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Australian Industrial Relations Commission Transcripts |
1273 
, Transcript of Proceedings [2005] AIRCTrans 2472 (8 December 2005)
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 13509-1
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C2005/ 1273
CSBP LIMITED
AND
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/ 1273 )
MELBOURNE
3.36PM, TUESDAY, 22 NOVEMBER 2005
Continued from 14/11/2005
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE
PN824
THE SENIOR DEPUTY PRESIDENT: I have commenced the last couple of hearings by enquiring about first of all progress the parties are
making in the resolution of the outstanding matters in dispute and, secondly, I have sought advice from the parties and particularly
the unions as to the extent to which an unequivocal commitment could be given in an endeavour to try to resolve the outstanding issues.
What I want to do today is first of all start with some update on progress toward the resolution of the outstanding matters in dispute.
Mr Caspersz, are you in a position to help me in that regard?
PN825
MR CASPERSZ: Thank you, your Honour. I understand, your Honour, that a letter dated 21 November was faxed to your Honour's chambers a short time ago. It is on the company's letterhead and it is addressed to each of the three unions. I don't know whether your Honour has received a copy of that as yet, but that effectively is an update of the position as it currently stands. Essentially, the matters unresolved appear to be the drug and alcohol policy at least certain aspects of that, also the rating scale relating to the performance review process. Both of those matters your Honour will recollect were at a stale mate at the stage of the proceedings last time we were before your Honour and that appears still to be the case.
PN826
There also seems to be some outstanding matters concerning safety issues which require further clarification from the LHMU. The matter of call outs and also some other matters under the heading Other minor issues are noted in this letter. Has your Honour received a copy of the letter as yet?
PN827
THE SENIOR DEPUTY PRESIDENT: No, I haven't, Mr Caspersz, it might have something to do with the fact that I am hear in Melbourne. It might take a little longer for that information to filter through.
PN828
MR CASPERSZ: Would it assist your Honour - - -
PN829
THE SENIOR DEPUTY PRESIDENT: No, I think you have probably given me an update with the exception that I have a couple of questions of you. Should I understand that there have been ongoing discussions on all of those issues over the last week since the last hearing?
PN830
MR CASPERSZ: There have been as I understand your Honour.
PN831
THE SENIOR DEPUTY PRESIDENT: And should I understand that in terms of the issues where the parties are at an impasse the issues are not simply left on the table under a folder heading too hard but rather the parties are looking at how they might resolve those issues including consideration of whether they might be referred to the Commission if appropriate.
PN832
MR CASPERSZ: Your Honour, I don't have any clear instructions on exactly what is happening with those stale mate issues if I can put it that way at this stage.
PN833
THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Mr Caspersz. Mr Edmonds, are you in a position to confirm or add anything to Mr Caspersz advice to me in that regard?
PN834
MR EDMONDS: Sir, people are hurriedly reading the correspondence behind you, sir.
PN835
THE SENIOR DEPUTY PRESIDENT: Look, if you want to take a moment to read it before you reply to me I am happy for you to do that, I won't adjourn the proceedings but I am happy for you to read it.
PN836
MR EDMONDS: Yes, sir. I received a copy of the correspondence, sir, but I haven't been engaging in those meetings and in those discussions. Mr Fiala is just reading him the letter at the moment, sir, I handed it to him when we came in, he is just reading it at the moment, sir, and I think we will be able to confirm shortly whether that, indeed, is an accurate reflection of the position.
PN837
THE SENIOR DEPUTY PRESIDENT: I might move on and deal with the other unions. Mr McLane, are you in a similar position to Mr Edmonds, are you also seeking instructions on that question?
PN838
MR McLANE: Yes, I am, sir, and I am just about to get instructions now.
PN839
THE SENIOR DEPUTY PRESIDENT: Very good. And Mr Nicholas?
PN840
MR NICHOLAS: I am in a similar position, your Honour. We did receive the letter but we haven't had a chance to properly go through the issues that are contained in it.
PN841
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, do the three union officials want to take a moment to confer with your relative delegates?
PN842
MR McLANE: Yes, sir.
PN843
MR NICHOLAS: Yes, sir.
PN844
MR McLANE: Thank you, sir.
PN845
THE SENIOR DEPUTY PRESIDENT: All right, as I said, I won't adjourn the proceedings but by all means shuffle around and consult as you feel the need to do so.
PN846
MR McLANE: Thank you, your Honour.
OFF THE RECORD
PN847
THE SENIOR DEPUTY PRESIDENT: Who is going to start the ball rolling from the union perspective?
PN848
MR CASPERSZ: I am sorry, your Honour, can I just clarify one thing before my friends address you.
PN849
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Caspersz.
PN850
MR CASPERSZ: In relation to the discussions, your Honour, can I just correct one thing that I said. I think I said that there had been discussions since last time we were before your Honour. That is incorrect; I am told that there has been correspondence between the parties in that intervening period, but no formal discussions as such but there has been liaison in relation to the matters by correspondence.
PN851
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, whilst you are receiving advice to that effect, did you manage to find out what the employer intends to do about the issues that might be in the unresolved category?
PN852
MR CASPERSZ: No, your Honour, not with any specificity at this stage.
PN853
THE SENIOR DEPUTY PRESIDENT: I see, all right, thank you. Is it Mr Edmonds or Mr Nicholas who is going to start the ball rolling?
PN854
MR NICHOLAS: Your Honour, it is Mr Nicholas here.
PN855
THE SENIOR DEPUTY PRESIDENT: Yes.
PN856
MR NICHOLAS: I propose to put a joint submission in relation to that letter on behalf of the three unions involved. Your Honour, our position is that, indeed, that letter does deal with a range of issues which are still unresolved. Now, while we might have a slightly different perspective on some of those issues, certainly our position is that the matters that are still unresolved and cannot be resolved through negotiation, there is agreement to proceed to resolution by arbitration for those matters.
PN857
So given that we have just received that letter we wouldn't propose to make submissions on the run as to each specific matter, all we would say is that certainly there still are unresolved issues but our intention is to proceed to try and resolve them through negotiation. If that is not possible in the short term, we would proceed to refer it to the Commission for arbitration through the grievance procedure.
PN858
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, thank you for that. Is it the intention to refer any of those issues to the Commission through the existing notification made which has been the subject of a conference before Commissioner Thatcher or is the intention to file a new application?
PN859
MR NICHOLAS: The LHMUs perspective on that, sir, would probably be to file our own application in relation to that. Whether or not it was joined to the proceedings already on foot would be another matter, but certainly the proceedings on foot is CSBP's application. We would want to make our own application to bring things up to date to where they are now.
PN860
THE SENIOR DEPUTY PRESIDENT: I see. And let me simply comment in that regard. The parties are all at liberty to do whatever they want to do in terms of making a further application. If, however, any of the parties consider that I could be of assistance to them, then I am happy for you to alert my office to any new application that is made in which case I will advise you very quickly whether I can help the parties in terms of a face to face visit or a conference in Perth or, alternatively, whether I can facilitate an early hearing or conference before a different member of the Commission.
PN861
MR NICHOLAS: Thank you, your Honour.
PN862
THE SENIOR DEPUTY PRESIDENT: All right. Now, the second issue that I wanted to raise with the parties and particularly with the union officials is whether or not the situation that was explained to me on 14 November when I sought advice from each of the three unions as to whether they were at that time able to give me a clear and explicit statement about the possibility of any further industrial action. At that point the unions advised that they were not able to do so, but they did each report from their various perspectives there was no industrial action that was likely.
PN863
The three union officials stopped short of being able to give me a commitment or an undertaking on behalf of their respective unions about the potential for any further industrial action, and I simply wondered whether that position had changed in any way, shape or form?
PN864
MR NICHOLAS: Your Honour, Mr Nicholas on behalf of the LHMU. The LHMUs position remains the same. We are not in a position to give any kind of undertaking and it remains the same that we just don't see the need for any undertaking at this point.
PN865
THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Is the same position held by your union, Mr Edmonds?
PN866
MR EDMONDS: Yes, sir, it is, sir.
PN867
THE SENIOR DEPUTY PRESIDENT: And Mr McLane?
PN868
MR McLANE: That is correct, sir, the position remains the same as outlined by Mr Nicholas.
PN869
THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Now, that takes me through to the primary issue for determination today. Mr Nicholas, I understand that there is one additional witness who you intend to call, and I have a witness statement and attached supporting material relative to a Mr Serl. Is that the case?
PN870
MR NICHOLAS: That is correct, your Honour. Your Honour, Mr McLane has approached me and asked if he could lead evidence from his witness before I proceed with Mr Serl given that his witness has another commitment this afternoon.
PN871
THE SENIOR DEPUTY PRESIDENT: Yes, I have no problem with that approach as long as you folks don't fight over it amongst yourselves. Mr McLane?
PN872
MR McLANE: Thank you, very much for that your Honour. I seek to call Mr Will Tracey and just by way of housekeeping, sir, I no longer propose to call Mr Sheldon Peterson as he is not available, so I only have the one witness, sir.
THE SENIOR DEPUTY PRESIDENT: Yes. I have a statement in relation to Mr Tracey.
<WILLIAM WARREN TRACEY, AFFIRMED [3.52PM]
<EXAMINATION-IN-CHIEF BY MR MCLANE
PN874
MR McLANE: Your Honour, could I just pass a witness statement to Mr Tracey and then retrieve it from him?
PN875
THE SENIOR DEPUTY PRESIDENT: You certainly can.
PN876
MR McLANE: Is that your witness statement, Mr Tracey? Do you stand by
it?---Yes, I do.
PN877
If I could take it back. Sir, I just ask that that could be tendered into evidence as it is an unsworn statement?
PN878
THE SENIOR DEPUTY PRESIDENT: Mr McLane, can I take it the document you have shown Mr Tracey consists of six numbered paragraphs?
MR McLANE: That is correct, sir.
EXHIBIT #AMWU1 STATEMENT OF WILLIAM WARREN TRACEY
PN880
MR CASPERSZ: Your Honour, can I just briefly note that I certainly have no objection to the document going into evidence, but I will make submissions concerning what reliability should be placed on it given the nature of the evidence contained in it particularly in relation to the opinion evidence.
PN881
THE SENIOR DEPUTY PRESIDENT: All right. We will get to that in a moment, thank you, Mr Caspersz. Mr McLane?
PN882
MR McLANE: Thank you, your Honour.
PN883
Mr Tracey, were you involved in the initial stoppage that gave rise to this application?---Yes, I was.
PN884
How long were you involved prior to that dispute occurring?---I have been on put with the Metal Workers for nearly ten weeks now. Probably involved at CSBP for about six weeks and I got involved after a series of meetings with my stewards, went to subsequent mass meetings at site with the issues that are in dispute between us. We became aware of that and it has been ongoing since that time.
PN885
These issues, did you raise them at all with the company?---We did over a series of meetings prior to mass meetings. We had mass meetings, went back and had discussions with the employer which ended up providing no result unfortunately. Had further meetings with the membership at which stage we discussed the response in a letter from the company basically stating that there be no issues. I also had discussions on the day of the dispute in, I think, it was the morning a period about the fact that, look, all we sought was some ongoing discussions in the view that some of these issues could be resolved.
**** WILLIAM WARREN TRACEY XN MR MCLANE
PN886
Can you identify the morning of when or the morning before what?---The actual morning that the workshop decided that they were going to withdraw their labour for 72 hours, Friday, I am not really sure of the date off the top of my head.
PN887
Did you become aware of an interim order issuing on that Friday, late?---Not until late, yes.
PN888
And where were you when you became aware of it?---Down at Kwinana.
PN889
Whereabouts at Kwinana?---Standing at the front gate of CSBP.
PN890
What happened after you were informed of the order?---We removed - we heard about it a little bit later then everyone else I - other meetings that afternoon and didn't arrive back there till late, removed all of the stuff from the protest line and then packed up the tent and all that sort of stuff and people went home.
PN891
What is happening now in relation to that industrial action?---There isn't any. I think there is an acceptance ..... particularly amongst my membership. People I have talked to in terms of their shop stewards that by and large a lot of the issues have been resolved. I suppose that Friday morning when the guys decided they were going to withdraw their labour it looked like it was going nowhere and was going to continue to go around in circles as it had done, in fact, once from - the employer was taken ..... resolved. I think after we got the timetable through the order and through the Commission proceedings that these issues had to be resolved and I think to the credit of both the company and the organisations involved that we started to move forward and resolve the issues. We resolved by and large most of the issues that involved my organisation, there was still some outstanding, the PRR and the drug and alcohol, but in terms of start times and in terms of discrimination against the shop steward and those sorts of things they were resolved. We still had a report back in one of the issues and I have had ongoing conversations with the manager of the site who rang me personally on one particular issue after we had met with the company in relation to start times and that sort of thing. We looked like we resolved that to the satisfaction at least that they wanted the only thing is I think the shop steward has had some family problems in terms of a death and he is off this week.
**** WILLIAM WARREN TRACEY XN MR MCLANE
PN892
How do you propose to deal with those issues that you are not able to resolve through negotiation?---We will follow the process under the agreement or at least the process that is outlined here and that is matters that can't be resolved through negotiation and some of that is still ongoing, I don't think the process of negotiation has stopped yet, but some of that is still ongoing, those issues that can't be resolved through negotiation the view that we have is that it will go to arbitration. I notice that there is one issue there that is perhaps going to go on foot and that may need to be put forward here to the others and that is in relation to the performance reviews where the company has stated they were just going to roll that out in any event, but the view would be issues that can't be resolved through the negotiation process will then go to arbitration.
PN893
Let's say they roll out that performance review, how do you propose to respond to that?---Make application to have the issue heard.
PN894
You are not going to engage in industrial action?---No, there is no intention, there has been discussion around taking industrial action at that site, in fact, even if we go back to last week's rally there are a lot of jobs in my area that did take action on that day. Some of the people involved in areas at CSBP gave notice the week before that they would like the time off and they got time and they got notice and permission to take the time off and further to that they actually went in and made sure that the contractors and all those sorts of people were right on the day just to make sure that work would flow properly and there was no outstanding work and that type of stuff, so there is no tension from my membership and I guess that is all I can speak on behalf of that there isn't any industrial action at all.
PN895
So is your evidence that there was no industrial action at CSBP on the actual day of action?---That is correct.
PN896
Is there any industrial action being threatened at the site currently?---No.
PN897
What is the likelihood of industrial action breaking out at this site in the near future?---I just don't think there is any likelihood, I mean, we have been given a timetable in which to try and resolve the issues. I think by and large that week after phone calls, after meetings over two days, by and large during that week we resolved the bulk of what was going on and at least those issues that were still in dispute we were able to narrow the definition of what was in dispute. After having done that we now know where we are apart and hopefully through a process of negotiation we can knock some of those issues off and then it goes to arbitration and follows the normal process.
**** WILLIAM WARREN TRACEY XN MR MCLANE
PN898
What is the history of industrial action on the site, are you able to tell us?---Not really, I spent the last five years - ..... from the meetings that we had that that it wasn't a site plagued with industrial action. Doesn't strike me as the sort of work - that sort of hard line, I mean, I deal with construction sites, maintenance industry and that sort of stuff. They were a far different type of workforce to that sort of crowd.
PN899
How do they compare to some of your other sites?---Well, I mean to their credit I think they give - well, they did attend to the issues that were on board, give it every chance to see if it could be resolved. I think there was a little anger in terms of the response to the issues that came out in writing that Friday morning, but that aside I think there, particularly from our point of view and the meetings that have been held on site, I think the ..... feel encouraged by the progress that was made the week after all this calmed down and the issues that were got through and the narrowing of the differences between us. I think that is to the credit of the process the Commission put in place.
PN900
In your view is there any likelihood of industrial action in the near future?---No.
PN901
The issues that you have spoken about that led to the industrial action, what sort of time have some of those been around for?---I suppose with some of it - look, I am a bit unable to say because a lot of it was before my time as I understand the issues around the drug and alcohol and PPR had been ongoing. A lot of them had there genesis in the offer of financial inducements to a particular part of the workforce but many of the safety issues and that were between the parties have been ongoing in terms of the inability to resolve them.
PN902
When you say the financial inducement to the workforce, what do you mean, what is that?---The $6000 that was offered to people out the front.
PN903
Is that the retention bonus?---That sort of thing, yes.
PN904
Did the AMWU have any involvement in that?---No.
PN905
Some of those other issues that gave rise to the action on that Friday, were they all issues that were raised or driven by the union?---No, no, no they were a response to the activities that had been going on on site. As I said, a lot of these issues I guess had their genesis prior to myself coming on board and I have tried to pick up and ..... with it. The issues in relation to ..... issues, drug and alcohol and the PRR involved there were some specifics from that respect.
**** WILLIAM WARREN TRACEY XN MR MCLANE
PN906
What is the state of the relationship between the AMWU and CSBP from your perspective?---Well, at this point in time, probably the best it has been since I have been there. There seems to be or there has been a willingness to try and resolve some of the issues. It is the first time I have been able to have a conversation with the manager of site, one to one, over the phone to try and see if we can't resolve some of the issues. I understand that he is busy and we weren't able to talk about what we had to talk about last week and unfortunately this week there has been - delegate ..... But we have managed to work through by and large all the issues that were between us. I think even the discrimination of the delegate and that has now fallen away given the apologies from the manager responsible and stuff, but I couldn't have countenanced an ability to have a personal conversation with a manager prior to what occurred last week.
PN907
What sort of a relationship do you want to have with CSBP?---The same relationship I want to have with now. If I can resolve issues I think a two way street, I mean, we work to try and resolve most of what goes on at the workplace level and then if we are unable to do that ..... but that is a relationship we seek .....
PN908
So are you committed to working towards maintaining that relationship?---Yes, we are.
PN909
And that is the position of the union you represent?---Yes.
PN910
I have no further questions, your Honour.
PN911
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, have you got any questions of this witness?
PN912
MR NICHOLAS: No questions, your Honour.
PN913
THE SENIOR DEPUTY PRESIDENT: Mr Edmonds.
PN914
MR EDMONDS: No, thank you, sir.
PN915
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz.
MR CASPERSZ: Thank you, your Honour.
<CROSS-EXAMINATION BY MR CASPERSZ [4.06PM]
PN917
MR CASPERSZ: Mr Tracey, as I understood your evidence, you said that your union has had no involvement in this issue of the $6000 retention bonus?---I have been involved in terms of was it paid to any of our members, no it wasn't.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN918
I'm sorry?---Involvement in terms of was it paid to any of our members, sorry, that is how I understood the question.
PN919
Because it is the case that your union has initiated a bargaining period under the Workplace Relations Act claiming an agreement in relation to this $6000 retention payment?---I think so, sir, the initiation of the bargaining period, I think, was before my time or around about the time of my involvement.
