C2001/2485, Transcript of Proceedings [2001] AIRCTrans 1293 (28 June 2001)

AUSCRIPT PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2001/2485
C2001/2486

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Built
Environs Pty Limited for an order to stop
or prevent industrial action by the CEPU
and CFMEU

RESTRICTION ON CERTAIN ACTIONS IN TORT

Application under section 166A of the Act re
action against CEPU, Secretary, Officials
and Organisers including Mr Bob Geraghty and
Mr Wilf Deakin (officers of the CEPU) and the
CFMEU, the Secretary, Officials and Organisers,
including Mr Martin O'Malley, Mr Ben Carslake
and Mr Darren Roberts (officers of the CFMEU)
in respect of industrial action taken and
organised by them at the ACI site, 625 Port Road,
West Croydon, SA.

ADELAIDE

3.11 PM, THURSDAY, 31 MAY 2001

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, can I have some appearances please.

PN2

MR B. GRANTHAM: Sir, I appear on behalf of Built Environs Proprietary Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grantham.

PN4

MR GRANTHAM: And with me, sir, is MR M. ALLEN, who is the construction manager and MR C. NEWBLE, project manager for the project, being the ACI site on Port Road, West Croydon.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, M r Grantham.

PN6

MR W. DEAKIN: I appear on behalf of the CEPU Electrical Division.

PN7

MR M. O'MALLEY: I appear for the CFMEU. With me is MR B. CARSLAKE from the same organisation.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Malley. Mr Grantham.

PN9

MR GRANTHAM: Sir, the 127 part (2) application before you relates to industrial action that we would say has occurred and is being threatened to continue at the ACI site on Port Road, at West Croydon. Sir, a brief outline of the project is that there has been a tearing down, if you like, of some of the existing facilities at ACI, some sundry relocation of some of their facilities to make way for a new bottling line to be - and the work to be done with Built Environs as the principal contractor. Now, with regards to the background, sir, we go back perhaps as far ago in relation to this particular project, to a letter from the CFMEU dated 10 October 2000, seeking a discussion with Built Environs with regards to the project and a site allowance and I wish to tender that to you, sir.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grantham, we will call that A1.

PN11

MR GRANTHAM: A meeting subsequently took place between the secretary of the CFMEU, Mr Martin O'Malley, and Mr Matthew Allen on 18 October of last year. I am instructed that Mr O'Malley in those discussions wanted to discuss a site allowance and a site agreement for the ACI project, and for your information commonly referred to as "AD6", that specific project. Matthew Allen's response was that the company was not proposing to enter into any agreements for the project, nor enter into a project specific agreement. There were sundry other bits and pieces - a bit of shooting of the breeze - which isn't relevant today.

PN12

On 14 March this year two officials from the CFMEU two officials from the CFMEU, Mr Ben Carslake and Mr Justin Fion, attended the ACI site unannounced. They eventually spoke to Matthew Allen. During this discussion Ben Carslake told Matthew Allen that they were after a project agreement and a site allowance. Matthew Allen's responded by saying that: Built Environs did not propose to have a project agreement, nor a site allowance. Mr Carslake's response at the time was that, and I quote from contemporaneous notes:

PN13

We are heading for confrontation.

PN14

It was at this point the union representatives immediately turned to issues of safety reps on-site. A request was then made by the union reps to tour the site and talk to the men. A disagreement ensued with regards to the union reps touring the site. Matthew Allen refused open access to the entire site, primarily as they were not inducted. Secondly, we say there had been no prior notification. The police attended the site shortly afterwards. They were called by Matthew Allen to attend the site and I make the point that how that came about in terms of sequence of events is that in the disagreement that was being had at the time, then, Carslake - perhaps in a goading fashion - said to Matthew Allen: go on and call the police.

PN15

The police attendance really just served to demonstrate that the police were reluctant and nervous to involve themselves in the matter. Matthew Allen decided that for a number of reasons, including the police reluctance to put a position - other than they were reluctant to involve themselves in industrial matters - that he reluctantly agreed for the union reps to talk to the men during the meal break. And when I say "the men", it is my understanding that what we are talking about here is a number of employees of various subcontractors. Now, at this particular stage in March of this year when the site is in its early stages - the project is in its early stages - primarily to subcontractors who were present on-site, being P.T. Demolition and McGuinness Rigging.

PN16

After the CFMEU addressed the men in the lunch room, P.T. Demolition and McGuinness Rigging employees left the site for the rest of the day. At approximately 12.45, a further meeting took place between Ben Carslake, Justin Fion, now joined by Wilf Deakin on-site. Met again with Matthew Allen and a Mr John Sheens, another construction manager with Built Environs. Ben Carslake, on behalf of the three union reps put a series of demands to Matthew Allen. They were, firstly, for a project agreement, union access, unfettered access to all work zones, no police on-site and upgraded first-aid procedures. There had been suggested that there were concerns about employees' knowledge about first-aid facilities and access to those facilities.

