C2001/2798, Transcript of Proceedings [2001] AIRCTrans 1149 (18 June 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 7573

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/2798

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Stork ICM Australia Pty Ltd and Others
for an order to stop or prevent industrial
action

MELBOURNE

10.00 AM, WEDNESDAY, 23 MAY 2001

PN1

MR J. BOURKE: I seek leave to appear on behalf of the applicants in this section 127 application.

PN2

MR D. NOONAN: I appear for the Construction, Forestry, Mining and Energy Union with MR N. WASHINGTON.

PN3

MR C. JOHNSTON: I appear on behalf of the AMWU with my delegate T. MAVROMATIS.

PN4

MR P. COFFEY: I appear for the CEPU Electrical Division

PN5

THE COMMISSIONER: Yes, Mr Coffey. What do you say about leave?

PN6

MR NOONAN: No objection to leave, Commissioner.

PN7

THE COMMISSIONER: Leave is granted, Mr Bourke.

PN8

MR BOURKE: Thank you, Commissioner. Commissioner, did the Commission receive some faxed documents late last night?

PN9

THE COMMISSIONER: Yes, yes.

PN10

MR BOURKE: If I could hand up another hard copy of that.

PN11

THE COMMISSIONER: Thank you.

PN12

MR BOURKE: That includes the amended application, proposed new draft order. The material change to the amended application is the removal of the AWU as a respondent to the application.

PN13

THE COMMISSIONER: Mr Bourke. If you blokes want to have a conversation go and have it downstairs. Or otherwise sit around and have a bit of respect for the people at the Bar table. It is not a school yard. Now do you understand what I am saying? I am talking to you mate. Have you got a mouth? Do you understand what I am saying? Right, Mr Bourke.

PN14

MR BOURKE: Thank you, sir. The relevant change is the removal of the AWU as a respondent to the application. In terms of the draft order, the change is in terms of the removal of that party and also at 2.1(e) the defining of the employee members.

PN15

THE COMMISSIONER: Yes.

PN16

MR BOURKE: And then you have the two witness statements of Mr O'Driscoll and Mr Jewell. If they could be tendered if that is appropriate. If the Commission pleases.

EXHIBIT #A1 AMENDED APPLICATION AND PROPOSED NEW DRAFT ORDER REMOVING AWU AS RESPONDENT AND DEFINING OF EMPLOYEE MEMBERS IN 2.1 OF DRAFT ORDER

PN17

MR BOURKE: If the Commission pleases. The applicants are attempting to build a chemical plant at Orica Australia at Laverton. The project is running some 11 months behind schedule. It is now expected that the budget will be exceeded by some 18 million which is in excess of 100 per cent of the proposed budget. The level of productivity on the site is about one third that would be expected on other Australian sites, and any loss of productivity for a day sounds out in a loss of approximately $200,000. There has been a long history on the site of difficulties regarding safety issues, which of course disrupted the work and industrial issues.

PN18

The most recent has been a strike that involved members of all three unions here today, AMWU, CFMEU and CEPU, commencing on Friday, 18 May, which there was no work scheduled for the Saturday and Sunday. The strike continued on to the Monday and work recommenced on the Tuesday. Further there was yesterday a ban placed on work, involving Ron Gee Enterprises where it was put that although with the CFMEU through its shop steward, Greg Price, was complaining about the safety practices of Ron Gee, it was indicated that unless Ron Gee completed the relevant work, nobody else would be allowed to do that work.

PN19

At 5 pm yesterday that ban was removed. We have an ongoing threat made by Tony Mavromatis, shop steward AMWU, made on 18 May at the outset at the time of the strike commenced where there appears to be a complaint about the attitude of the Construction Manager, Peter Jewell and Tony Mavromatis has indicated that unless his attitude improves there will be continuing problems on the site. There was further discussions yesterday, sir, involving all relevant shop stewards and Noel Washington from the CFMEU and Craig Johnston, about the conduct of Peter Jewell.

PN20

It was raised by Mr O'Driscoll there has been provocation and one example given was the removal of commissioning barricades, which were used to effect handover to the operations stage of the project in certain areas, which were removed last Tuesday and the complaint about that conduct and Craig Marshall, assistant shop steward for the AMWU said that that type of conduct will continue. So there is an environment where there is clear threats of ongoing problems and many of the disruptions are packaged as health and safety issues but these area seasoned players that are attempting to complete this project and we say that a lot of these problems are in fact artificial and just generating disruption to the project.