PN920
Isn't it the case that you have carriage of that particular matter?---Not from the point of view of the initiation of the bargaining period, no.
PN921
Your Honour, could the witness be shown a copy of a letter dated 27 September 2005, it is from the AMWU and it attaches a form R40, notice of initiation of bargaining period. I believe a copy was sent to the Commission prior to the initial proceedings on 4 November, your Honour.
PN922
THE SENIOR DEPUTY PRESIDENT: This will test me, Mr Caspersz.
PN923
MR CASPERSZ: I think it is actually marked as exhibit C2.
PN924
THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that document, Mr Caspersz?
PN925
MR CASPERSZ: I do, your Honour.
PN926
THE SENIOR DEPUTY PRESIDENT: I wonder if you might show it first of all to Mr McLane and then arrange for it to be shown to the witness.
PN927
MR CASPERSZ: That has been done your Honour.
PN928
THE SENIOR DEPUTY PRESIDENT: This is BP2005/1141?
PN929
MR CASPERSZ: That is correct, your Honour.
PN930
THE SENIOR DEPUTY PRESIDENT: Yes.
PN931
MR CASPERSZ: Have you seen a copy of that letter dated 27 September 2005 and the attached R40 before?---Not the - not the covering letter I haven't, but I have seen - I have seen the notice of the intention of bargaining is it the - the - although I have seen that, but not what detail of it.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN932
And in fact it is clear from that form R40 that your organisation is claiming an industrial agreement in relation to the $6000 retention bonus?---That is what the document does say, yes.
PN933
And is that covering letter which is under the hand of Dave McLane, industrial officer, which says that you have carriage of this
matter or you have carriage of that matter, is that correct or incorrect?---It is correct from the point of view
of - - -
PN934
Thank you.
PN935
THE WITNESS: I haven't finished answering the question.
PN936
MR CASPERSZ: Your representative can clarify anything later on with you, Mr Tracey.
PN937
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, I am going to allow the witness to continue answering that question. Mr Tracey?---It
is from the point of view - I came on probably a week and a half prior to that and the way our computer system works is all of the
areas of Mark Goldsworthy's were transferred across to myself by computer, but I probably didn't get down to or get involved with
CSB until some three or however many weeks it was after I started so in terms of the formal documentation that goes out internally
it would say that
Mr Tracey is now handling this area, that is how our computer system works. I had seen the document, but at the stage that this
went out formally I didn't have carriage of the issue, I hadn't been down there.
PN938
Yes. You can continue now Mr Caspersz, thank you.
PN939
MR CASPERSZ: Thank you, your Honour.
PN940
You referred to mass meetings at the site in your evidence. Those mass meetings were stop-work meetings, were they not?---Yes, there have been three from memory, yes, they were, they occurred well after start time at about 7 o'clock in the morning I think.
PN941
Can the witness be shown a copy of exhibit C4, please. Your Honour, we have a copy of it here.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN942
THE SENIOR DEPUTY PRESIDENT: Yes, certainly, Mr Caspersz.
PN943
Just take a minute to peruse that document, please, Mr Tracey?---Anything in particular, or do you want me to read it?
PN944
Are you familiar with that document?---I am familiar with it, yes.
PN945
You have seen that letter before?---Yes, I have.
PN946
In fact that is the letter you referring to in your evidence when you spoke about a letter being considered by membership at a meeting?---Yes, it is.
PN947
Can I take you to page 6 of that letter which should be under the heading Unlawful industrial action?---Yes.
PN948
And there is a heading there Unauthorised mass meetings?---Yes.
PN949
Isn't it correct that the mass meetings you were referring to were those meetings referred to under that part of the letter?---The things I would have been involved in would have been the last two I would say.
PN950
The last two meetings, that is, the meetings on 21 September and 25 October?
---Sorry, I have just had a look at the top paragraph - top sentence, I will just have to read this. I don't think I was at - I
think I may have been at one of them, but not the other.
PN951
You may have been at either of the meetings on 21 September or on 25 October, not at both?---There was one held on site by the guys themselves in response to one of the stewards being intimidated and victimised by a supervisor.
PN952
And it is correct that you were at one of those meetings but not the other, you are not sure which one though?---I am not sure. There was a meeting held one morning which I was at and there was another meeting held in response to discussion around a shop steward being victimised.
PN953
And it is correct to your knowledge that neither of those meetings were authorised by the company?---I know one wouldn't have been authorised and that was the one where the shop steward was victimised by the supervisor but in terms of the other one that I attended I had the understanding that those meetings were authorised, I mean, generally at sites that I am involved with if meetings aren't authorised we are not allowed on site. ..... on site if anything happened in the mess, unless I am confused with my dates, but that is as I understand it.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN954
Isn't it correct that there was no request by you to go onto the site at that time to the company?---I am not sure what you are saying?
PN955
Isn't it correct that in relation to the meeting which you attended you did not request permission from the company to go onto the site before you went on?---I don't make that request my shop steward does.
PN956
So it is correct that you personally did not make any such request?---I have never made such a request for any meetings.
PN957
That is correct that you never made such a request in relation to that date?---I have never made any requestion to go into meetings on that site.
PN958
So you would agree with me that it is correct, you did not make a request - - -
PN959
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, I think the witness has answered the question.
PN960
MR CASPERSZ: Can the witness be shown a copy, your Honour, of the section 170LW notice?
PN961
THE SENIOR DEPUTY PRESIDENT: What have I marked that as, Mr Caspersz. My ailing memory means I can't naturally identify an exhibit number for that one.
PN962
MR CASPERSZ: I don't have an exhibit number for that, sir, I assume you haven't marked it as yet, your Honour. This was a notice which was faxed through to the Commissioner, once again, before the initial proceedings as I understand.
PN963
THE SENIOR DEPUTY PRESIDENT: This was the catalyst for the conference convened by Commissioner Thatcher?
PN964
MR CASPERSZ: That is correct.
PN965
THE SENIOR DEPUTY PRESIDENT: Yes, you can certainly show the witness that document; I will keep looking for it in the meantime.
PN966
MR CASPERSZ: I think the number of the conference, your Honour, if it helps was C05/1242 up the top right hand corner. Can I proceed?
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN967
THE SENIOR DEPUTY PRESIDENT: You certainly can proceed, yes.
PN968
MR CASPERSZ: Thank you, your Honour.
PN969
Have you seen this document before?---I think I turned up at a conference where this was tabled, yes.
PN970
So you were involved in this conference, were you, before Commissioner Thatcher?---Yes, I do. I don't know if there was one before I got there, but I was at a conference where this tabled, yes.
PN971
And these were the sorts of issues, the matters in dispute, which is noted at points 1, 2 and 3 of this document; these were the sorts of issues which were the subject of that conference. I don't want details of what was discussed, I am just asking you to confirm whether they were the subject of that conference or not?---They were part of the issues that were subject of that conference, yes.
PN972
Your Honour, have you managed to find a copy of that document?
PN973
THE SENIOR DEPUTY PRESIDENT: No, but I am happy with you proceeding at this stage, Mr Caspersz.
PN974
MR CASPERSZ: Thank you, your Honour, Your Honour, it is a document of the Commission so it is probably not necessary to mark it as an exhibit, but would it assist if I did ask for it to be marked?
PN975
THE SENIOR DEPUTY PRESIDENT: It maybe in a different file to this one such that I don't have it, Mr Caspersz. Short of having it I am not going to be able to mark it.
PN976
MR CASPERSZ: Yes. We can arrange for another copy to be faxed through to your Honour later on if that is of assistance.
PN977
THE SENIOR DEPUTY PRESIDENT: Yes, well, it maybe of assistance. If there is no objection I will look at the document when I receive it, but I think it unlikely that I will have that document in time for this hearing so I don't intend to mark it at this stage.
PN978
MR CASPERSZ: Thank you, your Honour, I will simply proceed then.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN979
Mr Tracey, can I then confirm with you that it is correct, is it not, that the reason for the industrial action which commenced on 4 November and the further industrial action which was threatened for 72 hours after that was the frustration of the membership of all three unions concerning the company's position on outstanding issues, is that right?---Yes.
PN980
And I understand from other evidence that it was also in relation to Mr Gordon who is the company's managing director allegedly not meeting a commitment to report back to the unions in relation to the outstanding issues?---I think on the day that it was as you said the first thing was the company's response to the outstanding issues which at the time was no, no, no, no.
PN981
And those outstanding issues concerned things like, for example, the drug and alcohol policy, the details of that?---That was part of the issue, yes.
PN982
Concerned things like the rating scale in the PPR process?---That's correct.
PN983
Concerned things like the $6000 retention bonus?---Probably at that stage it probably wasn't. It was more to the issues that had been outlined in Gordon's letter of 3 November; it was tabled at that meeting that morning.
PN984
That is exhibit C4, which you still have in front of you?---If it is exhibit C4, yes.
PN985
And exhibit C4 in the second paragraph refers to that retention payment, does it not? In the second sentence after the reference to the performance review process? The second paragraph on page 1 of that letter?---Yes, that does say that, yes.
PN986
It is correct, is it not, that the industrial action which was taken and threatened was by members of each of the three unions?---That is correct.
PN987
And it was taken for the purpose of putting pressure on the company to agree to the demands by the unions and the membership?---It was taken out of frustration of the response to the issues that were ongoing and that was there was an attempt to try and resolve the issues and I think I said to management on that day, you just need to sit around with us and try and work our way through this and this goes away. It wasn't taken to try and shift them, it was taken that there inability to want to ..... those issues.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN988
It was taken in an attempt to bring the company to the point of agreement with the union concerning these outstanding issues, that is correct, isn't it?---It was taken to get the company to a point of negotiation around the issues.
PN989
And from your perspective it is correct, isn't it, that it didn't matter whether the industrial action continued whilst those discussions took place?---Of course ..... to the company that if you sit down and talk to us this afternoon for one, one and a half hours then my view would be the people will go back to work. We simply need the ability to sit down and work through these issues. We then got notified that we were in the Commission.
PN990
But isn't it correct that you had a conversation with a Mr Martelli on that day?
---Correct.
PN991
Who was in the presence of Mr Allen?---Yes.
PN992
And isn't it correct that in relation to questions from the company representatives about what were the issues you said words to the effect of, we are not talking about big issues here with manning, drug and alcohol policy, retention payment and a new agreement. If the company was willing to sit down this afternoon I am sure we can resolve the issues in an hour and a half, is the company will to do that. You said words to that effect?---Words to that effect, yes.
PN993
So you remember, amongst other things, mentioning the retention plan then?
---Yes.
PN994
So the industrial action was, amongst other things, in relation to the issue of the retention payment, was it not?---The industrial action was in relation to the company failing to negotiate with us on the issues and just simply saying no. It wasn't in respect to what the outcome would be, the fact that they weren't sitting down to discuss this issue with us. We got a piece of paper that basically says, we ain't talking that is the end of the issue and the frustration and the industrial action occurred because of an inability to continue to get this company around the table about those issues. As soon as we had a timetable in relation to - these issues were going to be fixed Tuesday, Wednesday, Thursday a lot of that anger and resentment went away and subsequent to that and the ability to sit down and try and resolve these issues and have an ongoing relationship with this company in relation to try and resolve the issues there is a much better feeling on site in terms of where we are at. The industrial action occurred out of frustration about this company's just simply telling us, we ain't fixing these issues.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN995
And you are aware, are you not, that the company's attitude to the issue of the $6000 retention payment is that the company will not agree to it, you are aware of that?---That is their position, yes.
PN996
That is right. You also recollection Mr Martelli saying words to the effect of, do you expect us to meet and talk about resolving these matters while you are still on strike and with the picket line out here?---That was, yes, that would have been.
PN997
And your reply to that was words to the effect, yes, why not? So you expected the company to have discussions notwithstanding the fact that industrial action had taken place and was threatened to take place for a further 72 hours in relation to these issues?---That is correct.
PN998
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, perhaps now is an opportune time for me to say if the document you were asking me to locate before is a form marked R47 was C2005/1242 in the top right hand corner then I now have the document courtesy of my erstwhile associate who found it in the file where I could not.
PN999
MR CASPERSZ: Thank you, your Honour. That is the document I was referring to. The copy I had which I believe was sent to your
Honour's chambers is
actually - - -
PN1000
THE SENIOR DEPUTY PRESIDENT: Are you looking that I mark that document at all or admit it?
MR CASPERSZ: Yes, your Honour, simply for convenience if nothing else.
EXHIBIT #C9 FORM R47 DATED 19/09/2005
PN1002
MR CASPERSZ: Your Honour, I was going to ask for the witness then to be shown a copy of the letter dated 21 November 2005 which was sent through to the Commission this morning and I have a copy for the witness and my friends. Your Honour still hasn't received a copy of this document I presume.
PN1003
THE SENIOR DEPUTY PRESIDENT: No. It is not likely that I will do so during this particular hearing.
PN1004
MR CASPERSZ: Thank you, your Honour.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN1005
Can I just confirm with you, Mr Tracey, you have had a chance to have a look at that letter at the outset of these proceedings and you are in general agreement with the contents of that letter?---Look, we only received - I know it is dated 21 November but it didn't come through out office until about - - -
PN1006
No, it wasn't sent until this morning?---Yes, 11.30 this morning an hour before proceedings. I have been out on another job so the first time I saw it was when I rolled up here at 12.30, obviously ..... to fax it to me.
PN1007
But it is correct that that letter generally states the situation as it currently
is?---Look, it does subject to, I mean, the drug and alcohol policy the draft four, it doesn't make mention in terms of the fact
that we have made quite clear that we reserve our rights in relation to that document about it being a new claim and jurisdiction
and those sorts of things.
PN1008
The parties have still not resolved outstanding issues in relation to the drug and alcohol policy, that is correct?---Well, it is an ongoing process.
PN1009
So they are still unresolved?---Yes, of course they are.
PN1010
And it is correct that the performance review process is still unresolved?---Well, it is but it causes me some concern to read this letter where we are going through a process where we have made it quite clear that we are willing to work through the process as outlined by the Commission and the company says quite clearly here that ..... occurs they are going to roll it out. That concerns me that for whatever reasons the company is going to jump outside the agreed process of the Commission. I mean, obviously our response to that will be to refer the matter outside of any other issues if that is the case. If the company's position is still they are just going to roll it out regardless of what occurs that concerns me. But then again we ..... their rights as per the process that has been laid down, and probably that will have to be referred, that I have got some concerns about, about what has happened to the PPR and the position there. The rest of it it seems to be as .....
PN1011
Is it also correct that your are aware that the company has not agreed to an extra $250 standby rate to ensure employees compliance with the terms of the certified agreement?---Look, that was just a - in relation to the $250 that was a - what they have at the moment is they have at best for people who are on call under the agreement what is known as chance availability and that is they are asking tradesman on weekends and after hours to make themselves available to attend work but they do on the basis of chance availability, that is, if you are around you come in if you are not you don't. Whereas we have explained that at the sites we are involved in if they want guaranteed certainty, if you want guaranteed certainty and that is for people to put their life on hold, that is, they don't drink on the weekends, they don't go away camping, they stay, they take a mobile phone and all that sort of stuff then the practice in the industry is either to put people on single time for the time they are off or increase the payments and what we are saying is surely - and the problem as it has been discussed with us is that they have problems with this concept of chance availability and that is having no certainty that people will 100 per cent be available and what we said is, well, there is a way around that, do what the rest of industry does.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN1012
I am sure there are reasons why the claim has been made, but my question was you are aware that the company has refused a claim for an extra $250 standby rate, that is correct?---No. No they didn't, at least this is the first time I have seen this. In terms of the discussions that I had as late as last week, in terms of one on one phone calls with the manager on site, we again raised the issue about chance availability and that sort of stuff, and it wasn't put to bed in terms of 100 per cent we won't go there, it was we need to have a look at what is going on. I said I understand that.
PN1013
So you are aware that the matter is still outstanding, it is unresolved, that is correct?---That is correct, yes.
PN1014
And that claim is made by your union on behalf of its members?---That claim is made by two unions, ourselves and the sparkies.
PN1015
The sparkies being the CEPU?---The CEPU, that is correct. We actually didn't make a claim for it, we just thought it might be a way of revolving, I mean, you have a look at particularly an industrial organiser to try and resolve issues the company has had. Fortunately, as an industrial organiser we have ..... across a range of industries and this is some of the ways that other companies have dealt with it.
PN1016
It is correct, is it not, Mr Tracey that you are authorised by the union to make your statement on the union's behalf?---That's correct.
PN1017
But you are not authorised to give to the Commission the sort of commitment which the Commission wanted from your union, is that correct?---Realistically you just can't give that commitment.
PN1018
It is correct then, is it not, that the union reserves its ability to take industrial action in the future?---That is not the position we are putting. The position we are putting is that we don't have an ability to ..... may happen. As it stands at the current time there is no intention to take industrial action. As it stands at the current time the position of our union is that we are more than happy with the way matters have been progressed since this issue went to the Commission, but can we sit there and say for every certain circumstance what is going - we just can't do that.
PN1019
Is it correct then that if your union and your members become frustrated once again that you reserve the right to take industrial action?---No, we have agreed to a process in terms of working through and, you know, to the credit of the process that was laid down trying to work through what the Commission has put in place, and as we are doing with PRR, if the company says they are going to ignore what has been put in place and just roll the process out anyway, then we will reserve out rights in relation to the process that has been laid down by the Commission and try and resolve it that way, and something that we didn't have on the table before but we think there is now an ability through the process that has been laid down by the Commission to resolve these issues despite the fact that the company may want to ignore it in relation to the performance review.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN1020
And by not giving the commitment is it not correct that your union is reserving the right to take industrial action if it becomes dissatisfied in the future?---No, no, that is not the reason why we can't give the commitment.
PN1021
Is it not correct that the only reason that the industrial action on 4 November and that threatened further industrial action of 72 hours did not take place was the section 127 orders of the Commission?---No, that is not the case. The reason that the industrial action occurred on that day was this company refusing - - -
PN1022
I'm sorry, Mr Tracey, my question was is it not correct - - -
PN1023
MR NICHOLAS: I have got to object, your Honour, Mr Caspersz has repeatedly interrupted this witness while he is trying to answer a question. I think really he should be given an opportunity - - -
PN1024
THE SENIOR DEPUTY PRESIDENT: I understand your objection, Mr Nicholas. Mr Caspersz, I am going to ask you to repeat the question. I understand you might have been trying to clarify your question, but I will then expect that the witness has the opportunity to answer that question.
PN1025
MR CASPERSZ: Thank you, your Honour.