PN17

A meeting was then requested by Justin Fion from the CFMEU for the BTF, Building Trades Federation, to meet with Built Environs on Friday 16 March of this year. That meeting did take place with Ben Carslake of the CFMEU, Dave Smith of the CEPU Plumbing Division - - -

PN18

THE SENIOR DEPUTY PRESIDENT: When was that, Mr Grantham?

PN19

MR GRANTHAM: 16 March of this year.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN21

MR GRANTHAM: Attending a meeting with Mr Matthew Allen present, David Steel from Business SA and myself in attendance. There were three issues raised by the union reps and, again, it is our clear understanding that they were attending under the umbrella of the Building Trades Federation. Firstly, unfettered access to the site for unions without notice, that is, no requirements to give any notice at all in accordance with the Federal Act, and unfettered in that they were seeking that a union official could role up, unannounced, and access any part of the site at their will.

PN22

The second issue that was raised was the rejection of the safety officer that was engaged at the project. Thirdly, a demand for a project agreement in the same terms as the Pelican Point Power Station Construction Agreement. At that meeting the union representatives were advised that Built Environs did not intend to enter into a project agreement and, therefore, neither make it a contractual obligation for subcontractors to observe. Shortly after this meeting, the union representatives, being Ben Carslake and Dave Smith from the Plumbing Division of the CEPU, met with employees of various subcontractors and later advised Built Environs, Mr Allen, that the men had voted for a project agreement.

PN23

The union representatives further advised they were to draft an agreement and put it to the men for approval and then they would give it to the company for one week to consider. A section 99 dispute notification was lodged and heard by Commissioner Lesses in this jurisdiction - that dispute notification having been lodged on 20 March. A recommendation was then issued by Commissioner Lesses dated 26 March and, for completeness sir - and I emphasise that - for completeness, I will tender that recommendation and I will make some comments about that recommendation.

EXHIBIT #A2 RECOMMENDATION

PN24

MR GRANTHAM: Sir, the conference did not have any transcript taken of it, which perhaps is unfortunate, which, with due respect to Commissioner Lesses, I suspect the lack of transcript unfortunately caused some confusion in his mind with regards to a previous project that had been undertaken by Built Environs the year before being called AD5. If you recall, the project that we are here for today is titled the AD6 project. As you see from the recommendation, there has been some confusion between the AD5 project and it is as if we were there in relation to that project, AD5, which we weren't.

PN25

Now, unfortunately, sir - and I must say that I think also part of the confusion came about because of a direct tactic by a representative of the CFMEU to try and mask issues with regards to the AD6 project as one of safety. There was some suggestion that AD5 project had a history of poor safety, which was refuted and rejected, and all sorts of scurrilous allegations about cranes being used on the AD5 project and placed in certain locations so they were outside, supposedly, some fence. This was all a ruse to try and argue that because it was outside of a fence it might mean a different award or it might mean the project could be deemed something different, when, really, in all honesty, the crane position was purely because of the geographical location of the work.

PN26

That sort of confusion was added, unfortunately, in that conference. So I don't place too much on this recommendation, sir, just to make you aware a conference was convened by Commissioner Lesses. The primary issue that the Commissioner focussed on seemed to be an issue about right of entry. I particularly draw your attention to page 2 of that recommendation and the second paragraph, second sentence, where it says:

PN27

A number of contracting company employees had walked off the site on one occasion in relation to workplace safety issues and were paid for such time they were not at the site.

PN28

We don't agree with that, sir, and with all due respect to Commissioner Lesses, we can understand that there may have been some confusion. We say they walked off the site as a demonstration for a project agreement. On 9 April of this year another meeting took place on the site. In attendance was Ben Carslake of the CFMEU, Trevor Trewartha of the AWU, Nigel Lean of the CEPU Plumbing Division and Mr Wilf Deakin of the CEPU Electrical Division, with Matthew Allen, Connor Newble, and myself in attendance.

PN29

The discussion was solely about a project agreement. It was solely about the union seeking a project agreement and a clear indication from the unions that if a project agreement wasn't forthcoming there would be disputation at the site. Again, at this meeting the company's position was put that the company did not intend to enter into a project agreement and their position was the agreements that the sub-contractors and indeed Built Environs had should be allowed to do the work that they were intended to do. On 1 May - and just in conclusion, that is about where that meeting ended.

PN30

On 1 May, Mr Wilf Deakin dropped off at the security office at the ACI site a draft agreement to be passed to Matthew Allen. I would seek to tender a copy of that, sir.

EXHIBIT #A3 DRAFT AGREEMENT

PN31

MR GRANTHAM: Just a couple of points I will refer you to in this draft. I have already mentioned to you, sir, before that on previous occasions the unions were seeking a project agreement in terms of - in the same terms as the agreement that applied to the principal contractor and a number of sub-contractors at the construction of the Pelican Point Power Station. If you can look to page 4 of the agreement, the editorials for this draft apparently weren't conclusive and you can clearly see that, in 3.2, Pelican Point Project is still nominated.

PN32

The other point I will take you to, Commissioner, begins on page 21 and it is just a list of the potential signatories to the agreement that this draft was suggesting would sign. Our understanding is that that is consistent with previous meetings where they were deeming themselves to be the Building Trades Federation. On 8 May a meeting was held on site. My understanding is that the purpose of that meeting was that the unions were seeking yet again a response in relation to the draft. In attendance was Ben Carslake, Wilf Deakin, Nigel Lean and John Gresty of the AMWU, Matthew Allen, Connor Newble and myself.

PN33

So the meeting lasted probably 5 minutes. The meeting really went only to commencing with the company stating quite clearly that they were not going to, if I can quote, "stand around and piss in a pot" for an hour or so. The simple position was the company was not interested in the project agreement, that the agreements that Built Environs and other contractors and sub-contractors had should be allowed to do their work for the project. The meeting concluded. As the parties were breaking up various threats were made with regards to potential action.

PN34

Specifically, Mr Carslake talking about - in relation to contractors having existing agreements, suggesting that those agreements only went to building projects and not engineering projects and therefore they were not limited in terms of pursuing industrial action and bargaining periods for separate different agreements for those contractors. On 28 May, Monday last, Wilf Deakin, Ben Carslake and a Mr Darren Roberts, from the CFMEU, attended the site.

PN35

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Grantham, when was the earlier meeting held? The meeting prior to 28 May, the very short - - -

PN36

MR GRANTHAM: The very short one when nobody stood near a pot was on 8 May.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN38

MR GRANTHAM: Going to 28 May, at approximately 12 pm Wilf Deakin from the CEPU Electrical Division, Ben Carslake from the CFMEU and Darren Roberts from the CFMEU arrived on site to have a meeting with numerous workers during the lunch period. Apparently prior to that all sub-contractors on site were notified of a meeting at lunchtime in the sheds with the unions. Ben Carslake made a request to Mr Connor Newble to walk around the site after the meeting. At approximately 1.15 the three union officials came to Mr Newble's office and asked to be escorted around the site to see workers from Valtec, MNI Steel Fixers, GLT Bricklayers, Seasonair and Cladding and Roofing.

PN39

They were asking all the workers to attend another meeting. Apparently all did, except Seasonair and employees of a contractor called Cladding and Roofing. Those two companies' employees did not attend the meeting. Ben Carslake said that the rest of the workers were waiting in the sheds and the meeting wouldn't start with the workers mentioned above until they went to the sheds. Indeed, Mr Deakin approached the employees of Cladding and Roofing seeking them to attend the meeting, spoke to them for some 20 minutes. In the end the employees of that particular contractor did not attend any meeting.

PN40

Finally, after, if you like, a rounding up of the troops, the employees or various sub-contractors, excluding Cladding and Roofing, the meeting started at approximately 2 pm. At 2.30 pm workers started emerging from the lunch sheds, started packing up and leaving the site. The three union representatives went to Mr Newble's office and informed him that the workers wanted an engineering agreement and had decided to go home for the day. They also advised that they wanted elected safety representatives who had been elected recognised. Mr Carslake further advised there would be further meetings.

PN41

The inference that was taken at the time was further meetings that would take some time to perhaps coordinate and then result in further walk-offs and that they would come back to the site the following day at 2 pm to see Built Environs to discuss the above issues but would also be dropping off brochures to workers for safety representative training and workers compensation training. At - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Perhaps while you are looking for that Mr Grantham, was the issue of a claimed site allowance or site agreement raised at all in the meeting of 28 May?

PN43

MR GRANTHAM: What I am looking for, sir, is a copy of documentation that was being distributed at the meetings which go to very fact that that is what they were seeking. I am just looking for the copies that I prepared prior to coming in, sir, if you just excuse me for a moment. Unfortunately I can't find the copies but I only have one copy available to me. I apologise to my friends to the left for not being able to give them a copy but if I may just at least show them before I pass it to you.

PN44

THE SENIOR DEPUTY PRESIDENT: We would arrange for a copy to be provided to the unions.

PN45

MR GRANTHAM: These fliers were distributed at the meetings on the 28th.

EXHIBIT #A4 FLIERS DISTRIBUTED AT MEETING DATED 28/05/2001

PN46

MR GRANTHAM: Just if I can go back, you were asking me a question, sir. Your Honour, if you could repeat your question to me.

PN47

THE SENIOR DEPUTY PRESIDENT: Well, you have provided me with a copy of what looks to be a newsletter, Mr Grantham. Was this newsletter particularly in relation to its opening paragraph which does relate to the issue of a site allowance, raised in the course of the meeting on 28 May or was the issue of site allowance discussed again in that meeting?

PN48

MR GRANTHAM: What occurred was that at approximately 2.40 pm and this is after the men had begun leaving the site en mass, at approximately 2.40 pm Ben Carslake, Wilf Deakin, and Darren Roberts went to Mr Newble's office and said that the workers want an engineering agreement. The interpretation of that was that it was the - a continuance of the claim for a project agreement but they did use apparently the words "engineering agreement."

PN49

THE SENIOR DEPUTY PRESIDENT: This document A4 that you have given me was this provided to the company in the course of this meeting?

PN50

MR GRANTHAM: No, it wasn't. It was fairly common knowledge.

PN51

THE SENIOR DEPUTY PRESIDENT: Was it common knowledge before the meeting or after the meeting?

PN52

MR GRANTHAM: It was common knowledge after meeting that that had been liberally distributed at the meeting with employees that finally after rounding up of employees took place at around 2 pm that day. I am just reading the notes of Mr Newble that during the entire day or the time that this went over which was obviously over a couple of hours apparently Mr Wilf Deakin had been trying to solicit from Mr Newble the project value. Mr Newble's clear understanding at that time was that it was all about site allowances that are attached to project values and scales etcetera that are particularly common of course in the building industry, and commercial building industry.

PN53

THE SENIOR DEPUTY PRESIDENT: I had heard of them.

PN54

MR GRANTHAM: Yes. Again the three union - well, this time the three union officials at about 2.45 pm were taken on request to see cladding and roofing. Again, Mr Deakin spoke to cladding and roofing for approximately 10 minutes - when I say cladding and roofing I meant their employees - they ultimately started to pack up at approximately 3 pm with a normal finishing time here is 3.30 pm. At approximately 3 pm the three union officials left the site. On 29 May, the following day, at approximately 2 pm, Ben Carslake and Darren Roberts, again attended the site requesting a meeting - wanting to talk to - and bearing in mind this is 2 pm in the afternoon - wanting to talk to their elected safety reps. They were refused that request and in reaction to that there was a threat to put a picket on the gate for the following morning, 30 May.

PN55

Just with regards to wanting to talk to our "our" elected safety reps, apparently in the meeting that resulted ultimately in a walk out meeting at approximately 2 pm the union representatives coordinated - I use that word liberally, the election of safety representatives that met with their approval, notwithstanding that we say that there is - that the occupational health and safety regulations under the Occupational Health and Safety Act are being clearly met in terms of health and safety personnel.

PN56

So that what I have mapped out to you is quite a significant history of various unions, including the CEPU electrical division and the CFMEU who are here today consistently requesting a project agreement and on a consistent basis making numerous threats about the project suffering in terms of industrial disputation if that request for a project agreement was not met. We had an experience to stoppage in March. We experienced another stoppage and a homer on Monday of this week. We say that given the history, given the fliers, the withdrawal of labour, the coercing of people to go on strike is clear evidence that whilst industrial action may not be occurring as we speak it is clearly threatened, it is impending and it is very probable to occur in the future. I am obviously quoting from section 127(1) of the Act whereby:

PN57

If it appears to the Commission that industrial action is happening or is threatened, impending or probable in relation to an industrial dispute ...(reads)... stop and not occur.

PN58

Sir, the Built Environs Proprietary Limited currently have a certified agreement in place that clearly covers this particular project. That agreement came into force on 16 March this year and out of sheer coincidence replaced the previous agreement that in turn would have been capable of covering the project where its nominal life had expired on 16 March this year. So an agreement was in place that covered the project for Built Environs. Its expiry date was 16 March this year. On 16 March this year the agreement, if you like was renewed. I would like to tender that to you.

PN59

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #A5 CERTIFIED AGREEMENT DATED 16/03/2001

PN60

MR GRANTHAM: This agreement was certified, as I said on 16 March by Commissioner Lesses, the title of the agreement is the Built Environs Proprietary Limited Engineering Projects Enterprise Agreement 2001-2003. The agreement if I go to clause 3:

PN61

Shall be read solely in conjunction with the South Australian Civil Contracting Industry Award 1999 ...(reads)... to the extent of the inconsistency.

PN62

Sir, the south Australian Civil Contracting Industry Award is very similar in terms to the AWU Construction and Maintenance Award 1989. I am sure you would be familiar with the scope of that award which is the same as this particular award in applying to civil and engineering construction projects. On last week the CFMEU caused to have served on Built Environs Proprietary Limited a notice of initiation of a bargaining period. I would also like to tender that to you sir.

EXHIBIT #A6 NOTICE OF INITIATION OF BARGAINING PERIOD

PN63

MR GRANTHAM: Now, notwithstanding the serving of the bargaining period notice, quite clearly, Built Environs do have an agreement in place that covers that particular project for its own employees. Under division 8 of part 6(b) where we have negotiations for certified agreements, initiation bargaining periods, etcetera, I specifically go to section 170MN of the Act where it says:

PN64

No industrial action during term of agreement.

PN65

And that section 170MN quite clearly during the normal life of an agreement, protected industrial action, or industrial action cannot be deemed to be protected, even if a party has gone through the motions of serving a bargaining period notice. May I also add the confusing aspect of that is that the union, prior to encouraging and coercing employees to take industrial action on the 28th, they serve a bargaining period notice, but don't wait to serve the notice of intention to take industrial action. I mean, there is no way the union could undertake protected industrial action during the life of that agreement in any event, but the confusing thing is they then go through the motions of a bargaining period notice and even then they don't wait until that process is complete. Notwithstanding the completion of that process still would be null and void - very confusing.

PN66

The point I am making is that twofold, is that the bargaining period notice is null and void. There is an agreement in place but, importantly - importantly - the issuing of that bargaining period notice is just yet another strong piece of evidence of what the union's intentions have been all along. They are wanting a project agreement and they are willing to raise the ante. Now, the issuing of bargaining periods is not mandatory for the making of a certified agreement. Indeed, many certified agreements, be they non-union, or be they with a union, do occur without bargaining periods being put in place, and I'm sure that every union official in this room has been involved in the making of an agreement where a bargaining period and a notice of intention to take industrial action, etcetera, has not occurred.

PN67

Why then do the initiation of a bargaining period? Only for one reason. To preserve the rights to go down the path of taking protected industrial action. It is the first action in a three step process that allows you to take protected industrial action. Serve the bargaining period notice. Certain time frames must be met, 7 days, prior to the taking of protected industrial action. However, prior to it, a notice of intention to take industrial action must be served with 3 clear working days notice. Certain specificities about the nature of the type of industrial work, and the third condition is that a genuine attempt at bargaining has been undertaken. So the point I am emphasising there is that the issuing of the bargaining period notice by the union against the company is clear evidence that the union is wanting to go down the path of industrial action. There is no other reason to serve the bargaining period notice, except to reserve your rights to go down that path.

PN68

Now, I made the point earlier, notwithstanding, even if they had have completed it with the issuing of a notice of intention to take industrial action, industrial action is not deemed to be protected during the nominal life of an agreement. It was my clear advice, sir, earlier that we would actually be here with a number of parties with a number of applications pursuant to section 127(2). I am aware of certain circumstances that have prevented that occurring and my understanding is that it will occur and they go to a number of subcontractors who are engaged on the site. An example I gave earlier - sorry, it was in relation to some disputation back in March.

PN69

If we go back to Monday, the 28th of this month, a number of companies, or contractors employees walked, as I advised you. Two examples of that are Valtec and McGuinness Rigging, who both have existing nominal life agreements in place, and it is my understanding that those sorts of subcontractors may be looking at applications before this Commission in relation to that industrial action and the pending threatened industrial action at that site. I would also, sir, like to take you to section 170NC of the Act, where it is a penalty provision under the Act for a breach of this specific clause, which is:

PN70

Coercion of persons to make, vary, or terminate certified agreements.

PN71

Obviously, quite clearly, we are saying: persons who are taking, or threatening to take industrial action in this case to coerce and force - attempt to coerce and force Built Environs into a project agreement. I go back now to 127(2). We seek that the Commission may make such an order for industrial action to stop, or not occur. On the application of Built Environs, who are a party to the industrial dispute and also, sir, are - well, I am open to discussion on this point - but could also be deemed to be a person, or made up on a person - persons who are directly affected, or who are likely to be directly affected by the industrial action - but I think in any event 127(2) part (a), is certainly a party to the industrial dispute.

PN72

Quite clearly, just on the point or the issue which is perhaps not necessary, but I will cover it in any event, it goes without saying that disruption to this project will have a direct impact upon Built Environs and could cause them serious and significant losses. Not uncommon nowadays of course in the industry - and has been the case for many years - that projects completed within certain time frames. There is not only obviously less disputation contractually about payments, etcetera, but also the issue of bonus payments to the contractor are at risk. Of course, they go into the total commercial consideration when tendering for these type of projects.