PN21

Numerous disruptions have been raised as a result of matters from Dennis Thompson, Health & Safety Rep for the CFMEU, in relation to Ron Gee Enterprises and on 11 May, set out in the material, in a conversation Thompson with George Korolew, the site Health & Safety Manager, O'Driscoll overheard him pointing out that the issues concerning Ron Gee were not just about safety but personal. We don't know what that means but it seems to justify our concerns that the issues being raised are more about disruption than safety.

PN22

There was an issue raised regarding the use of xylene. We believed that issue had been dealt with by 15 May where Ron Gee responded to recommendations from the Workcover inspector, but Dennis Thompson insisted that no further work be done in relation to Ron Gee jobs until all the recommendations were implemented, even in respect of work that was unrelated to the use of xylene. Some of the other issues that have occurred this year are 27 March. There was stop work as a result of the scaling down of employees by the AMWU on that day. Again that was raised as part of a purported safety issue.

PN23

And on 28 March you, sir, issued a direction to all unions here that there be no further industrial action commencing 29 March and that each continuation of industrial action each day would be considered a breach of that direction and, despite that, on 30 March there was withdrawal of work involving the AMWU primarily, but then the CFMEU joined in that activity. Again purportedly in terms of safety issues and there was not a full return to work until 3 April. Those are essentially the issues. We say we are really being played ducks and drakes where industrial disruption - industrial activity is being cloved by the suggestion that there are health and safety issues that appear to be and seem to be chronic on the site.

PN24

We accordingly seek an order under section 127 directed to all unions for a period of three months, keeping our fingers crossed that the project can be completed over that time. In terms of the discretion whether to make the order we have built into the order preserving the right, of course, of any of the unions or their members not to work in respect of genuine health and safety concerns where there is no other work that could alternatively be done, because we anticipate that will be the response to us that they do have genuine safety issues, and we say well if that is right you are protected in relation to this order.

PN25

But we do have a history of industrial action. Most recent the strike that commenced on 18 May and there is no suggestion that any of this is protected in any way, so that is another relevant matter in the discretion. Further, although the relevant site agreement has expired, there was an exchange of letters between the parties which was filed before you, sir, on 7 February, extending the period of the certified agreement to cover completion of the project, but the spirit in which that exchange of letters was involved seems to have evaporated.

PN26

Unless any of the respondents require, we don't propose to call Mr O'Driscoll or Mr Jewell unless there is a requirement for them to give evidence in terms of being cross-examined.

PN27

THE COMMISSIONER: Thank you, Mr Bourke. Who is going first, gentlemen? Mr Johnston.

PN28

MR JOHNSTON: Commissioner, we don't concede any of the allegations set out in the application. A lot of them seem to be half truths, innuendo and to give an example, sorry, I don't know the bloke's name, Mr Bourke, is it, said that Mr O'Driscoll says he believes he heard something that Mr Thompson said to Mr Korolew but Mr Korolew as the company rep doesn't say that it was said, just as an example. So we don't concede any of the allegations. Commissioner, in considering the 127, obviously you know the act a lot better than I and it talked about threatened, impending or probable action.

PN29

There is no threatened, impending or probable action. There is no action at the moment. There was a dispute last week over - just to go over it very briefly - over an occupation, health and safety issue where the company in clear breach of the Occupational Health & Safety Act determined to stand people down on the basis that there was an agreed area that was unsafe to work. The company did accept that. Workcover accepted that. And then they decided they would take people off the clock, and that unfortunately caused some frustration by the members and they did go into dispute, which was an unfortunate event.

PN30

However, even if they sought their orders in the terms that they say, and Mr Noonan will come to that in a minute, it will not stop any health and safety issues. And my understanding of being down there yesterday, the issue had been about a number of procedures being negotiated and agreed on the job to do with occupational health and safety, how work is handed over and the company continually breaches those. So we would seek, Commissioner, that you don't grant the order. We would certainly seek to have some discussions with the company, as we did yesterday.

PN31

They were to have further discussions yesterday on a number of matters and then if they could not resolve it as per a memorandum of understanding, they were then to come back to the union officials sometime today. And there was a board of reference I understand that was set up, Commissioner, under your auspices and the company has refused to use that to try to, if you like, go through some of those issues, and I am talking there about the agreement on commissioning, agreement about handing over areas that they believe are ready for commissioning, where it has been agreed with the unions so that there is not a - people working unsafely in those areas. Those issues to be, if you like, processed through that board of reference.

PN32

So, Commissioner, as I say, we don't believe that - well, quite sure there is no probable, impending or action happening and as such we don't believe that you should grant the order.

PN33

THE COMMISSIONER: Yes, thank you. Mr Noonan.