PN1026
Is it not correct that by not giving the commitment your union reserves the right to take industrial action - - -
PN1027
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, I need to interrupt you again, I'm sorry. As I counted it you have got a triple negative in there. Can I get you to phrase the question slightly differently so as to make it absolutely clear what you are asking the witness to confirm or not.
PN1028
MR CASPERSZ: Thank you, your Honour. I think I already asked that question, your Honour, I was moving on to 4 November, but if I can just go back by way of clarification.
PN1029
It is correct, is it not, that your union is reserving the right to take industrial action if it becomes dissatisfied in the future, that's right?---That is not correct, no.
PN1030
And by not giving the commitment you reserve that right?---No, that is not why the commitment wasn't given. Our position is that we are very, very satisfied with the process that is going on with this Commission. The members on site are positive about what is occurring and we think that we are going to be able to resolve the issues if not through negotiation then through the processes outlined by the Commission. We simply cannot sit here and say that there will be no industrial action 100 per cent guaranteed when we just don't - we can't give that guarantee. It is not in terms of reserving our right to take industrial action should we not be satisfied with this process, it is simply saying we can't take account of all the things that may occur. You can't give a 100 per cent guarantee. Any official at any stage cannot possibly if they are true to themselves give a commitment that there will be no industrial action at any site. I will have sites that haven't had industrial action for 10 years, but can I guarantee 100 per cent that there won't be any at that site, no, I won't, do I think there will be any, no, there won't be any. I don't there will be any here, of course I don't, but can I give a commitment to the Commission 100 per cent that it's not going to happen, I can't do that. And it is us reserving our right to take action subject to these processes here, there is a process in place, and we think that will resolve what is going on.
**** WILLIAM WARREN TRACEY XXN MR CASPERSZ
PN1031
And it is right, isn't it, that the only reason that the industrial action started on 4 November which was threatened to continue for 72 hours did not occur was because the section 127 orders of the Commission?---That is correct, yes.
PN1032
Thank you, your Honour, no further questions.
THE SENIOR DEPUTY PRESIDENT: Mr McLane.
<RE-EXAMINATION BY MR MCLANE [4.36PM]
PN1034
MR McLANE: Only just one very briefly or one area I want to cover in re-examination, your Honour.
PN1035
Mr Tracey, Mr Caspersz took you to the situation where there was industrial action occurring and where you were saying to the management, let's talk about this and fix things up, do you recall that?---I do. What I put to management at that time was if you have the ability to sit around and discuss and get some ..... issues, my view would be that these people would go back to work this afternoon.
PN1036
Does our union have a policy of refusing to talk to employers when we are on strike?---No.
PN1037
In your experience how regular are resolutions found during strikes through discussion?---They have always been through discussion in my experience. And that was the position that we put this afternoon. If the company is willing to sit down and talk to us and work through and see some movement on these issues, unlike what they put to us in writing that day, then my view would be that this afternoon after a meeting of one, one and a half hours people would go back to work, they just needed to see some movement on the issues.
PN1038
Mr Caspersz final question was in relation to the 127 orders that were issued and your answer was, that I think there is a return
to work because of those
orders?---Yes.
PN1039
Now, jump forward to the current time, what would be the situation, well, no, look, I withdraw that, I am sorry.
PN1040
Sir, I have no further questions.
**** WILLIAM WARREN TRACEY RXN MR MCLANE
PN1041
THE SENIOR DEPUTY PRESIDENT: Mr Tracey, I have got one issue I want to raise with you and so that you know what will happen I will then extend the opportunity to each of the people at the bar table to follow up but on that issue alone. The issue that I want to raise with you relates to the retention bonus. As I understood your evidence it was to the effect that you are aware that the AMWU claim for a retention bonus had not been agreed to by CSBP. In the event that CSBP maintain that position and refuse the union's claim for a retention bonus, can you tell me what action your union would propose to take given that that matter would be unresolved?---Look, I am uncertain, sir, I guess we would avail ourselves of the process of the Commission. It is one of the issues I guess that is in the mix that we have been told we have a capacity to take to arbitration, sir. So it is one of probably six or seven issues still outstanding. I mean, we previously eight or ten pages of issues that were outstanding. We have managed to narrow down, I think, to some extent the issues that are in dispute between us and we ..... ourselves of the process to try and resolve them which it is arbitration.
PN1042
You told Mr McLane that in the event that matters were not agreed you would follow the certified agreement dispute resolution process such that you would refer unresolved issues to the Commission and that you had no intention of taking industrial action or mitigating in favour of industrial action. Should I take it that response applies equally to the issue of the retention bonus as it does to the other issues?---It does, sir. It applies to all the issues that are in dispute between us.
PN1043
Thank you. Perhaps starting with you first Mr McLane, do my questions occasion the need to ask the witness anything further. Don't feel obliged; I am just simply giving you that opportunity.
PN1044
MR McLANE: Thank you, sir, just one.
PN1045
Mr Tracey, how long have you been a union official?
PN1046
THE SENIOR DEPUTY PRESIDENT: Mr McLane what has that got to do with the issue that I raised, I am sorry, you will need to help me in that regard.
PN1047
MR McLANE: I was just doing it in two bites, sir.
PN1048
THE SENIOR DEPUTY PRESIDENT: Well, take a big bite and tell me how the second part relates to the question that I raised.
**** WILLIAM WARREN TRACEY RXN MR MCLANE
PN1049
MR McLANE: Mr Tracey, do you expect to resolve all the issues 100 per cent to the union's satisfaction?---No.
PN1050
Thank you, sir.
PN1051
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, do my questions occasion you the need to ask anything further?
PN1052
MR NICHOLAS: No, your Honour.
PN1053
THE SENIOR DEPUTY PRESIDENT: Mr Edmonds?
PN1054
MR EDMONDS: No, thank you, sir.
PN1055
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz?
PN1056
MR CASPERSZ: No, thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Tracey, thank you for your evidence, you are released.
<THE WITNESS WITHDREW [4.41PM]
PN1058
THE SENIOR DEPUTY PRESIDENT: Mr McLane, does that conclude the evidence you want to bring to the Commission in this matter?
PN1059
MR McLANE: Yes, your Honour, it does.
PN1060
THE SENIOR DEPUTY PRESIDENT: All right. We might go back to you then, Mr Nicholas.
MR NICHOLAS: Thank you, your Honour. I call Richard Serl.
<RICHARD SERL, SWORN [4.42PM]
PN1062
THE DEPUTY PRESIDENT: Mr Nicholas, you are free to ask the witness questions. I should tell you that I have received from your union a witness statement - proposed statement of Mr Serl together with an attachment RSI or an RS1.
MR NICHOLAS: Thank you, your Honour. I can inform you that I handed round a copy of that witness statement with RS1 attached to everyone here this morning.
<EXAMINATION-IN-CHIEF BY MR NICHOLAS [4.43PM]
PN1064
MR NICHOLAS: Mr Serl, you have been an employee of CSBP at its Kwinana site as a claims coordinator?---Mm.
PN1065
And you are also a delegate of LHMU?---I am.
PN1066
And you have been a delegate for around 15 years?---Around 15 years, yes.
PN1067
And you have prepared on your behalf a witness statement?---I have.
PN1068
Your Honour, I just show Mr Serl a copy of that witness statement that I provided the Commission this morning.
PN1069
That is the witness statement that you have had prepared, isn't it?---It is.
PN1070
And it consists of five pages finishing at paragraph 16E?---It does.
PN1071
And there is an attachment to it marked RS1?---Yes.
PN1072
And RS1 is a memorandum you sent to members of the union negotiating committee on 3 November 2005?---Yes, that is it.
PN1073
And the contents of that statement are true to the best of your knowledge and belief?---To the best of my knowledge, yes.
PN1074
And at paragraph 6 of your statement you make reference to what you call the 3 November letter?---I do.
PN1075
Your Honour, I will just hand a copy of C4 to the witness.
PN1076
And that letter that I have just handed to you is the same letter that you refer to as the 3 November letter?---Yes, it is.
PN1077
And at paragraph 12 of your statement you mention a 11 November letter?---Mm.
PN1078
Your Honour, I will just hand the witness a copy of C7.
PN1079
THE SENIOR DEPUTY PRESIDENT: Yes.
**** RICHARD SERL XN MR NICHOLAS
PN1080
MR NICHOLAS: And that letter I just handed you marked C7 is the same letter you refer to as the 3 November letter?---The 3 November letter?
PN1081
Sorry, as the 11 November letter?---It is.
PN1082
And at paragraph 16 of your witness statement you state that in your belief no strike action is probable in the foreseeable future?---Yes, I do state that and that is correct.
PN1083
And you still hold that to be true?---I do.
PN1084
And at paragraph 16(a) you stated that the strike referred on 4 November is only the second strike to take place at CSBP Kwinana in
the last 10 years?
---Approximately the last 10 years, yes.
PN1085
And when was the last time that strike action occurred?---I believe it was in April.
PN1086
And at that time did any of CSBPs Kwinana plant shut down to your knowledge?
---Not to my knowledge, no.
PN1087
And do you know the reason that wouldn't have occurred?---We allowed our staff to maintain a skeleton crew.
PN1088
And at paragraph 16(c) you say that the strike on 4 November was an isolated event. Is it your view that any outstanding issues between the LHMU and CSBP can be resolved through the grievance resolution procedure?---I firmly do believe that.
PN1089
And are you aware of any rumour that there might be some kind of industrial strike action to occur on Christmas Eve of this year?---Only the comment that Mr David Allen made in this room here. With regards to workforce, no, I am not aware of any comment like that.
PN1090
So no members of the LHMU have talked to you about that rumour?---None whatsoever.
Your Honour, I tender the witness statement and I have no further questions.
EXHIBIT #LHMU1 STATEMENT OF RICHARD SERL
**** RICHARD SERL XN MR NICHOLAS
PN1092
MR CASPERSZ: Your Honour, I would make the same observations regarding this statement concerning tendering evidence or evidence in belief and I will make submissions on that later on.
PN1093
THE SENIOR DEPUTY PRESIDENT: Yes, certainly, Mr Caspersz. Mr McLane, have you got any questions of this witness.
PN1094
MR McLANE: No, sir, I don't.
PN1095
THE SENIOR DEPUTY PRESIDENT: Mr Edmonds?
PN1096
MR EDMONDS: No, thank you, sir, I am right, thanks.
PN1097
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz?
MR CASPERSZ: Thank you, your Honour.
<CROSS-EXAMINATION BY MR CASPERSZ [4.49PM]
PN1099
MR CASPERSZ: Mr Serl, have you still got a copy of your witness statement handy to you?---I have.
PN1100
Can I take you to paragraph 16(a) on page 4?---16(a) did you say?
PN1101
16(a) on page 4. You say in the second sentence that:
PN1102
These have included negotiations for certified agreements and other matters in dispute.
PN1103
Do I take it from that that you were involved with the negotiations relating to the current certified agreement?---I have been, yes.
PN1104
Can I just ask you to identify this document?
PN1105
Your Honour, I am just handing my friends a copy of the CSBP Limited Certified Agreement.
PN1106
Just take a minute to peruse that. And that is the certified agreement you are looking at?---Different format, but, yes, it is.
**** RICHARD SERL XXN MR CASPERSZ
PN1107
That is the one?---I believe so.
PN1108
And you would have been aware then that this certified agreement contained a disputes resolution procedure which is at clause 19?---Yes.
PN1109
And you are aware about in general terms what the meaning of a disputes resolution procedure is?---Yes.
PN1110
It is actually called a grievance resolution procedure in this document?---Yes, it is.
PN1111
And it is correct, isn't it, that the grievance resolution procedure had not been invoked by your union prior to the industrial action on 4 November?---I don't understand your question.
PN1112
It is correct, is it not, that your union took industrial action on 4 November without going through that grievance resolution procedure?---Yes.
PN1113
It is also correct that this agreement came into operation it is supposed to operation from 1 October 2003 until 30 September 2006,
that is clause 5(i)?
---Mm.
PN1114
And you are aware of that?---Mm.
PN1115
You will have to say yes or no for the transcript?---Yes.
PN1116
Thank you. You said also in your evidence as far as you are aware there have only been two strikes at CSBP in the last 10 years?---To the best of my knowledge, yes.
PN1117
In addition to the industrial action on 4 November, the other one was in April of 2005, is that right?---I believe it was in April 2005, yes.
PN1118
So since becoming into operation of this agreement there have actually been two strikes at CSBP?---Yes.
PN1119
And there was also the threatened further 72 hour stoppage on 4 November?---I don't understand that, I mean, that was the second dispute.
PN1120
You say that is part of the second strike?---Yes.
**** RICHARD SERL XXN MR CASPERSZ
PN1121
Were you involved in the conference proceedings before the Commission in September under section 170LW?---I believe I was, yes.
PN1122
Can the witness be shown a copy of exhibit C9 your Honour?
PN1123
THE SENIOR DEPUTY PRESIDENT: Yes. That is the form R47.
PN1124
MR CASPERSZ: Yes, I am handing a copy to the witness and to my friends.
PN1125
Have you seen that document before?---Yes, I believe I have.
PN1126
And is it correct that the matters in dispute referred to at points 1, 2 and 3 of that document were generally the subject of that conference proceeding?---Yes.
PN1127
Have you still got a copy of exhibit C4 in front of you?---Yes, I have.
PN1128
Can I take you through to page 6 of that document under the heading Unlawful industrial action? It is correct, is not, that unauthorised stop-work meetings as detailed there took place on those dates to your knowledge?---Around 25 October?
PN1129
That is correct?---25 October I would say yes, but I am not so sure about 21 September.
PN1130
Can the witness be shown a copy of exhibit C8 that is the witness statement of Darryl Dent, your Honour? And I have got a clean copy I am handing to the witness through this document to my friends.
PN1131
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN1132
MR CASPERSZ: Were you in the Commission last week, Mr Serl, when Mr Dent gave evidence?---I was.
PN1133
You were here then when this witness tendered a particular statement. Can I take you through to the first attachment which is marked
DD1? There is reference to Richard Serl and I take it to be a reference to yourself in that email. Do you have any comment to make
in relation to that, do you agree with that summary there?
---I spoke to many people on the phone, I don't know who I spoke to and what I said.
**** RICHARD SERL XXN MR CASPERSZ
PN1134
Could you have said something to the effect of what is set out in the second sentence and the third sentence in that email - your Honour, have you got a copy of this document?
PN1135
THE SENIOR DEPUTY PRESIDENT: Yes, I have a copy of DD1.
PN1136
THE WITNESS: I may have made reference to the letter, but I don't think I made reference to a picket line.
PN1137
MR CASPERSZ: Can I take you through to DD7? I will give you a minute to peruse that. Once again, it refers to Richard Serl whom I take to be a reference to yourself. Is that a fair summary of your recollection of those events?---Again, I wouldn't have a clue, I mean, to spoke to many people on many times that day. I remember I visited many people but I can't remember exactly what I said.
PN1138
You were part of the picket line though, that is correct?---I was part of the communal protest line, yes.
PN1139
That was a line which was organised at the premises or at the entrance to the premises of CSBP?---It was the line that was formed at the entrance to CSBP. Yes.
PN1140
This is correct, is it not, that trucks were turned away by that line?---No. There was no truck turned away. People were asked to respect our position and if they chose to turn away, they turned away at their own choice.
PN1141
It's correct that trucks did turn away?---I believe some did. Yes.
PN1142
After discussions with persons on the picket line?---After some discussion with us. Yes.
PN1143
Can I take you to DD9; the reference to you once again there. Do you have a recollection of asking somebody to shut down the plant?---Vaguely. Yes.
PN1144
You also made mention of the fact that in the April strike there was no shutdown of plant because, I notice that it said, "We allowed the staff to maintain a skeleton crew"?---I did.
PN1145
When you say "we allowed", who are you referring to when you use the word we?---Employees.
**** RICHARD SERL XXN MR CASPERSZ
PN1146
So I take it then that it's correct if the employees had not allowed a skeleton crew then the plant could have shut down in the April strike?---I don't believe so, no, because we discussed it amongst ourselves and decided to keep the plants going.
PN1147
It's correct, isn't it, that no offer was made by employees for a skeleton crew to man the plant during the 72-hour stoppage starting on 4 November?---No, there was no offer made.
PN1148
In fact if I take you through to DD10, and particularly the first bullet point there, it is correct that you told the company that they would have to get non-union labour?---I'm not sure on that one at all. As I say, I spoke to many people. I can't recall every conversation.
PN1149
Can I take you back to your witness statement; have you still got a copy of that in front of you?---Somewhere.
PN1150
Have you still got a copy of exhibit C4 as well, that 3 November letter? Have you still got a copy of that in front of you? Can I take you to point 7 of your witness statement. In the first sentence of point 7 you state:
PN1151
Mr Gordon in the 3 November letter also refers to potential negotiations for terms and conditions of employment that would apply to the CSBP workforce in relation to a retention payment.
PN1152
I haven't been able to find that part of the C4 letter; can you point me to that part, please?---I may have made a mistake, I don't know. I'll check through. No, I can't.
PN1153
Did you read the 3 November letter before you made this witness statement?
---Bearing in mind I got this letter 10 minutes before the mass meeting, I had a brief read through it, yes. A brief read through
it.
PN1154
So you read the 3 November letter before you made this witness statement?
---Before the witness statement? No, I haven't seen it since the day of the action, actually.
PN1155
All right. So you had not refreshed your memory prior to making this witness statement?---Not on that one, no.
**** RICHARD SERL XXN MR CASPERSZ
PN1156
Would you accept then that at least as concerns the first sentence of point 7, that you need to correct that, because the 3 November letter does not refer to that?
PN1157
MR NICHOLAS: Your Honour, I would ask that the witness be given an opportunity to read through the letter that's referred to, before he answers that question.
PN1158
MR CASPERSZ: By all means, your Honour.
PN1159
THE SENIOR DEPUTY PRESIDENT: Yes, certainly.
PN1160
MR CASPERSZ: I invite the witness to do so.
PN1161
THE SENIOR DEPUTY PRESIDENT: Mr Merotti, take your time but I do want you to read through the document that's marked as - sorry, Mr Serl - marked as C4?---Ï still don't understand where I had it. Can you rephrase it?
PN1162
MR CASPERSZ: Can you point me to any part of the C4 letter as the basis of your statement in the first sentence of point 7?---No, I can't.
PN1163
You can't? Would you accept there's no part of the exhibit C4 which can form the basis of that statement?---The opening statement.
PN1164
Do you accept that the opening statement, that first sentence, is inaccurate?---Yes, I will accept that.
PN1165
Do you still have exhibit C9 in front of you; that was the notice under a dispute settlement procedure in an agreement. That's the one. At point 1 that refers to a $6000 retention payment; that's correct, isn't it?---It is. Yes.