PN73

The Built Environs stand to incur significant losses if industrial action continues as has been threatened, and continues to be threatened. We have seen the evidence of those threats being carried out. I am not looking at some notes here. On 9 April of this year where Mr Wilf Deakin said that: Built Environs would be quite belted around by the BTF if the Built Environs didn't pay $3.50 site allowance. The $3.50 site allowance is, sir, as I understand it is the site allowance that was payable under the Pelican Point Power Station Construction Agreement

PN74

THE SENIOR DEPUTY PRESIDENT: The document you gave me appeared to mention $2.80.

PN75

MR GRANTHAM: Yes, sir, but if you look more closely there is also a further payment. Perhaps if you look at 11.2.3 of that draft agreement it talks about a site allowance of $2.80, but if you look down further, 11.2.31, there is an additional productivity payment at the rate of $20 per week and the rough deviser if you like of $20 divided by 30 is fairly close to 50 cents, so that takes us to about 3.30, so it's about the mark, if you like. There has been no doubt that that has been the agreement often referred to by the unions. Quite simply, sir, the company is in a position where they have an agreement that can do the work. There is no doubt the contractors on-site have agreements. This is the way of the world since we have had the ability to formally certify agreements. It is common now in the construction industry for companies to have an agreement that they carry with them from one job to another job.

PN76

I can see that there is the occasional project-specific agreement but, in the main, in the broader construction industry in South Australia, project-specific agreements are in the minority. Now, I accept - because I am sure my friends will raise - that there was one for the Pelican Point Power Station. There are other examples, but it is certainly not uncommon for companies to be engaged in the building construction industry and have an agreement for, say, a nominal life of 2 years and have been involved in a number of different projects under the one agreement. It is certainly not an uncommon feature in the CBD commercial building area. At this point, unless you have got further questions, sir, I might take a break to give you an opportunity to hear from the other parties.

PN77

THE SENIOR DEPUTY PRESIDENT: Before you do take your break, Mr Grantham, and before I ask the other parties to respond, I am just wondering whether you can assist me in terms of a number of questions. First of all, you mentioned the precursor to this project being ADI5, or AD5. Were Built Environs a contractor on that project?

PN78

MR GRANTHAM: They were the principal contractor.

PN79

THE SENIOR DEPUTY PRESIDENT: And did they have a site agreement specific to that project?

PN80

MR GRANTHAM: No, sir. They operated under the agreement that was replaced by the one that was certified on 16 March this year. There were a number of - there were attempts made, if you like, by union officials to seek from Built Environs a site allowance for that project. As a result of that, matters came before Commissioner McCutcheon in this jurisdiction and there were a number of hearings commencing in about February of last year. A number of hearings - I think 5 in total - I think the last hearing concluded in about October of last year and a decision came down shortly afterwards, where Commissioner McCutcheon had declined awarding a site allowance for that project because, of course, the days of site allowances are very different, as we know, compared to yesteryear when it was quite frequent for this Commission to entertain site allowance, conduct site inspections and determine a site allowance peculiar or pertinent to any particular job. That day has gone. There are different principles now that have to be met, and I will say this, I did not - I was not involved in those hearings but it is my understanding that the principles weren't met and the allowance was declined.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you. The certified agreement that you have referred to me, A5, relates to engineering projects. Can you just clarify for me how they are defined and, in particular, just reassure me in terms of the application of this particular project as an engineering project?

PN82

MR GRANTHAM: Yes, I am more than happy to do that, sir. Before I do, though, perhaps it may assist you that if you have a concern about the nature of this job and: is it engineering, is it entirely engineering - - -

PN83

THE SENIOR DEPUTY PRESIDENT: What I know about this job, Mr Grantham, I know from you. So I am - - -

PN84

MR GRANTHAM: I appreciate that. Could it be - - -

PN85

THE SENIOR DEPUTY PRESIDENT: - - - very much reliant on information in that regard.

PN86

MR GRANTHAM: I fully appreciate where you are coming from, sir. Perhaps could it be deemed to be partly building cover? Sir, I am more than happy to give you a further explanation of the project and all of that but can I say this? That whilst this agreement here, A5, talks about engineering projects, Built Environs Proprietary Limited have another agreement that pertains to what we commonly would say is the building construction industry, as opposed to engineering construction industry. So the field is covered. Built Environs have - if you like, operate two distinct divisions of the company, a building division and a civil and engineering division.

PN87

I am certainly not trying to escape, don't intend to avoid answering your specific questions, but for your own mind, if there is any argument that this agreement is deficient for Built Environs covering all aspects of the ACI project, there is no doubt there is an existing agreement with nominal life that would cover it. Now, I don't want to - I am not suggesting to you that their building agreement covers this job. I am not suggesting that at all. I am suggesting to you that this agreement is ample in covering the nature of the ACI project. Absolutely covers it.