PN34

MR NOONAN: Commissioner, I support the submission of Mr Johnston but there is another matter I would wish to bring to the Commission's attention. That is that we haven't been served - the CFMEU hasn't been served by the applicant, to my knowledge, with a copy of the application, as is required under rule 25 of the Commission. I had a conversation with Mr Bourke and his instructor prior to the proceedings commencing this morning and it is apparent that there has been an error in the faxing of the application and the witness statements attached to it - or the amended application, we still haven't seen the original application either, Commissioner, to the union.

PN35

Or at least to the state branch of the union, and the facsimile identified on the front page of A1 in respect of State Secretary of the CFMEU, is not a correct fax number for either the FEDFA Division or the Construction Division of the CFMEU in Victoria. Commissioner, I have sought to speak to my national office prior to coming here and I have spoken to the administrative person who is responsible for the receipt and distribution of applications which come to that office and she informs me that they don't have a copy of the application either. Now - - -

PN36

THE COMMISSIONER: Well the facsimile number that is on here, it has an 03 prefix, so they would not have gone to New South Wales anyhow.

PN37

MR NOONAN: I think for completeness, Commissioner, I should say it is the National Secretary. If you see above State Secretary, CFMEU, there is one with an 02 fax number.

PN38

THE COMMISSIONER: Where? Under National Secretary?

PN39

MR NOONAN: Yes.

PN40

THE COMMISSIONER: Yes, sorry I have picked it up. Yes, you are right.

PN41

MR NOONAN: Yes. Now, the other side have told me that they have got a fax receipt for that number. I must admit I haven't actually checked if that is the correct number for the national office at this stage as I have been under - I have only become aware of this application this morning. It is possible it has been served up there and hasn't come through the system to the Victorian branch yet, but certainly we haven't received it at the state office and that is because the fax number is wrong. Our primary submission is to support Mr Johnston's position, that the matter should not proceed and the situation at the moment is that my instructions are that all employees are at work as normal and there is no industrial action occurring.

PN42

Further we would say that there is no industrial action threatened or probable. I have had an opportunity, very briefly prior to coming here, to have a look at the application that was served on the ETU and I have sought to have a look at it and get some instructions. There is a fair bit of material there. If the Commission is against Mr Johnston and us on the question of dismissing the application we will be pressing for an adjournment and I might say a few things in support of that now, if the Commission pleases.

PN43

THE COMMISSIONER: Yes.

PN44

MR NOONAN: What we would say is that there is no industrial action occurring. We would further say that - from the CFMEU we would say that there is no intention to take any unprotected industrial action at the site and we give a commitment to the Commission and the other side that that is not going to happen. Thirdly - so, in relation to that we say that - well, thirdly I should say, that we haven't had an opportunity to study properly the application, the draft orders or the witness statements. I have started to have a look at them, I have started to get some instructions. There are a range of people involved in those statements and there are a number of serious allegations made in there.

PN45

Commissioner, we would want to thoroughly examine that material and try and ascertain the veracity or otherwise of it. My preliminary instructions are that there are a number of matters in there which are at this stage and will be strongly disputed. It would be likely that we would wish to cross-examine the witnesses who have sworn those statements, and in addition to that, Commissioner, we would have to give serious consideration to the calling of witnesses to rebut some of that evidence and provide evidence as to the serious nature of the occupational health and safety breaches, which we say have occurred at the site.

PN46

And on any balance we would be prejudiced by the matter proceeding at this short notice without a proper opportunity to seek advice about the matter and to properly study the witness statements that have been served, and we would wish to consider the calling of witness evidence ourselves and we would, of course, be prepared to provide draft statements to the other side before the matter went ahead. So, that is really the secondary submission, Commissioner, and we say that there is some balance in our favour on the basis that there is no industrial action occurring at the site at this time and no prejudice to the crew on the other side by the matter being adjourned. If the Commission pleases.

PN47

THE COMMISSIONER: Yes, Mr Noonan. Thank you. Mr Coffey.

PN48

MR COFFEY: If the Commission please. Commissioner, obviously the last dispute was a bit unfortunate but I am of the opinion it was an OH&S problem and, just to back up Mr Johnston and Mr Noonan, if you aren't going to dismiss this today, I only received these documents at 8 o'clock this morning, so I haven't had a really good chance to look at them either, so we would be seeking an adjournment. Thanks, Commissioner.

PN49

THE COMMISSIONER: Anyone else? Mr Bourke.