PN1166
It's correct, as you set out in point 7 of your witness statement, that there was discussion between you and Mr Allen concerning that
$6000 retention payment?
---Yes.
PN1167
In fact you referred to Mr Allen's witness statement at paragraph 44 and you have corrected what Mr Allen has said there?---Yes.
PN1168
Your recollection is that at the end of the conversation with Mr Allen you said, by the way, Dave, I feel that $6000 was a slap in the face to all of us?---Correct.
**** RICHARD SERL XXN MR CASPERSZ
PN1169
That's referring to the retention and that was the end of the conversation which you were involved in, together with Mr Tracey as well as Mr Martelli?---That's correct.
PN1170
That was on 4 November?---Yes.
PN1171
That was where Mr Allen and Mr Martelli were trying to find out what the issues were, relating to the strike?---Yes.
PN1172
So it's correct that on 4 November some weeks after the conference proceedings in the Commission, that $6000 retention payment was still an issue as far as you were concerned?---As a personal statement.
PN1173
Yes?---That's exactly how it came out. As a personal statement.
PN1174
Yes?---And it's a thorn in my side.
PN1175
That's right, and as a personal statement you say, by the way, Dave, I felt that the $6000 was a slap in the face to all of us?---As a personal observation. My personal observation.
PN1176
But when you were referring to us, clearly you were speaking on behalf of your perception of what your members felt as well?---No, not at all. I was speaking on my behalf.
PN1177
Why would you have said us?---Because that's the way I felt.
PN1178
So you took it as an affront to your membership generally?---Generally.
PN1179
The industrial action on 4 November and what was threatened to continue for 72 hours after that was the frustration of your membership concerning outstanding issues with the company. Those outstanding issues being the sort of things in exhibit C4?---Yes.
PN1180
Which you said you read shortly before that meeting. In addition to that it, was the frustration at the alleged failure by Mr Gordon,
the managing director, to report back to the unions in line with a commitment which you say he gave?
---Yes.
**** RICHARD SERL XXN MR CASPERSZ
PN1181
The drug and alcohol policy; the details of that were an issue as far as the membership was concerned?--- There was some issues there. Yes.
PN1182
The rating scale and the PPR process was an issue?---Yes.
PN1183
Can I put it to you that the $6000 retention payment, at least in your mind, was still an issue as well?---To my mind it may have been an issue but it was never brought up at the meeting.
PN1184
At all material times you were representing your union at the workplace; is that right?---Yes.
PN1185
Your union was acting, together with the other unions, in relation to the industrial action; that's correct?---Correct.
PN1186
Your union, together with the other unions, were organising the membership to take the industrial action?---Yes.
PN1187
It's correct, is it not, that the only reason the industrial action did not continue was because of the section 127 orders made by the Commission?---That is correct.
PN1188
Can I take you to point 13 of your witness statement and direct your attention to the second sentence which you have written there or which has been written for you there. You state your understanding - and I'm paraphrasing - that unresolved matters will be resolved to the Industrial Commission for conciliation and arbitration through the grievance resolution procedure; that is, I take it, your understanding of what you think your union's position will be?---It is.
PN1189
You are aware that your union has refused to give a commitment not to take further unprotected industrial action?---I'm aware of it. Yes.
PN1190
Would you agree that your union is reserving the ability to take further industrial action?---I don't speak on behalf of my union.
PN1191
Can I take you to point 3 of your witness statement. You say there:
PN1192
I am authorised to make this statement on behalf of the LHMU in this matter.
PN1193
You would have to say - - -?---Yes.
**** RICHARD SERL XXN MR CASPERSZ
PN1194
Notwithstanding that, do you now say that you don't speak on behalf of your union?---Not on that issue. No.
PN1195
Not on that issue?---No.
PN1196
So you can't give evidence to the Commission in relation to whether your union is reserving the ability to take further industrial action?---No. I don't believe I have that right.
PN1197
Isn't it the case, Mr Serl, that if the membership becomes dissatisfied again, the threat of industrial action which was made on 4 November still remains?---No, we work - we believe that we are going down the right path now and we're back to the grievance procedure.
PN1198
Thank you, your Honour. No further questions.
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Nicholas.
<RE-EXAMINATION BY MR NICHOLAS [5.10PM]
PN1200
MR NICHOLAS: Thank you, your Honour.
PN1201
Mr Serl, I take you back to the letter of the 4th. My friend Mr Caspersz asked you questions in relation to your witness statement
and whether the reference you made to this letter, C4, in your witness statement was correct in that it referred to a statement on
behalf of Mr Gordon in relation to a retention payment?
---Mm.
PN1202
On the first page of that letter, C4, could I take you to the second paragraph and specifically the second sentence of that paragraph where it says:
PN1203
The issues regarding CSBP's drug and alcohol policy, employees' participation in the performance review process and extending a retention payment to all of the workforce were also subject to Commission proceedings in September 2005.
PN1204
?---Yes.
PN1205
Then can I take you to page 7 of that letter and there's a heading there, The Union's Conduct In Relation to CSBP Kwinana?---Yes.
**** RICHARD SERL RXN MR NICHOLAS
PN1206
The second paragraph under that which reads:
PN1207
As the unions would recall in about September 2005 CSBP indicated that, provided various issues could be worked through appropriately, CSBP was prepared to consider commencing discussions about the terms and conditions that would apply to CSBP workforce in the longer term. Notwithstanding that, the enterprise agreement would not expire until September 2006.
PN1208
?---Yes.
PN1209
Is it your understanding that that is a reference to discussions about - - -
PN1210
MR CASPERSZ: That's a leading question, your Honour, on an issue which the witness gave clear evidence in cross-examination. There was no ambiguity about it whatsoever.
PN1211
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, you will need to rephrase the question for me, please.
PN1212
MR NICHOLAS: Certainly, your Honour.
PN1213
THE SENIOR DEPUTY PRESIDENT: I am not stopping you asking about that issue but you need to rephrase the question.
PN1214
MR NICHOLAS: Certainly, your Honour.
PN1215
That reference there to CSBP being prepared to consider further discussions; in relation to what issues, was it your understanding, that those discussions would be around?---All issues.
PN1216
Are there any specific ones that spring to mind?---I believe the renegotiation of the EBA.
PN1217
Were there specific matters or are there specific matters that - sorry, your Honour. Could I just provide a glass of water to the witness?
PN1218
THE SENIOR DEPUTY PRESIDENT: Certainly, Mr Nicholas. Make sure it is a clean one.
**** RICHARD SERL RXN MR NICHOLAS
PN1219
MR CASPERSZ: Groundwater is an issue in Western Australia, your Honour.
PN1220
THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. Make sure it is not salty too?---That's better. Sorry.
PN1221
MR NICHOLAS: Certainly. That's fine. Now in relation to discussions about issues that may be included in a further certified agreement, are there any matters that you are aware the LHMU now wishes to be included in a further certified agreement?---I would say the outstanding issues.
PN1222
So the outstanding issues are the ones referred to in the letter?---It is, yes.
PN1223
They include the matter referred to on page 1 of the letter where it referred to the retention payment?---Certainly.
PN1224
You gave evidence before that the reason that industrial action was stopped on 4 November was because of the issuing of section 127 orders from the Commission?---I did.
PN1225
Is it your understanding now that if the orders were now not in place, that there would be any chance of industrial action commencing?
PN1226
MR CASPERSZ: It does not arise out of cross-examination, your Honour.
PN1227
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, how does that question arise out of the questions asked by Mr Caspersz?
PN1228
MR NICHOLAS: Your Honour, Mr Caspersz made reference to the issue of the orders and the fact that industrial action had ceased in relation to CSBP because of the orders that were made.
PN1229
THE SENIOR DEPUTY PRESIDENT: Yes, all right. You have convinced me. you can proceed with the question, Mr Nicholas.
PN1230
MR NICHOLAS: Thank you, your Honour.
PN1231
So Mr Serl, is it your understanding if today the section 127 orders that are in place now, if those orders were lifted, is it your understanding that there would be any industrial action that would be likely to occur?---There is no action pending and there is no likelihood of it pending.
**** RICHARD SERL RXN MR NICHOLAS
PN1232
Thank you, your Honour. No further questions.
PN1233
THE SENIOR DEPUTY PRESIDENT: Mr Serl, I have just got one issue that I want to raise with you. Again, I will extend to the people at the bar table the opportunity to follow up on that issue and that issue alone.
PN1234
Mr Serl, I understand that your union is pursuing a number of unresolved issues with CSBP?---Yes.
PN1235
That you have indicated that you are confident and believe the dispute resolution process now being followed has eliminated the potential for industrial action?---I do.
PN1236
Let me say if I took one of those issues as an example, such as the claim for a retention bonus, in the event that notwithstanding that steps might be taken to resolve that issue in accordance with the dispute resolution processes, with those steps culminating in some form of arbitration; if that issue remained unresolved what advice would you be providing to your members about the possibility of industrial action?---I'm not quite sure I understand, sir, but I believe - - -
PN1237
Let me rephrase it then, before you answer the question. If the issue of a retention bonus is not resolved to your satisfaction through
the dispute resolution process, even though it might go to arbitration; what will you be saying to your members?
---I'd be saying that if it's gone through arbitration it had been settled in that process.
PN1238
I see, and will you be suggesting that industrial action is something that your members may or may not take; what position will you adopt in relation to industrial action in that instance?---My stand on that is always the same, sir. I try to withdraw from industrial action wherever possible.
PN1239
Yes, all right. Thank you. Mr Nicholas, do my questions occasion you the need to ask anything further?
PN1240
MR NICHOLAS: Yes, your Honour, just one.
PN1241
Mr Serl, the position in the event that there was an arbitrated outcome in relation to, for example, the retention payment issue; if that was resolved by arbitration and orders of the Commission there would be no intention to breach any arbitrate - sorry, any arbitrated outcome from those proceedings, would there?---To the best of my knowledge no, there wouldn't.
**** RICHARD SERL RXN MR NICHOLAS
PN1242
Thank you. No further questions, your Honour.
PN1243
THE SENIOR DEPUTY PRESIDENT: Yes. Mr McLane?
PN1244
MR McLANE: No, sir, nothing thank you.
PN1245
THE SENIOR DEPUTY PRESIDENT: Mr Edmonds?
PN1246
MR EDMONDS: No thank you, sir.
PN1247
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz?
PN1248
MR CASPERSZ: No thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Serl, thank you for your evidence. You are released?---Thank you, sir.
<THE WITNESS WITHDREW [5.20PM]
PN1250
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, does that resolve or conclude the evidence you want to bring in this matter?
PN1251
MR NICHOLAS: Yes. Thank you, your Honour.
PN1252
THE SENIOR DEPUTY PRESIDENT: I see. Mr Edmonds?
PN1253
MR EDMONDS: Thank you, sir. We only have the one witness to call, sir, that's a Mr Joe Fiala. I emailed a witness statement to your chambers.
PN1254
THE SENIOR DEPUTY PRESIDENT: I have got it, thank you, Mr Edmonds.
PN1255
MR EDMONDS: On Sunday evening. I apologise for that being late, sir. It was completed as soon as I had the opportunity.
THE SENIOR DEPUTY PRESIDENT: I am glad I have got it. Thank you.
<JOE DANIEL FIALA, SWORN [5.21PM]
<EXAMINATION-IN-CHIEF BY MR EDMONDS
PN1257
MR EDMONDS: Mr Fiala, do you have a copy of your witness statement?
---Yes, I do.
PN1258
If I could take you to paragraph 11 of that statement?---Yes.
PN1259
You say in paragraph 11:
PN1260
Since that time I have been involved in a number of constructive meetings.
PN1261
How many meetings have you been involved with?---One. One.
PN1262
It's true, if I can take you to paragraph 10, that on or about 4 November the Industrial Relations Commission issued an interim order pursuant to section 127 of the Act?---Yes.
PN1263
Can you advise the Commission whether, in your view, that was why the industrial action that was occurring, whether that was the reason why that action ceased[sic]?---Yes.
PN1264
If no order were to be issued out of these proceedings or if the interim order were to be lifted, is it your view that industrial action would recommence?---No.
PN1265
Why wouldn't that industrial action recommence?---Because quite clearly as part of the interim order and subsequent discussion since the order, members are satisfied that there is a process in place to work out the outstanding disputed matters.
PN1266
Okay. In paragraph 12 of your statement you say you are aware that Mr David Allen has alleged that members of the AMWU and the CEPU are engaging in industrial action in relation to not responding to callouts and you deny that any industrial action is occurring; what is the basis upon which you say that industrial action is not occurring?---Because there's been no direction from the union to put any bans or limitations on and further, the enterprise agreement specifies that standby is a voluntary position and none of our members are briefed at ….. very position.
PN1267
Do you have any changes or any further evidence you wish to add to that statement?---No.
**** JOE DANIEL FIALA XN MR EDMONDS
PN1268
Otherwise is it true and correct?---Correct.
Thank you, sir. I would seek to tender that statement, sir.
EXHIBIT #CEPU1 STATEMENT OF JOE DANIEL FIALA
PN1270
MR CASPERSZ: I would make the same observation, your Honour, in relation to that statement as in relation to the other two statements.
PN1271
THE SENIOR DEPUTY PRESIDENT: Yes, I would expect that. Thank you, Mr Caspersz.
PN1272
MR CASPERSZ: Thank you, your Honour.
PN1273
MR EDMONDS: Thank you, sir. I have got no further questions for this witness, sir.
PN1274
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, have you got any questions of this witness?
PN1275
MR NICHOLAS: No thank you, your Honour.
PN1276
THE SENIOR DEPUTY PRESIDENT: Mr McLane?
PN1277
MR McLANE: No thank you, your Honour.
PN1278
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz?
MR CASPERSZ: Yes thank you, your Honour.
<CROSS-EXAMINATION BY MR CASPERSZ [5.25PM]
PN1280
MR CASPERSZ: Mr Fiala, you have heard the evidence concerning the section 170LW proceedings in the Commission in September of this year?---Yes.
PN1281
Were you involved in those proceedings yourself?---Yes.
PN1282
You would also be familiar with the certified agreement?---Yes.
PN1283
You have heard evidence of Mr Serl that he was familiar with the grievance resolution procedure?---Yes.
**** JOE DANIEL FIALA XXN MR CASPERSZ
PN1284
Of the certified agreement?---Yes.
PN1285
Would you also have been or would you also be familiar with that procedure?
---Overall, yes.
PN1286
You would have been familiar with that procedure prior to the industrial action on 4 November?---Yes.
PN1287
You would have been familiar with that procedure from the time the proceedings in the Commission took place, under the section 170LW conference?---Yes.
PN1288
You have heard evidence of other witnesses that the grievance resolution procedure was not invoked by the membership and the unions prior to the industrial action on 4 November; that's correct?---Not wholly. No.
PN1289
What is your evidence in relation to that?---Certainly my understanding is that there has been meetings prior to 4 November in respect of matters in dispute, such as the drug and alcohol policy, the PPR process et cetera and we were going through those resolution procedures up until the point of 4 November.
PN1290
So it's correct that, to the extent that the procedure was invoked as you have described it, it wasn't a satisfactory procedure for the membership as at 4 November?---Can I say that the mood reflected on 4 November was a reaction to the Keith Gordon letter, which was basically a case of, on certain issues, here is our position, we are proceeding with it, win, lose or draw and we felt at that point that the company actually breached the procedures because the DSP had not been exhausted at that point, to resolve the outstanding matters still in dispute
PN1291
It's correct, isn't it, that even though you say some aspects of the dispute resolution procedure had been used that the membership took industrial action on 4 November because they were not satisfied with the company's attitude?---We believed that the company breached their own resolution procedures by not negotiating further on the matters in dispute and when that was relayed back to the membership on November 4th, they took what action they saw fit to try and bring these issues to an end and a resolution and back on track.
PN1292
I will just ask you one more time so I can be clear on this; it's correct, isn't it, that the membership took industrial action on 4 November because they were dissatisfied with the company's position?---Correct.
**** JOE DANIEL FIALA XXN MR CASPERSZ
PN1293
The only reason that the - - -?---And their behaviours leading up to the morning of 4 November.
PN1294
The only reason that the industrial action which commenced on 4 November, which was threatened to continue for 72 hours after that, did not occur was the section 127 orders of the Commission?---Partly and also the fact that as a result of the Commission proceedings on 4 November, there was a suggested statement by the Commission on how - on a process on how to resolve the outstanding matters.
PN1295
Isn't it correct that, consistent with the conduct of the unions and the membership, if they become dissatisfied with the company's position in the future then that threat of industrial action will still remain?---No.
PN1296
You are aware of a notice of initiation of a bargaining period issued by your union in relation to the issue of the retention bonus?---Yes.
PN1297
I will just ask the witness to identify a copy of that document, your Honour. I am passing a clean copy to him through my friends and this was one of the documents which was sent to the Commission prior to the initial proceedings.
PN1298
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1299
MR CASPERSZ: Take a minute to peruse that document, please, Mr Fiala. It's marked at the top BP05/1140?---Yes, very familiar with it.
PN1300
That's the notice you were talking about?---Yes. I've been to registry myself.
Good. I tender that document.
EXHIBIT #C10 NOTICE OF INITIATION OF BARGAINING PERIOD ISSUED BY THE UNION
PN1302
MR CASPERSZ: Can I just go back one point; in relation to the industrial action on 4 November and thereafter, if I understood your evidence that a membership of three unions took that industrial action and it was organised for the purpose of getting the company to agree to the union's demands concerning these outstanding issues - - -?---To get them back to the table to negotiate and try and negotiate a successful outcome on the outstanding matters. Yes.
PN1303
My instructions are that the company has always been willing to discuss matters with the unions?---Certainly on the face of it, up to the point of the letter of Keith Gordon of 3 November, yes. That letter of 3 November to us said we're at the end point. We're going to go and amend the drug and alcohol policy" even though there was outstanding matters. The PPR process is going to continue with those matters, so we believed at that point that's when the negotiations ended.
**** JOE DANIEL FIALA XXN MR CASPERSZ
PN1304
It's correct then that at the point where you believed the negotiations had ended, you thought it was fit for industrial action to be engaged in?---In response to the company's industrial action against us by not following the dispute resolution procedure to its finality.
PN1305
Have you seen a copy of the letter dated 21 November 2005 which was sent to yourself, amongst others, earlier this morning?---Yes, I've only just received it. Yes.
PN1306
Did you get a chance to peruse it at the start of proceedings today - can I hand a copy to you?---Yes. Yes.
PN1307
On page 2, under the heading Performance Review Process?---Yes.
PN1308
You can see from there that CSBP intends to schedule performance review meetings for those employees who have not complied with PPI this week?---Yes.
PN1309
That's a matter which has not been resolved to the agreement - - -?---Correct and we believe that the company is still breaching the DSP by not allowing the matter in dispute to go to its finality to conciliation and arbitration, if necessary.
PN1310
Is it correct that, consistent with the past conduct of the membership and the unions, that industrial action is possible in relation to that issue?---No. Because if the company goes ahead and rolls out the PPRs we will be making an application to the Commission to put them in dispute and the matters that we believe that are in dispute relating to that matter.
PN1311
Can you give a commitment on behalf of your union that no industrial action will be taken in relation to that issue?---That issue, yes.
PN1312
In relation to any other issues?---Not unequivocally. No. Only - the only undertaking I can give is in relation to issues that are before this Commission, as it's currently constituted.
PN1313
So if I can just clarify this finally; on behalf of your union you can give an undertaking that no industrial action will be taken in relation to the matters the subject of these proceedings, the currently outstanding - - -?---Sorry, can you repeat that? I just - with the cough, I didn't hear it.
**** JOE DANIEL FIALA XXN MR CASPERSZ
PN1314
Can I just understand this; on behalf of your union you can give an undertaking to the Commission that no industrial action will be taken by your union and your members in relation to the current outstanding issues?---Correct. Yes. Provided that the processes, as agreed, will go through to its finality.
PN1315
If the process as agreed does not go through its finality do I take it, from what you have just said, that the undertaking will no longer apply?---We reserve our rights on that issue. I'm not saying that we will.
PN1316
You have got a view on what the process is; can I take you particularly to point 10 of your witness statement. Have you got that still?---Yes.
PN1317
I'm sorry, point 11?---Mm.
PN1318
I direct your attention to the second sentence?---Yes.
PN1319
Particularly the phrase, "and the company has agreed"; what do you base your understanding on there, or your awareness?---Certainly I haven't been privy to all the meetings since 4 November but certainly I understand that there's been agreements reached in terms of site safety matters. Some of the other peripheral matters, my understanding at this point is the major issues that may be heading towards conciliation and arbitration is the drug and alcohol policy, the PPR process. They're the sort of major issues that I believe that are outstanding that we need to resolve and I mean they're outlined pretty much in the letter dated 21 November.
PN1320
I'm asking you what do you base your stated awareness that the company has agreed that outstanding issues will be referred for conciliation
and arbitration?
---Well, that's my understanding, provided just from their conduct of the meeting since 4 November.
PN1321
Are you able to refer to any specific conversation?---There might be some other correspondence that also commits to that. However, we are concerned with the fact obviously about the PPRs, rolling them out without the matter in dispute going to the Commission, but as I've previously testified, should they go ahead and roll it out we'll be making an application to the Commission to have the matter dealt with by that forum.
PN1322
That's at least one matter of which you are aware that the company clearly has not agreed will go to arbitration?---I'm not saying that they haven't agreed. All they're saying is that they don't agree with our position and they're going to go ahead with it.
**** JOE DANIEL FIALA XXN MR CASPERSZ
PN1323
But in any event, you give an undertaking on behalf of your union that there will be no industrial action in relation to that matter - - -?---Yes, because I - - -
PN1324
- - - if the company ..... - - -?---- - -..... we will go to the Commission on that.
PN1325
My instructions are that, on behalf of the company, apart from complying with the statement of the Commission issued in these proceedings, there has been no express agreement to refer anything to arbitration; not from the company?---Not outside of those matters. No.
PN1326
That's right?---Yes.
PN1327
Thank you, your Honour. No further questions.
PN1328
THE SENIOR DEPUTY PRESIDENT: Mr Edmonds?
PN1329
MR EDMONDS: Thank you, sir. Nothing arises from those questions, sir.
THE SENIOR DEPUTY PRESIDENT: Mr Fiala, thank you for your evidence. You are released?---Thank you.
<THE WITNESS WITHDREW [5.37PM]
PN1331
THE SENIOR DEPUTY PRESIDENT: Mr Edmonds, does that conclude the evidence you want to bring in this matter?
PN1332
MR EDMONDS: Yes, it does, sir. Thank you, sir.
PN1333
THE SENIOR DEPUTY PRESIDENT: All right. Now perhaps before we move to closing addresses, I will not close the video link down but I am going to adjourn the matter for 5 minutes. We have been sitting for some time and some of us might want to go for a wander. I will reconvene these proceedings in about 5 minutes time.
PN1334
MR EDMONDS: Thank you, sir.
<SHORT ADJOURNMENT [5.37PM]
<RESUMED [5.49PM]
PN1335
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, are you in a position to close now?
PN1336
MR CASPERSZ: I am, your Honour. I was under the apprehension that my friends would close for the respondents. But I am in your Honour's hands as to how we go.
PN1337
THE SENIOR DEPUTY PRESIDENT: I see. Yes, my normal practice is to expect you to close as the applicant but if the parties are particularly upset over that and if over the last couple of years I have forgotten Western Australian eccentricity, then I am happy to conform.
PN1338
MR EDMONDS: No, sir. You have got it right, sir. Thank you.
PN1339
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz.
PN1340
MR CASPERSZ: In that event, your Honour, abandoning any Western Australia eccentricity, the applicant contends as follows in relation to the matters, your Honour. The substantive issue clearly is two-fold. The first whether the jurisdiction al prerequisites exist for the making of a final section 127 order. In particular, the applicant will contend that industrial action is threatened or probable as those words used in section 127(1). The second issue is, is the intervention of the Commission warranted even if the applicant is able to satisfy the Commission that the jurisdictional prerequisites are established.
PN1341
In relation to the first issue, your Honour, I refer briefly back to section 127(1). Your Honour is of course well familiar with respect to the terms of that provision. But the phrase which is used is that industrial action is happening or is threatened, impending or probable. Now it's not in issue that as at today's date industrial action is not happening. The applicant does not contend that there is evidence that industrial action is impending, however the applicant does contend that on the evidence it is open for the Commission to find that industrial action is threatened or probable, as those words are used in section 127(1).
PN1342
The other jurisdictional perquisites, particularly in relation to (c) and the existence of a certified agreement, in my submission, are not relevantly in issue. The industrial action, in particular, for the purposes of the orders which are being sought is industrial action in accordance with the definition in section 4(1), including a withdrawal of labour. In the applicant's contention, that also is open to be found on the evidence. Can I go directly to the evidence on that point and in relation to the body of evidence before the Commission, the applicant's contention is that the following findings are open and in fact should be made by the Commission. These findings go both to the issue of the jurisdictional prerequisites as well as the secondary issue of whether the Commission should exercise the discretion to make orders sought.
PN1343
First, it is open to find, your Honour, in the applicant's contention, that unprotected industrial action took place in a period of time leading up to the industrial action on 4 November. That took the form of unauthorised stop-work meetings, amongst other things; the sort of action being described in exhibit C4, which reference has been made to. At least on the evidence of a couple of the witnesses whom your Honour heard today, Mr Tracey and Mr Serl; at least one or more of those stop-work meetings were unauthorised. They followed a section 170LW application which had been made by the applicant to the Commission in September and that is exhibit C9. The matters in dispute appear from the body of that application and the witnesses this morning conceded that those matters at least were the subject of those discussions.
PN1344
Your Honour heard the evidence that those discussions were not fruitful in resolving those issues. Those issues included, amongst other things, the issue of the $6000 retention payment, the drug and alcohol policy and the PPR process. In relation to the $6000 retention payment, notices have been issued by two of the unions, the AMWU and the CEPU, and they are in evidence bargaining notices in relation to those issues. That is still, in the applicant's contention, clearly an unresolved matter. The applicant's position has been made clear in relation to that matter. Amongst other things, its contention is that the claim isn't breached on the no extra claims clause in the certified agreement, which I will come to shortly.
PN1345
It is open to find, in my submission your Honour, that the unprotected industrial action which took place commencing on 4 November 2005, was in relation to the issues in exhibit C4 including the issue of the $6000 retention payment. That's notwithstanding the evidence of Mr Serl this morning to the contrary. When asked to specify or identify the particular part of exhibit C4, which was the basis of the first sentence of point 7 of his witness statement, your Honour will recollect that Mr Serl was not able to. Some effort was made - I'm sorry, before I go on I should say that he also conceded in cross-examination that that statement was therefore inaccurate. In cross-examination his evidence was to the effect that he had only read exhibit C4 shortly before the meeting on 4 November 2005 and had not read it since then. So one wonders at why a statement like that was made without proper consideration being given to exhibit C4.
PN1346
Some effort was made in re-examination by my learned friend, Mr Nicholas, to try and get the witness to clarify that somewhat, but there was certainly no specific example pointed to by the witness in re-examination. The witness did not attempt to go back on his concession in cross-examination that that statement was inaccurate. When one takes that statement, together with the other statements in point 7 of Mr Serl's witness statement concerning the $6000 retention payment, the choice of language by Mr Serl himself was that at least for him it was an issue for all of us. He conceded in cross-examination that he considered it to be an affront to all of his membership. Mr Serl conceded that he was involved in organising industrial action in concert with the other unions. That's not in issue and it's open to find in all of the circumstances that, notwithstanding what Mr Serl says, the $6000 retention payment was an issue for the LHMU membership.
PN1347
In relation to the other two unions, in my submission clearly, especially given the notices initiating a bargaining period, it was an issue for those unions and their membership as well. It's open to find in accordance with that. The industrial action was threatened for a further 72 hours, your Honour. It's not in issue that the only reason why the threat of that industrial action was not made good and that industrial action did not occur was because of your Honour's interim section 127 orders. All of the witnesses on behalf of the unions appear to be saying to the Commission that since the making of those orders there have been fruitful discussions. As a result of those discussions the evidence given by the witnesses on behalf of the unions is that there is no current intention of taking further industrial action.
PN1348
I will come back in a short moment to further develop the applicant's contentions in relation to that evidence. Can I first say, however, that it's also clear that, notwithstanding the knowledge of the dispute resolution procedure in the certified agreement by at least Mr Serl, no effort was made to invoke the dispute resolution procedure at least as far as Mr Serl conceded in cross-examination. Mr Fiala gave evidence which was not completely consistent with Mr Serl's evidence. His evidence was that he thought some aspects of the dispute resolution procedure had been utilised beforehand. But he nonetheless conceded that the industrial action was taken because of dissatisfaction by the membership of the three unions with the position of the company; indicating, in my submission, that even on Mr Fiala's evidence the existence of the dispute resolution procedure of itself is not enough to deter the unions and their membership from engaging in unprotected industrial action, despite the fact that the company has engaged in discussions.
PN1349
In other words, even if the company engages in discussions, that is not of itself enough to deter the unions and their membership from engaging in unprotected industrial action if they are dissatisfied with the state of affairs. Further evidence of that, your Honour, is the concession by Mr Tracey in cross-examination that on 4 November he said words to the effect, to Mr Martelli, that it didn't matter to him that industrial action was taking place, that he thought that discussions could take place even whilst unprotected industrial action, in the applicant's contention, was taking place. So the applicant's contention is clearly that the mere fact of discussions themselves, and the mere fact that discussions have occurred since the making of the interim section 127 orders, is not sufficient evidence that the unions will not, together with their membership, engage in further unprotected industrial action.
PN1350
It's a fact, and it's not in dispute, that the certified agreement came into force on 1 October 2003 and it continues in force until 30 September 2006. It's also a fact, and it's conceded by Mr Serl, that there have only been two strikes according to Mr Serl in the last 10 years. Those strikes have taken place in the last 6 months. They have taken place in the context of a certified agreement which was concluded and came into effect in October 2003. The certified agreement is in evidence, your Honour. Can I take your Honour very briefly to it, to point out a couple of aspects of it which the applicant relies upon in particular. The clauses 1 and 2 are formal clauses, your Honour. Clause 2, in particular, is the arrangement clause. Clause 3 sets out aims and objectives of the agreement. This was in particular a document which Mr Serl had knowledge of and was involved in negotiating. Clause 3 Roman E talks about the parties' undertaking to work cooperatively to avoid conflict; refers to an orderly and constructive manner of the source of the conflict.
PN1351
Clause 19 is referred to in clause 3 Roman - I withdraw that - clause 3 paragraph E. Clause 19 is itself a grievance resolution procedure. In my submission it's quite clear that, notwithstanding a relatively recent agreement, commitments by the unions binding themselves and their membership to work cooperatively and to use the dispute resolution procedure in the agreement, notwithstanding all of that twice in the last 6 months there have been two strikes. In addition to that there has been other industrial action, at least in the form of unauthorised stop-work meetings. There are other issues concerning callouts. The evidence is not clear in relation to that but at least in relation to the strikes and the unauthorised mass meetings, in my submission, the evidence is clear that the dispute resolution procedure was not in use beforehand and in fact not sufficient to stop this unprotected industrial action in respect of those matters.
PN1352
Your Honour, the respondents have repeatedly refused to give the commitments which were sought by the Commission, except with one exception and that was Mr Fiala; and that was this morning in cross-examination. Notwithstanding the advice which the CEPUs representative gave to the Commission before the start of proceedings and at the commencement of proceedings this morning, Mr Fiala gave a commitment of sorts on behalf of his union in cross-examination today. The commitment which is sought by your Honour appears at paragraph 416 of the transcript. It was a commitment that the three unions each commit to not supporting or encouraging unprotected industrial action of any form. Mr Fiala was prepared, on behalf of his union, this morning to give a commitment that his union would not take industrial action in relation to any of the matters currently outstanding, which have been the subject of discussion in these proceedings. In my submission a much narrower commitment than that which your Honour was seeking as recorded in PN416.
PN1353
The other two unions clearly were not prepared to go even that far, namely as far as Mr Fiala was prepared to go. Mr Tracey, for
the reasons he explained in cross-examination, refused to give any commitment like that. Similarly, the other witnesses this morning,
Mr Serl - and gong back to the time we were last before your Honour, Mr O'Reilly similarly was not prepared to give a commitment
as sought by the Commission. There is evidence in relation to that in cross-examination, being at paragraph 777, where he said,
"I don't make those decisions for my union. I'm only the organiser. It comes from a higher body than me". Your Honour,
in relation to the intention to take industrial action, except for
Mr Fiala who was able to speak on behalf of his union, in my submission the witness statements and the evidence from the other witnesses
today and
Mr O'Reilly the last time we were here, goes no further than a personal belief that there will be no industrial action in the future.
PN1354
It is not necessary to make findings, in the applicant's contention, as to whether the witnesses are credible in stating that belief. Because even accepting that belief such as it is or such as it has been stated, it is not the evidence of the union; because neither of those witnesses except for Mr Fiala was prepared to say that they could speak on behalf of the union and give the commitment sought by the Commission. In relation to Mr O'Reilly he was, to be fair to him, even more circumspect in relation to the probability of industrial action. His evidence in examination by my learned friend, Mr Nicholas, at paragraph 726 of the transcript, Mr Nicholas asked the question:
PN1355
In your view is it probable that industrial action would occur ..... in the future?
PN1356
and his answer was:
PN1357
On these matters, no.
PN1358
So as far as Mr O'Reilly was concerned, even to the extent that he was stating a personal belief, in my submission it was very circumspect and restricted to these matters only and certainly much narrower than the scope of the commitment which the Commission had put to his union, as well as the other unions, which the Commission was seeking from those unions. Your Honour, it's also clear, in my submission, from the evidence particularly of Mr O'Reilly and Mr Serl in cross-examination this morning that when industrial action does take place the employer must rely upon the goodwill of the unions to provide skeleton crews. Mr Serl's evidence was we allowed skeleton crews in April and conceded, in my submission, that in the absence of any agreement then the skeleton crew would not be there to operate the company's plant; and in fact conceded that there was no offer of a skeleton crew in relation to the industrial action on 4 November and the threatened further 72-hour stoppage.
PN1359
The evidence is clear about the near immediate prejudice to the company, the loss and damage to the company. None of that has been challenged in any way, in my submission, by the unions, in the event of industrial action. Also there is the evidence concerning third parties and the impact upon them, including the Water Corporation and the issues concerning groundwater. Your Honour, the applicant's contention is that given the background to this, given the disregard which the unions have had for the dispute resolution procedure, even accepting Mr Fiala's evidence; given the fact that the unions have taken industrial action because they feel dissatisfied with the state of affairs after the dispute resolution procedure has been invoked, then the inability or refusal of the unions to give the commitments sought by the Commission grounds an inference that the unions reserve the right to take further industrial action.
PN1360
Except for the CEPU, where there is a clear commitment from Mr Fiala that they won't take further industrial action in relation to these matters, but even in relation to the CEPU it is open to find that the CEPU reserves the right, as Mr Fiala said in cross-examination, in my submission, to take industrial action in relation to other matters. The company's contention is that in all of those circumstances the threat of industrial action which was made on 4 November, and which was averted by the section 127 interim orders of the Commission, remains a live threat in the event that section 127 orders are not made. Further and alternatively it is the applicant's contention that the fact of it is clearly a stalemate in relation to some of the current outstanding issues, such as the drug and alcohol policy, the PPR process, the $250 issue, the retention money issue; are all issues which were part of the matrix of issues in relation to which industrial action was taken and are unresolved; and therefore increase the probability of further industrial action being taken in relation to those matters.
PN1361
As I say, apart from the evidence of Mr Fiala who gave the undertaking on behalf of his union that no industrial action would be taken in relation to those matters, the personal belief of the other witnesses who came to give evidence supposedly on behalf of their unions, is only their personal belief. Whilst it might be well intentioned personally, cannot in my submission count as the unions' intention and therefore it is open to find that because of the outstanding nature of issues such as that, further industrial action is probable. In my submission in all of those circumstances the Commission can be satisfied that it appears to the Commission that industrial action is threatened and probable. In my submission one does not need to get into the niceties of balance of probabilities or trying to analyse percentages or anything like that. The words are just simple words in section 127(1) and on the evidence before the Commission it's open to find, and in my submission the Commission should find, that it appears to the Commission that industrial action is threatened for the reasons that I have submitted; further and alternatively that it is probable.
PN1362
If the Commission accepts the applicant's contentions in relation to the fact that the jurisdictional prerequisites have been satisfied, then the applicant contends that the Commission should exercise its discretion to make final orders, essentially for five reasons. First, there is a dispute resolution procedure in the agreement which has not been followed, which is part of an instrument of the Commission. There are other provisions in the Act which confer rights upon parties to enforce breaches of a certified agreement such as the one which is the subject of these proceedings. But that of itself should not, in my submission, deter the Commission from taking into account the fact of the dispute resolution procedure and the fact that it has not, in my submission, been complied with by the unions and their membership; taking into account the totality of the evidence. That was recognised as much by his Honour Ross VP in the Grocon case at point 41 - paragraph 41(ii) in particular, where his Honour - I think it was (ii) where his Honour takes into account the fact that the disputes resolution procedure in that agreement had too not been complied with.