PN88

For the purposes of today only, for your own mind, to avoid any confusion over any suggestion that: well, wait a minute, this project could be - perhaps there is building work involved, the company does have a nominal life agreement in place covering the building industry. I am not suggesting the agreement does cover the project but if it is suggested that this - - -

PN89

THE SENIOR DEPUTY PRESIDENT: You are saying the field is covered.

PN90

MR GRANTHAM: The field is definitely covered, in - and that is, there can be no suggestion, for example, that the industrial action of last Monday is in any way protected. Anyway, I will turn to your specific question. It would have to be said that principally this project is an engineering project. It is fundamentally going to have an empty building built or - this is a construction of an envelope that will be clad to house a bottle manufacturing facility. The project is heavily geared towards capital intensive equipment, which is the primary reason why these project values are so high. There are sundry earthworks obviously involved and steel fixing before the erection of - before the structural steel is erected and a framework put up to be clad to house this bottle manufacturing facility.

PN91

There have been the construction of a number of concrete walls going to a significant height of approximately 6 metres, which I believe has been brought about by requirements to meet EPA requirements for residents - - -

PN92

THE SENIOR DEPUTY PRESIDENT: No, that is all right, I think you have answered my question more than adequately for these particular purposes right now. You mentioned, Mr Grantham, the involvement of other contractors and foreshadowed there might well be action brought to this Commission by one or more of those. Can you give me an idea of the total numbers of the employees on the site and of those how many, in approximate or round about terms, are employees of Built Environs?

PN93

MR GRANTHAM: Yes, sir. The total number of employees of all contractors on site, including Built Environs, is approximately 50, six of which are employed directly by Built Environs.

PN94

THE SENIOR DEPUTY PRESIDENT: Okay. Now, you also provided me with a copy of a document that you indicated had been left at the site by one or more of the unions and it was proposed by the unions as a site agreement, I think I labelled this one A3.

PN95

MR GRANTHAM: What was liberally - - -

PN96

THE SENIOR DEPUTY PRESIDENT: Was there a covering letter that went with this document?

PN97

MR GRANTHAM: No. The company received on 1 May A3, delivered to a site security hut and ultimately forwarded onto Matthew Allen, as intended by Mr Wilf Deakin. What was liberally distributed on the 28th of the 5th was just 3 pages, if you like, which contained extracts, as I understand it, from the agreement in terms of wage rates and a memorandum - they are my words - titled: Stop the Rot. That was what was distributed on the Monday. I have no knowledge - I do not have any knowledge about whether A3 has been liberally distributed to employees, I don't know that.

PN98

THE SENIOR DEPUTY PRESIDENT: But it was provided to the company and you are saying - - -

PN99

MR GRANTHAM: It certainly was - - -

PN100

THE SENIOR DEPUTY PRESIDENT: - - - it was provided to the company via a security officer rather - with no accompanying correspondence with it.

PN101

MR GRANTHAM: No, just simply a draft, as you see it, dropped of by Mr Wilf Deakin at the security office with some instruction that: can you hand this to Matthew Allen?

PN102

THE SENIOR DEPUTY PRESIDENT: Thank you. That document, A3, proposes that there would be three unions as signatory unions to the agreement.

PN103

MR GRANTHAM: I would have thought there would have been more than that, sir.

PN104

THE SENIOR DEPUTY PRESIDENT: Four unions, sorry.

PN105

MR GRANTHAM: Yes.

PN106

THE SENIOR DEPUTY PRESIDENT: Now, can you tell me whether the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union have members on the site?

PN107

MR GRANTHAM: I believe it is possible they could have members with Seasonair. Certainly, their eligibility rules would allow them to enlist members from Seasonair.

PN108

THE SENIOR DEPUTY PRESIDENT: Thank you. Have they been involved in any of the discussions at all?

PN109

MR GRANTHAM: The Australian - the AMWU has been involved in one meeting only, that is the meeting whereupon Mr John Gresty attended back early May.

PN110

THE SENIOR DEPUTY PRESIDENT: The Australian Workers Union?

PN111

MR GRANTHAM: They attended a meeting, one meeting only, back - not at the same meeting that Mr Gresty attended, but the AWU attended a meeting, one only meeting, on 9 April. It was 8 May that John Gresty from the AMWU attended. They are their two single attendances.

PN112

THE SENIOR DEPUTY PRESIDENT: Now, your order, or the order that you have - - -

PN113

MR GRANTHAM: My apologies, I believe Mr Gresty from the AMWU has actually attended two meetings.