PN50

MR BOURKE: Thank you, Commissioner. Commissioner, can I first deal with Mr Johnston's points. We accept that as of 5 pm last night there was no industrial action on foot but we say given the whole history of the project the whole environment smacks of further probable, threatened industrial action and we have had a whole series of threats over the last week. Further, Mr Johnston says, "well, it is all health and safety issues". As we have put, that right is preserved in the order proposed. What we want is with a section 127 order it does put the acid on the parties to be fair dinkum when they raise health and safety issues.

PN51

That is what we want. If they are fair dinkum when they raise a health and safety issue we really haven't got a complaint. Our concern is they are not being fair dinkum at the moment. In terms of the board of reference issue, that hasn't unfortunately worked in terms of keeping the project moving, and that can only work where both parties are committed to that approach. And we say that commitment just has not been there in terms of the unions. In terms of Mr Noonan's position, if they have a problem with their federal office where they can't get the documents, we appear - but that is not a basis for an adjournment.

PN52

We have the facsimile transmission sheets which indicate the first application being forwarded on the Monday, the amended application last night. They are the same federal fax number as is on the listing sheet, which we presume they got. We can tender those documents, Commissioner. We are - - -

EXHIBIT #A2 FACSIMILE TRANSMISSION SHEETS

PN53

MR BOURKE: We have no - we object to that adjournment. We are prepared to exceed to a short standing of the matter down. They are now provided with the hard copy of the documents. Circumstances where they were on notice for Mr Noonan to examine the documentation. We further say that Mr Noonan has indicated some form of commitment there won't be industrial action. We do not wish to proceed against the CFMEU if they were prepared to give an undertaking in the form of the proposed order set out in the section 127 application. We have put that proposal to Mr Noonan. He has indicated he would - - -

PN54

THE COMMISSIONER: Well he would need to get some instructions off his secretary I would suggest.

PN55

MR BOURKE: - - - need to get some instructions. So we have no objection to the matter being stood down for Mr Noonan to deal with that issue. There is no basis for the - further we say that in terms - the fact that they were on proper notice through their federal office and given that the whole concept of the act is for prompt relief there is no basis for an adjournment and in terms of Mr Coffey, the CEPU, he has put forward no basis for why the matter should be adjourned. If the Commission pleases.

PN56

MR NOONAN: Commissioner, I don't wish to - - -

PN57

THE COMMISSIONER: Yes, Mr Noonan.

PN58

MR NOONAN: - - - drive the matter to death, but I should just point out I never conceded that our national office has received it. I have tried to - - -

PN59

THE COMMISSIONER: I am aware that you did not concede it. You said that you had tried to confirm it. You had not been able to. I accept that.

PN60

MR NOONAN: So there is no concession on that matter. Secondly, in relation to an undertaking, Mr Bourke, did in an aside ask me about the question of an undertaking. It wasn't clear to me that that would be in the form of the draft orders and we would have something to say if the matter proceeded about the form of those draft orders and at this stage I couldn't give an undertaking - well, I would want to get some instructions for a start but I would have some concerns about the form of the draft orders. If the Commission pleases.

PN61

THE COMMISSIONER: There is no doubt that the history of that site is a sorry one. I do not think anyone can be very proud of the industrial relations effort or non-effort that has gone on there from both sides. And I have said that before to the parties. There is nothing secret about that. I have said it on the record in hearings, at meetings in my chambers and to be quite frank, the board of reference appointed by the Commission is not necessarily enamoured with the place either. I am concerned that the parties get natural justice though and I think they have got a right to get instructions and decide if they need to or whether they need not to engage counsel to represent them.

PN62

I do not intend to grant a lengthy adjournment. No one is going to be waiting around for a week for this matter to come back on. Give me my diary. I do not care whether you have got other appointments or not, gentlemen. The dates I set down ..... Tuesday the 29th. Tuesday, 29 May at 1.30. 1.30 pm. There is to be no shenanigans. I issued orders, those orders are still in effect and if any bonehead cannot read that and understand they are still in effect, they had better get some other advice. If the parties can reach agreement prior 1.30 pm on Tuesday, you are to inform the Commission as to whether you wish to proceed or not, Mr Bourke.

PN63

MR BOURKE: Yes, thank you, sir.

PN64

THE COMMISSIONER: And you are to make every effort - the parties are to make every effort to resolve this issue. There is one last final gasp because I would be dishonest If I did not say I have got some real problems about the site. The Commission is adjourned.

ADJOURNED UNTIL TUESDAY, 29 MAY 2001

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AMENDED APPLICATION AND PROPOSED NEW DRAFT ORDER REMOVING AWU AS RESPONDENT AND DEFINING OF EMPLOYEE MEMBERS IN 2.1 OF DRAFT ORDER PN17
EXHIBIT #A2 FACSIMILE TRANSMISSION SHEETS PN53