PN1363
I anticipate from the outline of submissions filed by my friend, Mr McLane, that one of the things which is put against the company in these proceedings is that the company does not come to the Commission with clean hands in relation to the orders which it seeks. I anticipate that one of the things that the AMWU says there is that somehow the company has acted in a manner which is at odds with the Commission exercising its discretion in favour of the company. The conduct of the parties is another issue which can be taken into account. That's also recognised by his Honour in the Grocon case; paragraphs 47 to 48 in particular. In my submission in this particular matter though it's clear that the applicant's conduct, whilst it may not have been satisfactory to the unions and their membership, and clearly was not satisfactory to the unions and their membership, does not amount to conduct which means that the company has got unclean hands; in the sense that it has acted in a manner which is anything less than proper or within its legal rights.
PN1364
In fact, the only evidence before the Commission in this matter of any formal attempt to try and conciliate outstanding matters, including
the ones which remain outstanding such as the drug and alcohol policy and the retention payment, is the section 170LW application
which was initiated by the company. Despite what
Mr Fiala says in his evidence about the dispute resolution procedure having been invoked, he says, by the union membership, none
of that was put to Mr Allen in cross-examination as I recollect; Mr Allen being the primary witness on behalf of the company, his
statement being exhibit C6. No documentation was put by Mr Fiala, his union or any other unions, which demonstrates in any way that
they tried to use the dispute resolution procedure. So the only conduct which the company - I withdraw that.
PN1365
The only conduct which the company can somehow or other be accused of in terms of a clean hands argument is the fact that it did not agree to what the unions wanted, and perhaps one other thing, Your Honour; the fact that its managing director did not get back to the unions in accordance with an alleged commitment to get back to them within the time which was said to have been the set time; but got back to them nevertheless in exhibit C4. Okay, even if you accept the unions' argument that there was a commitment - and that's not conceded by the company - by Mr Gordon, the fact of the matter is that exhibit C4 was available to the unions and the employees before the meeting on 4 November; Mr Serl, in cross-examination today, I think conceded that. Not only the industrial action commenced on 4 November but the threat of further industrial action of a further 72 hours, with no offer of a skeleton crew, was made at that time.
PN1366
In the company's contention, if there is any application for a clean hands doctrine, it should operate against the unions and not
the company. Insofar as, even on
Mr Fiala's evidence, they took it into their own hands to take unprotected industrial action on 4 November, despite the dispute
resolution procedure in the certified agreement.
PN1367
The next point after consideration of the dispute resolution procedure and the conduct of the parties, your Honour, which was considered by his Honour Ross VP in the Grocon case, was the issue of section 170MN(1) of the Act. Your Honour will be familiar once again with respect to that provision. There's no issue here that the industrial action which commenced on 4 November and which was threatened for a further 72 hours was unprotected action, but section 170MN(1) is still relevant, in my submission, for these reasons. The certified agreement which I've already taken your Honour to is, in my submission, a comprehensive agreement and that's quite apparent.
PN1368
I've already noted, for example, the arrangement clause. It covers a wide variety of matters. It's very detailed in terms of things like, for example hours. There's reference to contract of employment, training and development, a number of things, your Honour, including allowances, bonuses, the grievance resolution procedure I've already referred to. I would invite your Honour to give consideration to it, but amongst other things also it refers to this intender document which I must admit in my limited experience of these documents that I've seen, your Honour, I haven't seen one like this before. But that cross references back to clause 4(I) of the document, the intender document.
PN1369
It serves as quite a detailed document and amongst other things creates this concept of an agreement committee which seems to be some sort of a consultative committee which is involved in the application of the agreement. So it's quite a comprehensive document. In addition to that, your Honour, in my submission it's got a very comprehensive note for claims provision in clause 4(v) of the agreement. This sentence is as wide as one could get, in my submission.
PN1370
It states this agreement sets out all claims by the respondent unions for the life of the agreement.
PN1371
Quite clearly that refers to the life of the agreement being the term set out in clause 5(i). It goes on to say:
PN1372
No further claims will be brought about any additional terms or conditions of employment during the life of the agreement.
PN1373
Now, read in combination with the already apparent comprehensive nature of this certified agreement, in my submission, your Honour, it's a situation which was similar to the one analysed by his Honour Merkle J in a decision in the Federal Court National Fleet Network Pty Ltd v AFMEPKIU 2005 FCA 917. If I can refer your Honour and invite your Honour particularly to have regard to what his Honour Merkle J said at paragraph 22 and 23 and paragraph 30. In effect the situation there, once again, was the issue of whether section 170MN(1) had been breached by conduct which had been engaged in by unions.
PN1374
And on an analysis of the industrial agreement in that matter his Honour Merkle J came to the view that it was so comprehensive including taking into account the "with" of the no extra claims clause such that the claims which were being made by the unions in that matter were in breach of - I withdraw that - were matters relating to the employment of employees as contemplated in section 170MN(1) and therefore in accordance with the exception to the Emwest principle were in breach of 170MN(1). The Emwest principle, your Honour would be aware, was the one which flowed from the decision of her Honour Kenny J in Emwest Products Pty Ltd v AFMEPKIU [2002] FCA 61; 117 FCR 588.
PN1375
Her Honour's reasoning, particularly at paragraphs 48-55 in that decision, her Honour's reasoning being upheld on appeal in AIG v AFMEPKIU [2003] FCAFC 183; 2003 130 FCR 524, particularly at paragraph 37 which is page 535, the Emwest principle, in my submission, in effect being that section 170MN(1) prohibits industrial action in relation to claims which are alerted to the matters dealt with in the industrial agreement. And the exception is if the industrial agreement is so wide, taking into account the terms and conditions dealt with and the no extra claims clause, that any other claim by the union would be in breach of the no extra claims clause then section 170MN(1) is breached. In my submission for the reasons I've submitted that is the case here, your Honour.
PN1376
If that is accepted then in my submission a number of the matters in relation to which industrial action has been taken and threatened
would constitute a breach of section 170MN(1). For example, the retention payment. The issue of payments is clearly dealt with
in the agreement. That of itself is another issue which, in my submission, the Commission will take into account in exercising its
discretion. The next point, your Honour, is in relation to section 170NC(1) of the Act. Once again your Honour is, with respect,
well familiar with that provision.
My submission on behalf of the applicant in relation to this matter is as follows.
PN1377
Similar to his Honour Ross VP's reasoning in Grocon in my submission one can
take into account whether the industrial action which has taken place and which
is threatened is potentially in breach of other provisions, such as section 170NC. The reason I say that is particular in relation
to the retention pay issue, the $6000 bonus. There is evidence there of the notice of initiation of bargaining period by two of
the unions, in my submission evidence that it was an issue for the third
..... as well. And the inference can be drawn that, as least as far as the AMWU and the CEPU is concerned, that industrial action
was at least, amongst other things, in relation to trying to get an agreement with the company concerned in that retention bonus.
That is the only matter referred to in the notice initiating bargaining period.
PN1378
And it's clear that the action was unprotected and that can be taken into account in exercising the discretion. Finally, your Honour, in relation to the prejudice and that's the final submission I would make in relation to why the Commission should exercise its discretion to make the final order sought, as I've already submitted there's no real issue concerning the prejudice which will be suffered by the respondent and third parties if - I withdraw that - by the applicant and third parties if industrial action is taken and loss of damage would be of a substantial nature and amount. It's not an issue either, your Honour, that there is absolutely no prejudice to any of the unions or any of their members if no industrial action is taking place.
PN1379
The evidence of that flows from the mouths of the union witnesses themselves. Mr O'Reilly the last time around and the witnesses this morning, where they all without fail seemed to be saying that the discussions which have taken place since the making of the section 127 order had been constructed and if they do not resolve outstanding issues then other processes of the Commission, be it formal conciliation and or arbitration would be invoked by the unions. Now, in light of that, in my submission given the past conduct of the unions and their members it can not be said that nay prejudice will be suffered by them if consistent with the dispute resolution procedure.
PN1380
They are obliged by a final section 127 order not to take any further unprotected industrial action in line with the sort of commitment that your Honour sought from them in the first place. In my submission any further industrial action would be legitimate as it has been. The threat is there. It's apparent that the interim section 127 orders have had the effect preventing industrial action so far. It's had a salutary effect. In my submission not to make a final order now would allow the unions and the members to take unprotected industrial action and really to walk away if they feel dissatisfied with where things have got to from a process which has already on their own evidence seen constructive results.
PN1381
In my submission the Commission should not wait for any of the currents. The jurisdictional pre-requisites are there and the discretion should be exercised. Can your Honour just bear with my one moment please.
PN1382
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN1383
MR CASPERSZ: Your Honour, unless I can be of further assistance those are the submissions on behalf of the applicant.
PN1384
THE SENIOR DEPUTY PRESIDENT: Mr Caspersz, the only issue that I raise with you is simply for housekeeping nature. During the last short adjournment I did manage to obtain a copy of that letter of 21 November 2005. Unless it becomes an issue over the rest of these proceedings or indeed other proceedings it might be best if I marked that document.
PN1385
MR CASPERSZ: I'd be grateful if your Honour would.
THE SENIOR DEPUTY PRESIDENT: And I shall do so.
EXHIBIT #C11 CORRESPONDENCE TO LHMWU, AMWU AND CEPU DATED 21/11/2005
PN1387
MR CASPERSZ: Yes. Thank you, your Honour. I forgot one final submission your Honour, before I do conclude finally. It's also a housekeeping matter, but I trust that your Honour has got a copy of the minute of final orders which was sent to your Honour the last time or before the last time?
PN1388
THE SENIOR DEPUTY PRESIDENT: Yes, I have that.
PN1389
MR CASPERSZ: Your Honour, the only final submission I would make in relation to that is in relation to point 6, the term and date
of effect of that order. Your Honour can see that it's sought that the final order remain in force until
30 September 2006 which is the nominal expiry date of a certified agreement. That is a lot of time, your Honour, and the applicant
concedes that. But particularly given the evidence of two strikes in the last six months and the currency of this industrial agreement
and the other circumstances, the applicant contends that it can be justified, it is justified.
PN1390
Having said that clearly it is for your Honour, if your Honour is moved by the applicant's motion, to make an order to consider what the appropriate duration of the order should be taking into account the threat to the probability of further industrial action and the prejudice to the applicant and others from any industrial action and the current discussions and processes available to the Commission. Unless your Honour requires .....
PN1391
THE SENIOR DEPUTY PRESIDENT: No. Thank you, Mr Caspersz.
Mr Edmonds, are you going to go next or have you folks worked out an appropriate order?
PN1392
MR EDMONDS: I believe it's Mr Nicholas, Mr McLane and finally myself, sir.
PN1393
THE SENIOR DEPUTY PRESIDENT: I see. Mr Nicholas.
PN1394
MR NICHOLAS: Thank you, your Honour. I propose to deal with the LHMUs submissions in two parts. Firstly dealing with jurisdiction of the Commission to make any order under section 127 and then proceed to deal with questions as to if there is found to be jurisdiction, whether the discretion should be exercised in favour of the applicant. In relation to the jurisdictional aspect, it's the LHMUs submission that there is no jurisdiction under section 127(1) for the Commission to make an order in this matter. It's our submission that the applicant bears the onus to establish to the Commission's satisfaction that there is the jurisdictional prerequisites in effect and our submission is that the applicant just has not made a sufficient case out, on even a prima face basis.
PN1395
I'd like to come back in a moment to the question of what sort of level of onus is appropriate in this case, but just initially I'd make the comment that several of the submissions made on behalf of the applicant suggested that in some way it was for the unions to make out, or the unions somehow bore an onus to make out that there wasn't any industrial action probable or threatened. Now, in our submission it's clear that that's not the case at all. In these proceedings it is for the applicant to satisfy the Commission firstly of the jurisdictional prerequisites and then secondly in relation to the exercise of the discretion.
PN1396
Your Honour, our submission is that there is no evidence and the applicant has made no case to establish that there is any industrial action threatened and it certainly hasn't made the case that there is any industrial action probable, certainly for the foreseeable future. If we go to what the evidence that was offered on behalf of the applicant in relation to the evidence of Mr David Allen. Firstly at PN483 he makes the comment in relation to meetings that occurred in the week subsequent to the industrial action and meetings with the unions that:
PN1397
We worked quite fruitfully through a number of issues and came to an agreement on, I think, around 12 out of 20 odd issues.
PN1398
There's certainly no suggestion in the evidence of Mr Allen, any evidence that directly points to a threat being made of further industrial action and the evidence of Mr Allen in relation to the probability of further industrial action relates - sorry, your Honour, I'm just getting the reference. He made reference to the question being when asked whether there was any further industrial action probable he said that question was well, has the leopard changed its spots. Well, clearly we would say that there is evidence before the Commission to show that certainly things have changed and if there is any leopard in these proceedings their spots have changed.
PN1399
There is an agreed process to resolve outstanding issues on any issues that are outstanding and indeed the majority of issues that gave rise to ..... have indeed been resolved. But clearly the evidence before the Commission is that each of the unions has made a clear commitment to the dispute process. There's no evidence to suggest that that commitment has been given falsely and also that the unions are confident that that process if and when it is followed will satisfactorily resolve the issues one way or the other. And you heard the evidence of Mr Serl when asked if issues that went to arbitration were not resolved to the satisfaction of the LHMU, what would be his advice to members of the LHMU.
PN1400
He responded that in those circumstances he would respond to members that the issue had was now resolved through arbitration and there wasn't and isn't any suggestion that there's going to be any industrial action into the foreseeable future. Your Honour, the submissions made on behalf of the applicant point to only two instances in the past 10 years where there's been any kind of industrial action. Now, submissions made on behalf of my friend suggested that there was two stop work actions in the last six months. If I could just correct the record there. The evidence is that there was industrial action around April of this year and industrial action in November this year.
PN1401
I count that to be eight months, your Honour, certainly not two instances of industrial action in six months. In any event, what
we'd say about those instances for strike action is that really they are isolated events. The applicant has certainly not made out
any case that there is a pattern of behaviour on behalf of the LHMU or indeed the other unions in this matter that the passing is
for unions to resort to industrial action to resolve disputes in their favour. In fact, the evidence before the Commission is that
the unions use the dispute process, the grievance resolution procedure under the agreement in all cases. The strike action on
4 November was an isolated event and the usual course of negotiations between CSBP and the unions is that the grievance resolutions
procedure is used.
PN1402
Certainly that went off the track recently, but all the evidence before the Commission is things are now back on track and the unions are certainly confident that there's a proper process to go through and they're committed to going through that process. Your Honour, in our submissions the correspondence that's occurred and the meetings that have occurred are evidence of that relationship being back on track. Now, you heard evidence from Mr Tracey that he was concerned in relation to the PPR issue that from the letter dated 21 November - sorry, your Honour, I don't have the exhibit number for you.
PN1403
THE SENIOR DEPUTY PRESIDENT: Yes, I know the document you mean.
PN1404
MR NICHOLAS: C11, I've been told.
PN1405
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1406
MR NICHOLAS: That it appeared from that letter that the company now was indicating that it just wished to proceed with its course of action. In our submission that would be evidence your Honour could take into account in relation to the conduct of CSBP given that in these proceedings there was a commitment to using the dispute resolution proceeding and clearly the clear understanding from each of the unions was that the grievance procedure would be used through to resolution. And for CSBP now to be just proceeding on with its course of action without affording the unions an opportunity to seek conciliation and arbitration through the Commission it shows that its bona fides are not where they should be in relation to the procedure.
PN1407
Your Honour, in our submission all the evidence before you clearly shows that there is no probable industrial action in the foreseeable future. In our submission there is no evidence before you of a threat of industrial action and for those reasons the Commission doesn't have the jurisdiction under section 127 to issue any orders and it should not proceed to do so. Your Honour, if on the contrary you find that the Commission does have discretion to deal with this matter then the matters you referred the parties to that Ross VP outlined in Grocon Constructors is clearly relevant and the four factors he referred to - - -
PN1408
THE SENIOR DEPUTY PRESIDENT: Yes, you won't need to outline them for me. You can simply address your comments in relation to them.
PN1409
MR NICHOLAS: Thank you, your Honour. In relation to the onus being on the applicant to make out its case at least on a prima face basis we would say - and these submissions, your Honour, do relate to the burden that we would say the applicant has in relation to the jurisdictional elements as well - we would say that the evidentiary onus rightly goes somewhat more than just being on a prima face basis. We would say that following the High Court's decision in Brigginshaw and Brigginshaw which is [1938] HCA 34; 1938 60 CLR 336 an authority, your Honour, I haven't provided a copy of that case to you, but I can immediately after proceedings.
PN1410
THE SENIOR DEPUTY PRESIDENT: I seem to recall that one somewhere in my distant memory bank, not that I was born then, Mr Nicholas.
PN1411
MR NICHOLAS: Thankyou, your Honour. That case dealt with an issue of a burden of proof required in a civil case where there was serious consequences for the respondent if orders were made. And if I could draw your attention to comments of his Honour Dickson J which is at page 361 to 362 of the Commonwealth Law Reports. The report I'm referring to here, and I have a copy for my friends, is the High Court report and this is at the bottom of page 11 of that report. Dickson J there says, and this starts the tenth line from the bottom:
PN1412
The truth is that when the law requires the proof of any fact the tribunal must feel an actual persuasion of its occurrence of existence before it can be found. It can not be found ...(reads)... has been proved to the reasonable satisfaction of the tribunal. In such maters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references.
PN1413
Your Honour, in our submission that comment is directly relevant to the case put forward by the applicant. The case put forward by the applicant is full of inexact proofs, indefinite testimony and indirect references. In our submission we would say the burden the applicant carries in relation to this matter has not been made out either in relation to the jurisdictional elements or in relation to the exercise of the discretion. Your Honour, in relation to the considerations that are relevant in relation to the exercise in terms of discretion certainly we would say that the conduct of the parties is relevant. I'll just make some short submissions in relation to the conduct on behalf of the LHMU and I suppose by reference to the other unions also.
PN1414
What we would say is that any reference to the conduct in relation to the strike or before 4 November should be tempered by a cleared understanding that that conduct is an isolated event. It is not the general conduct of the LHMU or the other unions. The evidence before the Commission is that the general conduct that has occurred on the vast majority of cases in the past and on the evidence before you that is most likely to occur into the future is that the dispute process under the agreement would be followed. And certainly we would say that there's evidence before you to find that the conduct in relation to the LHMU an the other unions is that they have gone through an isolated event of some strike action but things are now back on track and they're certainly going through the agreed processes.
