PR944491 PR944491 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.166A Restriction on certain actions in tort John Holland Pty Ltd (C2004/2327) Building, metal and civil construction industries COMMISSIONER CARGILL SYDNEY, 12 MARCH 2004 DECISION [1] On 11 March 2004 John Holland Pty Ltd (the company) gave notice of intention to bring an action or actions in tort against the Construction, Forestry, Mining and Energy Union (CFMEU). The notice was received in the Registry at 9:12am. The matter was listed before me today, 12 March 2004 at 11:00am. [2] Evidence was adduced from Mr Sasse, the company's Corporate General Manager, HR/IR and Safety, and an affidavit sworn by Mr Sasse was tendered and marked exhibit "John Holland 1". Mr Sasse was cross-examined by the representative for the CFMEU, Mr Smith. [3] The matter then went off the record during which time I held conferences with the parties both together and separately. Unfortunately the exercise of these conciliation powers to attempt to resolve the underlying dispute was unsuccessful. [4] It should be noted by way of background that the issues in dispute had been the subject of previous proceedings in matter C2004/1736 before both Commissioner Harrison and myself. On 8 March 2004 I issued an order pursuant to section 127 of the Workplace Relations Act 1996 (the Act). The parties bound by that order are the CFMEU, the company and employees of the company employed on the company's project at North Kiama. [5] At the conclusion of the conferences referred to in paragraph 3 above the present matter resumed on the record and submissions were made by both the company's representative, Mr Ludeke, and Mr Smith. [6] On the basis of the evidence in the matter I make the following findings as to the tests for jurisdiction: 1. The conduct of the company's employees who are members of the CFMEU in taking strike action, including the present strike, until at least 19 March 2004 is conduct capable of being the subject of notice under section 166A of the Act. The role of the CFMEU in relation to that action will be an issue in any ensuing court proceedings. 2. The conduct is capable of being the subject of conciliation proceedings and was in fact the subject of such proceedings earlier today. 3. The conduct is capable of being the subject of attempts by the Commission to stop the conduct. Those attempts included the conciliation proceedings previously referred to as well as the issue of the order pursuant to section 127 in relation to matter C 2004/1736. Those attempts have not been successful and the action is continuing. 4. The conduct might reasonably be the subject of a declared intention to bring an action in tort. [7] In this matter I am being asked to issue a certificate under section 166A (6)(a) or (b). Paragraph (c) is not relevant for present purposes, as 72 hours has not elapsed since the initiating notice was given. As indicated earlier I have exercised conciliation powers in relation to the underlying industrial dispute. As a result of the exercise of those powers and against the background of my involvement in C 2004/1736 I have formed the opinion that it is not likely that the Commission will be able to stop the conduct promptly. I must therefore immediately certify in writing to that effect. Such certification is attached to this decision. [8] As I have formed the requisite opinion under section 166A (6)(a) there is no need for me to consider whether or not I would certify pursuant to paragraph (b). BY THE COMMISSION: COMMISSIONER Appearances: P. Ludeke with leave for the Applicant. S. Smith for the Respondent. Hearing details: Sydney 2004. March 12. Printed by authority of the Commonwealth Government Printer <Price code B> AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.166A Restriction on certain actions in tort John Holland Pty Ltd (C2004/2327) Building, metal and civil construction industries COMMISSIONER CARGILL SYDNEY, 12 MARCH 2004 CERTIFICATE I certify pursuant to section 166A (6)(a) of the Workplace Relations Act 1996 that this Commission is not likely to be able to promptly stop the conduct to which the notice in matter C 2004/2327 refers, namely the present and continuing strike action by employees of John Holland Pty Ltd engaged on its project at North Kiama. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer