't have any employees, you cannot, by definition, take protective action in relation to this company. And the point was taken at 121 by myself:
PN464
Not taking protected action directly against my client is one thing. The memorandum of understanding goes a lot further than that. What is said in the memorandum of understanding goes - the issues go a lot further than the direct employees of my client -
PN465
and so on and so on.
PN466
The only point that was taken in relation to that matter, and the matter from which, by persuasion, we managed to deflect the union, was that they couldn't take protected industrial action against my client because there weren't any employees and that was germane to another issue. That wasn't to say, however, that they couldn't take a whole raft of other action, protected or - well, unprotected action and other issues, or take protected action against contractors, and the submission was never put ..... and certainly nothing that would cut across the principles - the High Court authorities to which your Honour earlier referred. It was a matter of persuasion in relation to protected industrial action only, and, in my submission, Mr Price rightly accepted that his organisation could not do that.
PN467
I am reminded your Honour asked me a question earlier as to whether the filing of the notice on the Thursday afternoon was by way of a tactic to ensure that the notice actually expired on the Sunday afternoon. The history of these proceedings, some of which are listed by the Commissioner in her determination, was that an undertaking was given by the unions to Commissioner Richards in conciliation proceedings that work would resume, and there was a moratorium on industrial action and work would resume on all sites on the Thursday. It did resume on all sites - and it is dealt with in the transcript. It resumed on all sites other than the site that was the subject of these proceedings and that failure to return to work in accordance with an undertaking given to Commissioner Richards.
PN468
Relevantly, I am instructed, there were some other sites where work didn't resume but, from my client's perspective, there was resumption on the vast majority of sites, certainly the principal sites. My client's site, though it was included within the ambit of the undertaking given to Commissioner Richards, there was, in fact, no resumption of work on Thursday as was indicated was to be the case and that the documents were lodged with the Commission as soon as it was discovered that there had been a failure to return to work.
PN469
The evidence before the Commissioner disclosed my client had four sites. There was a resumption on three of them in accordance with the undertaking and no resumption on this site. When that matter was discovered and instructions were given and documents were prepared, the documents were lodged in the Commission as soon as physically possible on the day that there was a failure to return to work, and there was no element of tactics or contrivance in relation to that.
PN470
Your Honour, it is a coincidence that the 72 hours as prescribed by the statute happened to expire on the Sunday. Unless there is anything further, those are my submissions.
PN471
MUNRO J: Yes, thank you, Mr Herbert. The Commission will reserve its decision in these matters.
ADJOURNED INDEFINITELY [12.30pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #CFMEU1 WRITTEN SUBMISSIONS RECEIVED IN THE COMMISSION ON 30 MAY PN25
EXHIBIT #SS1 SUBMISSION LODGED BY THE APPELLANT IN MATTER 1676 AND RECEIVED ON 21 MAY PN26
EXHIBIT #SS2 TWO-PAGE SUBMISSION PN31
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