PN1415
In relation to the conduct on behalf of CSBP we would say that it is a relevant consideration that there was an agreed process. The evidence of Mr O'Reilly stood up to challenge that there was an agreement by Mr Gordon that he would provide a response by a certain time in the weeks leading up to the strike action and that response did not come within that time. We'd also say that the process that CSBP are proposing to take in relation to what's been termed the PPR that's evidenced in the letter of yesterday's date is evidence that CSBP don't intend to follow through with their commitments in relation to following the disputes procedure.
PN1416
So we would say they're relevant considerations for your Honour in relation to any exercise of the discretion.
PN1417
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, how should I understand what you're putting to me in that regard, in that a number of the union officials who've appeared today as witnesses have made it clear to me that they intend to follow the dispute resolution process? That process is not necessarily dependent upon CSBP doing or not doing certain things. Now, my understanding of the evidence that was given to me today is that notwithstanding that CSBP may proceed to implement the performance management system which the unions say should not be implemented. The unions consider that they have the capacity to take that matter up in accordance with the dispute resolution process with that
PN1418
process ultimately resulting in the matter being referred to the Commission for arbitration. But the actions of CSBP would not be regarded as a catalyst or licence for taking unprotected industrial action. Now, am I correct in that regard?
PN1419
MR NICHOLAS: Certainly, your Honour, there's no suggestion from the LHMU or I understand any other of the unions that because it appears that CSBP intends now to just proceed with their proposed PPR process that there would be any industrial action because of that. We would certainly be immediately now referring that matter under the disputes procedure in the agreement.
PN1420
THE SENIOR DEPUTY PRESIDENT: All right.
PN1421
MR NICHOLAS: So, your Honour, what my submission related to was that stated intention on behalf of CSBP to now just proceed with that process is relevant given that in these proceedings and certainly my instructions are that the CSBP have made a commitment that unresolved issues would be proceeded with through the grievance resolution procedure including the reference of any unresolved matter to the Commission for conciliation and arbitration.
PN1422
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1423
MR NICHOLAS: Your Honour, if I could just go back to some of the submissions made on behalf of the applicant.
PN1424
THE SENIOR DEPUTY PRESIDENT: Mr Nicholas, can I interrupt you. I'm approaching this hearing and still expected to conclude it this afternoon, or what is for you this afternoon. I think it only fair to tell you or remind you that it's now 7 o'clock in Melbourne. The fact of the matter is that I caught the pre-dawn flight from Adelaide and hence I'm probably interested to know whether or not I'm being overly ambitious in expecting the parties to conclude the matter today. How much longer do you think you might go for, Mr Nicholas, and I should stress I'm not trying to cut you off at all?
PN1425
MR NICHOLAS: Thank you, your honour. I do take that on board. I propose only troubling you for a further five minutes perhaps.
PN1426
THE SENIOR DEPUTY PRESIDENT: I see. And Mr McLane?
PN1427
MR McLANE: Sir, I just estimated to Mr Edmonds that I'd probably be about 20 minutes. I think I can do it in 15, sir. 10 to 15.
PN1428
THE SENIOR DEPUTY PRESIDENT: Okay. Well, if I start eating the microphone you'll know you've gone for too long. Mr Edmonds.
PN1429
MR EDMONDS: Sir, I would anticipate maybe 20 minutes, maybe half an hour. I suppose it depends how much my friends cover, sir. I'll endeavour not to repeat their submissions, but it may be that I need to do so to put a proper spin on it from the CEPU perspective perhaps.
PN1430
THE SENIOR DEPUTY PRESIDENT: I see. All right, well we'll persevere for a little longer.
PN1431
MR NICHOLAS: Thank you, your Honour. I'll try and be quick. Firstly and quickly in relation to the evidence in relation to the retention payment I just underlined the clear evidence from Mr Serl was that was not an issue in relation to the strike action taken on 4 November. I'd also like to underline the point that I made before in relation to the onus. There was a suggestion that on behalf of the applicant that evidence of further discussions between the parties is not evidence in relation to there being no likelihood of further industrial action. Well, of course the comment there is that it is the applicant's onus to make out.
PN1432
In relation to the submissions on behalf of the applicant in relation to the absence of any firm commitment from the LHMU or other unions I would just make the point that certainly the LHMUs view that it's not appropriate in the circumstances to make such a commitment. There's no need to make such a commitment and certainly in these circumstances where we're opposing the making of section 127 orders, to make a commitment that would operate as de-facto orders, that it certainly would be inappropriate for us to make that kind of commitment and there's no requirement that we should. Your Honour, that concludes my submissions.
PN1433
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Nicholas.
Mr McLane.
PN1434
MR McLANE: Thank you, your Honour. Sir, without repeating or attempting to repeat anything said by Mr Nicholas I'll make the point, sir, attempt to make the point that the onus is on the applicant to establish that the statutory criteria have been met and that the applicant must establish an industrial action is either happening, threatened, impending or probable. So I rely on the off sided Coal and Allied case in relation to that and also the Patrick Stevedores Number One Ltd and Patrick Stevedores Number Two Ltd cases as well that are off sided. The applicant's onus extends to establishing on a prima face basis that there are adequate grounds for the Commission to order that the relevant action, sir - and I say the key word there is "relevant action" - stop or not occur and I rely on Sulcur and the AMWU and that is for that.
PN1435
Sir, there is no relevant action taking place, threatened, intending or probable in my submission and just like Mr Nicholas I propose to briefly deal with the submissions on the basis of two prongs, if you like, sir. One that there is no jurisdiction been made out and therefore that the orders sought should not be issued and that the matter should be dismissed for want of jurisdiction and failing that, sir, an argument that the jurisdiction should not issue. I put in some very, very rough outline of submissions the other day, sir. Once again it teaches me to read my notes. If I had have done I would have found out that I didn't have to do that.
PN1436
In relation to the submission - I'm sorry, sir, I'll come back to that. I'd submit, sir, that all of the evidence and the company's evidence as well establishes that there is no industrial action impending or happening. Mr Allen's evidence, and I'm sorry I don't have the reference, at one point was along the lines of well, look we received some comfort in the way things are going on the job, however when we come along here and the unions aren't prepared to give the commitment that raises some concerns for us. He has concerns that there may well be further industrial action, but concerns don't amount to proof in my submission. The three union witnesses have been unequivocal, sir, about the possibility of industrial action.
PN1437
Mr Tracey's evidence was along the lines of well, notwithstanding the company deciding to do their own thing or exercise their prerogative - my words not his - in relation to the performance management issue, that notwithstanding that the AMWU will seek to have the matter dealt with through the processes available to it under the certified agreement and further in line with the process suggested by the Commission as currently constituted earlier on in the proceedings, and I think at the first proceedings and time frame where if I'm not mistaken the company gave through its representative gave a very clear commitment to follow that process only to walk away from it down the track when it serves them.
PN1438
But notwithstanding that we're not threatening any industrial action. We're committing to abide by the agreements and attempt to have that matter and the others resolved by arbitration. Now, Mr Tracey said in evidence that he doesn't expect all of the issues to be resolved to 100 per cent of the union's expectations. That's the reality, your Honour, in my submission. The evidence is that industrial action is very unusual on the site and that there's been two lots of industrial action in either the last six months or the last eight months, but anyway the last 10 years. There was the evidence in relation to that. I'll just briefly take the Commission to the Grocon decision of Ross VP and I'll just be very brief, sir.
PN1439
Beginning at page 6 of the copy of the decision that I have, I don't know that it's - but listed there is a chronology of industrial action at the RACV project March 2003 through to June 2004 and that runs for the best part of 8 pages. Now, I expect that the Commission and plenty of others in the room to take exception to this comment, but in my reckoning that is an impressive history of industrial action, your Honour. Now, it certainly blows two lots of industrial action in 10 years out of the window.
PN1440
THE SENIOR DEPUTY PRESIDENT: Mr McLane, I take it when you say an impressive list you're not meaning to indicate that you inspire to emulate it?
PN1441
MR McLANE: I certainly don't expect any agreement from the Commission on that, sir.
PN1442
THE SENIOR DEPUTY PRESIDENT: I'd like an answer to the question because if indeed it's an impressive list to the extent that you did aspire to emulate it, that's not something that sits comfortably with the advice that I've been given today.
PN1443
MR McLANE: No, sir. It's certainly not something that I aspire to emulate and the evidence that's before you is unequivocal, sir, in relation to future industrial action on this site. I merely say that that's the history of industrial action in this particular case and I say that the present case is distinguishable from this one, sir, that there's only been - - -
PN1444
THE SENIOR DEPUTY PRESIDENT: I understand that. Yes, thank you.
PN1445
MR McLANE: Yes, sir. Also, sir, Ross VP says:
PN1446
There is a culture of pressing industrial objectives through unlawful activity rather than agreed processes and industrial merit. This culture can not be condoned and warrants an order for considerable length to address it.
PN1447
And he says that, sir, at paragraph 19 of the decision. Sir, this is not a site that has a culture of pressing of industrial objectives throwing off activity. It's a site that has a history and record of pressing industrial objectives in a very civilised manner that's worked well over many years and I simply attempt a piggy-back on the submissions of Mr Nicholas that these disputes are basically out of the ordinary, sir, at this particular site. Sir, just in relation to the exercise of the discretion, if the Commission does find that jurisdiction exists I say I submit, sir, that the discretion should not be exercised in the way that the employer seeks because they don't come here with clean hands, sir.
PN1448
One they fail to live up to commitments made by Mr Gordon, two of their own prerogative implemented the $6000 retention bonus, three they stone walled on issues that need a resolution and four as of today they've said to everybody look, in effect we're exercising our prerogative and we're going to step outside of the commitments to the process that we made during these undertakings. The exercise, sir I'd say - and once again Ross VP picks this up in paragraph 40 of Grocon sub-paragraph 3 where he quotes Coal and Allied, I think, no. I'm sorry, sir, it's not in relation to Coal and Allied, it's his words I think.
PN1449
THE SENIOR DEPUTY PRESIDENT: No, the Vice President does quote Coal and Allied.
PN1450
MR McLANE: Yes. It says:
PN1451
The exercise of such discretion requires that the Commission be satisfied that it is appropriate to direct that the relevant industrial action cease or not occur.
PN1452
Once again, sir, I say the key word in that is relevant and it hasn't been established that there is any industrial action or intended industrial action or eminent industrial action or probable industrial action let alone relevant industrial action. Sir, the issues that gave rise to the matter coming before you have now had the heap taken out of them. The majority or a significant number anyway have been resolved through two processes. One that your Honour led us into which involves as part of that working through the settlement or disputes procedure.
PN1453
And the ones that are outside of that we're still committed to working through to resolve and if we can't it's been stated a number of times already that we will seek to have those matters dealt with through the process and the Commission and I can give the commitment, sir, as Mr Tracey did in the books that the AMWUs committed to that and if we get a bad decision - sorry, not a bad decision - a decision that we don't like, well that's our bad luck. We'll take it on the chin. We're not going belt the boss. Sir, the evidence of Mr Tracey and others is that the relationship is back on foot and that's further reason, sir, as to why the discretion should not be exercised in my submission.
PN1454
I just want to touch very briefly, sir. Mr Edmonds described it, I think, as a strange inference or something like that, that the Commission was asked to draw on the basis that the orders have been complied with. Yes, I don't think there's any dispute at all. The evidence is the fist interim order that was issued on Friday the 4th was complied with as soon as people became aware of it. The then second interim order and third interim order that have been in place, sir, have been complied with. And that's simply it. That's the end of the matter and it's not possible to draw some inference from that lawful conduct of the unions in following the order.
PN1455
That's some sort of proof that they're going to breach the orders and if the Commission doesn't issue orders until September next year as sought, even though a concession has been made there that the Commission should turn its mind to the length of the orders, that's some sort of green light for the unions to throw a picket line or community protest line back up on the job. They're just strange submissions, in my respectful submission. Sir, I just want to turn to the orders that are being sought and if I've got the right document, it's headed Minute of Final Order.
PN1456
THE SENIOR DEPUTY PRESIDENT: Yes, that's correct.
PN1457
MR McLANE: Sir, they're orders to enforce what's already happened and is happening on the job. They will be going to people and saying look, we've got orders that you're to keeping working in the way that you are. The term and affect is, in my submission, sir, just to seek orders until 30 September 2006. On the basis of two lots of industrial action in the last 10 years is just over the top. There may well be some - sorry, sir, let me come at that again if you will. If the situation was such that there'd been no progress, that we were still at war, that we were still in the gutter belting each other I could understand, that there may be a need for orders and some significant length of time applied to those orders.
PN1458
That's not the case, sir. Everything's back on foot and people from the unions and I think the company. Mr Tracey readily acknowledged the role of the companies played in this are attempting to work through the issues. For all those reasons, sir - sorry, sir, just one more and I'll just rely on Mr Nicholas' submissions as well. The fact that we have been unwilling to give the commitment that you Honour has sought on a number of occasions was explained far more clearly and articulately by Mr Tracey than what I can attempt to explain it. I understand why the Commission from time to time as currently constituted and as a practice of many other members of the Commission do attempt to seek the type of assurances that your Honour did.
PN1459
I understand the reason why, I have no difficulties with that except, sir, for when it becomes to the issuing of the permanent orders of where we are today. There's no requirement upon us as an organisation under the Act to give those commitments and everything falls to the applicant to make out their case and establish their case, sir, which I say they haven't done on this occasion. If the Commission pleases.
PN1460
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr McLane.
Mr Edmonds.
PN1461
MR EDMONDS: Thank you, sir. I'll try to be brief, sir. I'm afraid I will stray into some areas that have been touched on by my friends, sir, but I'll adopt their submissions and will try to steer away from those issues or to address them as briefly as possible. I suppose at the outset, sir, the point needs to be made that the issuance of a section 127 order has a certain character in the IR area, or in the system itself, and there are serious penalties for breaching a section 127 order. So it is a serious matter to issue a section 127 order in any circumstances. And that needs to be borne in mind in these circumstances. It is a serious matter and it's not a matter that ought be just a process of a rubber stamp or something like that.
PN1462
It ought be considered seriously and there needs to be a basis upon which an order is able to be issued. Like my friend, sir, I'll address these issues in two prongs. The question of whether there's jurisdiction, whether industrial action is threatened or probable and, whether if there is jurisdiction, whether the Commission ought exercise its discretion in the circumstances. With regard to the question of whether the Commission has jurisdiction my friends have conceded that the only grounds upon which they argue it is that industrial action is either threatened or probable. So it is not happening or impending, it is only threatened or probable.
PN1463
Now, the Act says that industrial action is threatened, is probable. It doesn't say may be a possibility. It has to say it is threatened, it is probable. So it's more than a mere possibility, it's more than rumour, innuendo, something like that. They'd have to establish an evidentiary basis for saying industrial action is threatened and it is probable. In those circumstances we say the burden is on the applicant to establish that it is more likely than not that industrial action will occur. There is no burden on the respondent to, I suppose, address unsubstantiated allegations. The respondent is free to turn up and call no evidence whatsoever. The burden is on the applicant to make out their case.
PN1464
So we need to turn, I suppose, to the evidence that the applicant relies upon to justify their claim that industrial action is threatened or is probable. They argue in the first instance that there's a pattern of conduct on the part of the unions of not complying with the disputes procedure and taking industrial action. In terms a pattern of conduct they say well, there's been two episodes of industrial action in the last six months and there's been a failure to comply with the disputes procedure in the circumstances hence a pattern of conduct is made out. We certainly say in the first instance that there is no pattern there.
PN1465
There is a pattern of two episodes of industrial action in the last 10 years. So there is no pattern there of the sought relied upon
by Ross VP in the Grocon matter or on the Commission in the Coal and Allied matter. There is no pattern of conduct of any sought
like that in this matter. They also say or the other evidence that they put in this matter which they use to justify their claim
that industrial action is threatened or probable is found at Mr Allen's statement at paragraphs 57 and 58. In my view there can
be no weight attributed to that evidence of
Mr Allen. He asserts, I suppose, in the first instance that the conduct of the union in relation to these two issues leaves him
with no confidence that they'll abide by the enterprise agreement and by the disputes procedure into the future.
PN1466
And quite frankly there's been ten years or nine and a half years of compliance with disputes procedures. There's been nine an a
half years of compliance with the enterprise agreement. So it's simply not true to say that well, the pattern of conduct now leaves
me with no confidence. There needs to be more than just
Mr Allen's view that he doesn't have confidence that the unions aren't going to comply with the disputes procedure in the future.
And in my submission that's all his evidence consists of, just his vague opinion that industrial action may or may not occur in
the future.
PN1467
He mentioned briefly he'd heard rumours that there may be industrial action at Christmas time. I know that his counsel didn't press that issue with any of the other witnesses and quite frankly it's proper not to press that issue because I don't think that that allegation is seriously being made, that industrial action will occur around Christmas time. It was also alleged by Mr Allen that industrial action was occurring in that workers were in breach of the agreement in that they weren't attending call outs. Now, that evidence was addressed by Mr Fiala and indeed that evidence was unchallenged by the counsel for the applicant.
PN1468
Mr Fiala was not challenged on that issue. There is no dispute that industrial action is not occurring in relation to the call outs. There's no dispute that that alleged action does not constitute industrial action. So to the extent that Mr Allen raises those issues, they can't be relied upon. So we say that other than that the only evidence that the applicant calls forward to justify their claim that industrial action is threatened or is probable is two other items. One is compliance with the interim section 127 orders. The applicant for some bizarre reason seeks to find justification in compliance with orders of the Commission to justify the making of further ongoing orders.
PN1469
And that just seems to be a bizarre argument because the adage well, if they did abide by the section 127 orders the applicant would
also be using that as a justification for the making of final 127 orders. So we say that there is simply no weight that can be added
to the fact that the respondents complied with an interim section 127 order issued by the Commission. We say that that was the proper
course of action to be adopted by the respondents and there ought not be an adverse inference drawn by the Commission from that fact.
In actual fact, if anything there's a positive inference to be drawn on that and that is that the relationship is back on foot,
the interim order has had it's purpose which was to
cease the industrial action that was occurring and that that would be a justification for not issuing final orders.
PN1470
The other ground upon which the applicant seeks to justify their claim that industrial action is threatened or probable is an unwillingness on behalf of the respondents to provide an undertaking to the Commission in relation to future industrial action. Quite frankly it's not incumbent on the - well, certainly we'd say in the first instance the Act doesn't require respondents to give any undertakings in these matters and we'd say further that it is not incumbent upon the applicant to make their case. So the refusal to provide undertakings which are not required under the Act could not be considered as adverse evidence against the respondents in this matter.
PN1471
It's embarrassing that the applicant seeks to do so. They need to rely upon their own evidence to establish their case, not an inference that they say should be drawn from. The conduct of the unions in not providing an undertaking when there is no requirement to do so. So we would say that when you discount that evidence as ought properly been done there is no evidence there to challenge the evidence from the unions and industrial action is not threatened, impending or probable, that the issues that gave rise to the industrial action on 4 November have been resolved, that the unions are following those processes through the disputes procedure, they are engaging in the disputes procedure in good faith and they had no intention of taking any further industrial action into the future.
PN1472
We would say that that evidence from the unions has been unchallenged and ought properly be considered in these circumstances as the proper course or the proper facts of the matters. And we'll say that in those circumstances we'd say there is nothing to demonstrate that industrial action is threatened or probable hence the Commission should find that it has no jurisdiction in this matter. The second question that needs to be considered is if the Commission does consider that it has jurisdiction the next question to consider is the exercise of it's discretion. The first issue to be considered or the first part of the exercise of its discretion is for the Commission to consider the conduct of the parties.
PN1473
I've got to say that the unions are not here claiming that it was appropriate to take unprotected industrial action in these circumstances. We're not coming here saying look, this is an entitlement under the Act for us to take unprotected industrial action. We know that it's not. And the efforts that have been made by the unions have been to resolve these issues and to prevent unprotected action occurring into the future. So we say that after the initial unprotected action the conduct of the unions has been appropriate. The conduct of the unions has been to engage in discussions to try and resolve the issues, to try and ensure that these matters are taken through the disputes procedure.
PN1474
We'd say the conduct of the company in these circumstances has been to not engage in the disputes process in good faith to the point that the industrial action was occurring while they were under the spotlight, I suppose, of the Commission to engage in the disputes procedure, but the indication from the company today and the correspondence they've given today is well, we've considered that we're now out of the spotlight, I suppose, and that notwithstanding part 2 of clause 19 of the certified agreement we intend to ignore the disputes procedure in the future, we intend to implement our PRP process. The status quo won't apply and as far as we're concerned we can just ignore the disputes procedure.
PN1475
Now, we say that that conduct disentitles them in these circumstances to an order which restrains further action on behalf of the unions. But that's not to say, sir - and you shouldn't infer from that that the unions intend to engage in any industrial action - we say that the proper response to that and the response that would be undertaken by the unions is to immediately refer the matter to the Industrial Relations Commission to seek an initial conference to prevent the company from engaging in conduct which we say is contrary to the certified agreement. I suppose that those comments really blend into the second factor that needs to be considered in the exercise of your discretion, which is compliance with the disputes procedure.
PN1476
We say that in these circumstances the company is not complying with the disputes procedure or the unions are endeavouring to use their best efforts to comply with the disputes procedure. The final point or the final factor that needs to be considered in the exercise of your discretion, sir, is the effect of section 170MN. 170MN refers to:
PN1477
Not taking industrial action during the term of the certified agreement for the purpose of supporting or advancing claims against the employer in respect of the employment of employees.
PN1478
We say that the purpose of the industrial action was taken was not to support or advance claims. We say that the industrial action was taken was in frustration at the refusal of the company to engage properly the disputes procedure, the refusal to properly attempt to resolve outstanding issues in the workplace. So we say that section 170MN has not been, I suppose, enlivened by the action that occurred and we don't think that that assertion has been challenged by the evidence of the applicant in these circumstances. By the same token we say that section 170NC of the Act is not enlivened either.
PN1479
There is no evidence that the purpose of this industrial action was to coerce anybody to make, to vary or to terminate a certified agreement. Yes, it is true the AMWU and the CEPU have initiated bargaining periods which is nothing more than an indication from those parties that it intends to seek an agreement in relation to the issues outlined in those bargaining periods. No one claimed that they were taking action in support of those claims and indeed there is no evidence to support any such assertion. It is not contrary to the Act to initiate a bargaining period. It would be contrary to the Act to attempt to take protected action in relation to those issues which a certified agreement is in place.
PN1480
But we say that that is not what happened. We say that there was no coercion of the kind referred to in section 170NC in these circumstances. So we say that that section is simply not relevant. So we say that the discretion or the factors that ought be considered in the exercise of the Commission's discretion weigh against the issuing of an order in these circumstances. However, if the Commission is minded to issue an order and we say in the first instance you had no jurisdiction, in the second instance the discretion ought not be exercised in these circumstances, but we say if the Commission is minded to issue an order that order should only be for a short period of time.
PN1481
But additionally, that order should also bind the company to the orders and compel them to also comply with the grievance procedures for a certified agreement. Because that is really the issue, that's the problem here. That the company is not complying with their own grievance procedures. So if any section 127 order is issued and it should bind everybody, it should bind the applicant company in those circumstances to those orders and it should bind them to comply with those orders. Unless there are any questions, sir, I don't intend to make any further submissions.
PN1482
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Edmonds. Mr Caspersz.
PN1483
MR CASPERSZ: Thank you, your Honour. I'll be as brief as I can. I've got basically only a few points, your Honour. Firstly in relation to onus. Brigginshaw and Brigginshaw has been raised. You Honour would be aware of the fact that that was the decision which concerned, effectively, an application for distribution of a marriage based on an allegation of adultery, where I recollect where in effect it was the wife that committed adultery. It was a complex but such a serious allegation that his Honour Dickson J, as he then was, made his famous dictum about the measure of satisfaction.
PN1484
The situation here, your Honour, is one where jurisdictional fact which has been contended for by the applicant is whether in fact industrial action is threatened or probable. The consequences of that finding is simply to enliven the expression of the Commission. It then goes further in whether it can make a final order or not, compare the consequences of finding whether a wife committed adultery or not in the context of proceedings for dissolution of marriage. A very, very different, the latter being related to issues concerning grave moral delinquency as was referred to by his Honour Dickson J in Brigginshaw and Brigginshaw, the former simply being in relation to enlivening discretion to make final orders.
PN1485
The situation therefore is that the standard of proof in relation to the application which the applicant does have, it is conceded, has been appropriately described on a number of occasions, usefully summarised ;with respect by McCarthy DP in the Jayco decision at paragraphs 12 to 14 which I referred your Honour to on a prior occasion. That was in print number PR944165. And one needs to go no further than the language of the section itself. It simply means to appear to the Commission, there's no need to overload that with any technicalities of balance of probabilities or anything like that in the applicant's submission.
PN1486
The evidence of berth in which the inference can be drawn that it appears that the industrial action is threatened or probable, namely the evidence of, amongst other things, the continued refusal of the unions to give full commitment which has been sought in relation to not taking further unprotected industrial action. And the inference that can be drawn by that has not been in any way countered by any evidence which has been led by the union's response to what the applicant says is an evidentiary onus which is on them, given that fact alone which is undisputed. If I can move on then to the next point, your Honour, and that is in relation to the criticism of the company, that the company has some way departed from some commitment which it has given.
PN1487
I would invite your Honour to have regard to what I said on behalf of the company in accordance with my instructions at PN352 of the transcript which is on 7 November where I paraphrase:
PN1488
I advise the Commission that the employer commit to the process suggested by your Honour including the time frames on the basis of either the equivocal commitment or your Honour has suggested or a continuation of the interim order.
PN1489
That was on my instructions, your Honour. Subsequent to that your Honour's statement issued dated 7 November containing those time frames. In my submission nothing has been said. There is no evidence, in fact all the evidence is to the contrary that the company has complied with that commitment which I advised your Honour of. The company has not walked away from any commitment which was given to the Commission, moreover it has not walked away from any aspect of the dispute resolution procedure in relation to criticism of the company concerning the roll out of the PPR system as indicated in the correspondence.
PN1490
It's clear that the evidence is that the company has participated in discussions in relation to that. It's simply that we're at a case now where once again the position is that the unions are unhappy with the company's state of position. Also it has been recognised by the unions it is open to them to now do what they think is appropriate. There is nothing to stop them from doing so and that is completely within their right to take whatever action they see fit, except of course to take unprotected industrial action. Your Honour, moving on then to the final point if I might, a couple of final points.
PN1491
My learned friend, Mr Edmonds, addressed the Commission in relation to section 170MN and the applicant's contentions regarding that. The fact of the matter, your Honour, is that it's the applicant's contention that the evidence, especially against the background of the industrial action, supports the contention that what has happened here is industrial action in breach of the no extra claims clause. My friend says that the industrial action actually was for a different purpose, it was simply to express dissatisfaction of the company's decision. It's quite clear that underlying that dissatisfaction was the fact that the membership and the unions were dissatisfied with the company's position on claims by the union and that brings into place section 170MN as I submitted.
PN1492
Finally, your Honour, in relation to the orders which my learned friend now seeks to get us a copy, pretty close to the 12th hour. There's no jurisdictional prerequisites which is satisfied in relation to seeking any such orders of the company insofar as there's no evidence that the company is engaging industrial action. He puts his claim up on the basis of alleged breaches by the company of the dispute resolution procedure in the certified agreement. In effect it's asking for orders to enforce the industrial agreement. The principals are well established that injunctions will not be granted to enforce agreements as such, contracts or industrial agreements in my submission.
PN1493
Particularly in addition to that we raise this issue of the 12th hour after now. I think this is the fourth appearance before the Commission in these proceedings, we haven't had any advance notice whatsoever, we've simply been denied procedural fairness to the applicant to even consider, in my respectful submission, in such orders in relation to the applicant. Unless I can be of further assistance, your Honour, those are the submissions.
PN1494
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Caspersz. Just bear with me for one moment, please. Section 127 requires that following jurisdictional prerequisites be met before the discretion inherent in that section is enlivened. Firstly, industrial action must be established within the context of section 4 of the Act. Secondly, this action must appear to the Commission to be happened, threatened, impending or probable. Thirdly, this action must in the circumstances of this particular matter be in relation to work regulated by a certified agreement. In this respect I'm satisfied that there is, applicable to CSBP and to the employees involved in this matter, a certified agreement.
PN1495
There is no dispute that at the time the applicant was made on 4 November 2005 unprotected industrial action was occurring. I have concluded that this action stopped primarily as a consequence of the issuing of the first of the three interim orders made in this matter. I do not consider that of itself compliance with these three interim orders made under section 127(3)(a) must by definition remove the capacity for an applicant to establish that the jurisdictional prerequisites had been met. However, on the evidence provided to me I am not satisfied that industrial action relative to work regulated by the current certified agreement is threatened, impending or probable. There is no dispute that it is not currently happening.
PN1496
Critical to this conclusion is the evidence of Mr Tracey, Mr Serl and Mr Fiala. To the effect that the three union officials see
no likelihood or cause for industrial action and that each of the three unions are committed to complying with the certified agreement
dispute resolution process irrespective of the final outcome of that process. Absent the information provided by the three union
officials I would have concluded that the jurisdictional prerequisites in section 127 were met on the following basis. Firstly,
the disputation and industrial action which occurred in early November, secondly the union's inability to give unequivocal undertakings
which precluded further industrial action when they were invited to do so on three
separate occasions, thirdly the nature of the claims which are outstanding and in particular the extent to which claims relative to
a retention bonus appear significant and finally the extent to which obvious legally sustainable means of resolving the outstanding
issues have not, until recently, been followed.
PN1497
Had I been persuaded that the jurisdiction existed I would then have considered the issue of discretion available to the Commission and I will traverse that issue in a moment. But in reaching the conclusion hat the jurisdictional prerequisites have not been met I have taken into account the fine balance of the information available to me. This includes consideration of the evidence of the union officials and of the evidence of the CSBP management representatives.
PN1498
The position of those union officials may well have changed since 4 November 2005, but I'm inclined to take the word of those officials at the present time. Had I been considering the exercise of discretion in section 127 I would have taken into account the factors identified by Ross VP in the Grocon matter which is at print PR950125. In that regard I would have commenced my consideration from the perspective of the onus on the applicant to establish, at least on a prima face basis, that there are adequate grounds for the Commission ordering that the relevant action stop or not occur.
PN1499
I would have reached a conclusion that CSBP had established that the
4 November 2005 industrial action was spontaneous and whilst it may not have been supported or actively encouraged by the unions
the extent to which the unions actively took action to stop those proceedings had not been established to me. Secondly in that respect
it would have concluded that CSBP had established that there is a current certified agreement, but that there are a substantial range
of issues which remain in dispute and which may do so for some time. These issues may represent matters that can no be resolved
over the life of the certified agreement. In that respect I've identified at least three categories of issue.
PN1500
Firstly, there are safety issues where I consider there is a shared obligation on both the employees and CSBP to ensure that those matters are addressed and resolved such that whilst the rights of employees to decline to work in unsafe circumstances are acknowledged. It is incumbent upon responsible management and safety delegates to ensure that approaches are adopted which avoid such circumstances arising. Secondly, there are disputes over the application of the agreement where the proper application of the dispute resolution processes will eliminate the potential for frustration and delays and ensure that the matters are resolved.
PN1501
Finally, there are disputes over issues which may not be addressed in the agreement and which may - and I stress may - not be capable of resolution during the life of the agreement. Those matters do not give rise to a right to resort to industrial action. In relation to the second of the criteria considered by Ross VP in Grocon, which is perhaps best summarised by the extract from the Coal and Allied decision which refers to the fact that the norms of the system reflected in the Act are not so specific that all unprotected industrial action must be taken to be of itself unjustifiable.
PN1502
I can indicate to the parties that again had I been satisfied in relation to the issue of jurisdiction, that the parties have in fact embarked on a process of addressing outstanding issues which, if applied in a common sense fashion, will eliminate any scope for industrial action to be regarded as justifiable. In that respect if employees have concerns over potential delays the opportunity exists for those matters to be referred to the Commission. I have earlier today indicated that I'm happy for those matters to be brought directly to my attention in Adelaide if the parties wish. If I'm unable to deal with any such matters I'll facilitate their allocation to another member of the Commission.
PN1503
The third of the criteria considered by Ross VP in Grocon goes to the need to evaluate the character of the industrial action. In that regard I have noted the existing certified agreement provisions, I've noted in particular the no extra claims provisions which may be preclude the Commission from resolving some of the outstanding claims in the way in which the unions want them to be resolved. I reach no conclusion in that regard, but I consider it appropriate to put the parties on notice in that respect. In the event that those issues were referred to the Commission for arbitration the decisions of Merkle J and Kenny J and the full Federal Court in Emwest may well become particularly relevant.
PN1504
In considering the exercise of the discretion should that have been necessary I would have taken into account the circumstances which
have changed since
4 November and the extent to which a process for the resolution of the matters now appears to be quite possible. I would have particularly
been concerned that any continuing industrial action or threat of industrial action would appear to be fundamentally consistent with
the legitimate processes for the resolution of the outstanding issues. Finally in terms of the fourth of the issues considered by
Ross VP, which goes to the question of whether or not the action is protected action or plainly likely to be protected industrial
action, I've noted that the action can not be protected industrial action at the present time.
PN1505
The certified agreement is comprehensive and operates at the present time within its nominal life. In that regard I would categorise
the concerns expressed by
Mr Caspersz such that the issue of prejudice would weigh heavily in favour of CSBP. All that takes me to indicate to the parties
is that the conclusion that should be drawn is that I have come very close to making an order and have not done so fundamentally
because I understand that each of the three union officials who have given evidence today firstly clearly appreciate the dispute
resolution process and the possibility that the adherence to this dispute resolution process may not resolve the matters in the union's
favour, secondly that those officials are neither advocating nor inspecting industrial action and thirdly that those three officials
are anticipating ongoing productive relations with CSBP.
PN1506
I'm not satisfied at the present time that the jurisdiction to enliven that section 127 currently exists. However, the parties should be on notice that the following behaviours would substantially effect the conclusion that I've reached on this occasion. Firstly, any new credible threat of unprotected industrial action, secondly any unprotected industrial action by itself and thirdly any refusal to implement the certified agreement dispute resolution process. Needless to say those behaviours occurring between now and the next 10 months would suggest that I should review the advice of the union officials in an quite different light.
PN1507
Should any such action of that nature occur CSBP are at liberty to make a further application. It is very likely to be referred to me and I'm very likely to be sitting, initially this year, up to and including 23 December. Any new application would be listed as a matter of urgency and these proceedings and decision would be taken into account. It appears to me that CSBP and the three unions now have the opportunity to get on with trying to resolve the outstanding issues and to continually improve their collective relationship. That's a two way obligation. It is not an obligation which rests simply and solely with the three unions. It rests equally with CSBP.
PN1508
If I can assist the parties in that regard I'm happy to do so. The application is refused, the interim order number three is discharged
with effect now and a written reasons for my decision which will broadly reflect those that I've advised to the parties now will
be issued over the next few days. I note as I've tried to read my rough notes that there may well be some changes to that decision.
Mr Caspersz, is there anything further?
PN1509
MR CASPERSZ: Nothing further. Thank you, your Honour.
PN1510
THE SENIOR DEPUTY PRESIDENT: Any of the three union officials, is there anything further?
PN1511
MR NICHOLAS: No, sir, thank you, sir.
PN1512
MR EDMONDS: No, thank you, your Honour.
PN1513
THE SENIOR DEPUTY PRESIDENT: Very well. I'll adjourn the matter on that basis.
<ADJOURNED INDEFINITELY [7.59PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
WILLIAM WARREN TRACEY, AFFIRMED PN873
EXAMINATION-IN-CHIEF BY MR MCLANE PN873
EXHIBIT #AMWU1 STATEMENT OF WILLIAM WARREN TRACEY PN879
CROSS-EXAMINATION BY MR CASPERSZ PN916
EXHIBIT #C9 FORM R47 DATED 19/09/2005 PN1001
RE-EXAMINATION BY MR MCLANE PN1033
THE WITNESS WITHDREW PN1057
RICHARD SERL, SWORN PN1061
EXAMINATION-IN-CHIEF BY MR NICHOLAS PN1063
EXHIBIT #LHMU1 STATEMENT OF RICHARD SERL PN1091
CROSS-EXAMINATION BY MR CASPERSZ PN1098
RE-EXAMINATION BY MR NICHOLAS PN1199
THE WITNESS WITHDREW PN1249
JOE DANIEL FIALA, SWORN PN1256
EXAMINATION-IN-CHIEF BY MR EDMONDS PN1256
EXHIBIT #CEPU1 STATEMENT OF JOE DANIEL FIALA PN1269
CROSS-EXAMINATION BY MR CASPERSZ PN1279
EXHIBIT #C10 NOTICE OF INITIATION OF BARGAINING PERIOD ISSUED BY THE UNION PN1301
THE WITNESS WITHDREW PN1330
EXHIBIT #C11 CORRESPONDENCE TO LHMWU, AMWU AND CEPU DATED 21/11/2005 PN1386
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