PN114

THE SENIOR DEPUTY PRESIDENT: Thank you. The order that you have outlined in your application, and I refer particularly to your section 127 application, focuses particularly on the two unions, the CEPU Electrical Division and the CFMEU. I just want to clarify, the order that you are seeking from the Commission is not one that is intended to cover the other two unions that we have just been talking about?

PN115

MR GRANTHAM: That is correct, sir, and, if you like, there are specific reasons for that. We understand and appreciate that it is a serious matter that we seek - firstly, it is a serious matter, this industrial action, and seeking to come to the Commission and obtain an order pursuant to section 127(2) is in itself a serious matter for consideration. We are also very mindful that - as everyone in this room, I am sure, is - these matters ultimately could be subject to some further processes, legal processes, perhaps ultimately into the Federal Court. Now, I don't pretend for a moment to - I don't wish for a moment to appear cute, but that is the simple fact of it, that if these events - if certain events unroll we could very well be considering action in the Federal Court.

PN116

For that reason we believe that one has to take great care in (a) justifying the granting of a section 127 order and also ensure that only parties that are truly relevant and can be seen to be relevant, not only by this jurisdiction but perhaps the Federal Court, that there is no - well, I put it in the vernacular - no holes there for things to fall through. Why the CEPU Electrical Division was specifically nominated and the CFMEU were, they were the two clear union parties that were involved in - directly involved in the stoppage last Monday. We understand that other unions and I am mindful that with Mr Lean sitting behind me from the plumbing division of the CEPU it is our assertion that they too equally have made threats in the same terms, terms of industrial disputation if a project agreement is not met by Built Environs.

PN117

Now we have decided that for the purposes of having the paperwork absolutely correct, and orders absolutely correct in terms of the parties being involved, etcetera, that we run the risk of perhaps having to come back here at a future date and pick up any subsequent other unions that are continuing and that may be continuing to threaten and indeed cause industrial action. So it is really just a matter of making sure that we are not - we don't fail, if you like on the basis that there could be some identification of parties that weren't involved on Monday, etcetera, etcetera. That is the reason for it.

PN118

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN119

MR GRANTHAM: I hope I have been reasonably clear with that.

PN120

THE SENIOR DEPUTY PRESIDENT: Well, thank you. Well, one last question, Mr Grantham, at this stage any rate, that is you filed two applications?

PN121

MR GRANTHAM: Yes, sir.

PN122

THE SENIOR DEPUTY PRESIDENT: My understanding you have primarily addressed the issue of the section 127A order that you are seeking from the Commission and there has been very little said so far on the issue of the section 166A application.

PN123

MR GRANTHAM: Yes, sir, I - - -

PN124

THE SENIOR DEPUTY PRESIDENT: Are you proposing that that be considered by the Commission at this stage?

PN125

MR GRANTHAM: Yes, sir, I was going to - I was thinking that if I addressed the if you like the 127 and I was your hands of whether at that stage you wanted to hear from the unions and then come back. I intended to talk with regards to the 166A certificate.

PN126

THE SENIOR DEPUTY PRESIDENT: Well, perhaps it might be better to do as you suggested then and we will deal with the 127A application first of all. We will give you a chance to talk to the second one a little later.

PN127

MR GRANTHAM: Yes.

PN128

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr O'Mally, or Mr Deakin?

PN129

MR O'MALLEY: Yes, if it pleases the Commission. I am at a loss about the 127. I have no notification of any 127 activity. I have notification of a 166A so I am a bit lost here that we have been talking about something that I'm not even aware of. I suppose what I would just put to the Commissioner that unfortunately Mr Carslake has had to leave the meeting - the Commissioner. He has a prior Commission hearing with Commissioner Lesses over another issue. Also unfortunately I can't contact my industrial officer who would in fact be here attending this Commission hearing. I would seek an adjournment until such time as I can grab hold of my industrial officer. These are very serious issues, there is allegations of coercion of people, coercion by my union against companies.

PN130

We have in train a - certainly - protect - serve protective action notices on some of these companies we are talking about including Built Environs. There is a question mark as to whether our understanding of their agreement quite frankly we have never - we aren't party to any engineering agreement. There is an issue quite candidly as to whether if the question is whether the construction agreement can cover that site as opposed to this engineering agreement and maybe we wouldn't be sitting here. So there is a lot more to this and quite frankly I would seek an adjournment so that I could get my industrial officer here so that I can get some advice.

PN131

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Deakin?

PN132

MR DEAKIN: Sir, if you are thinking about calling an adjournment, sir, then before I present any of our evidence I would seek what you intend to do rather than start presenting it today and then we call an adjournment.

PN133

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, Mr O'Mally's put a question to me about an adjournment. To be perfectly frank I hadn't thought of an adjournment until he had suggested so I am certainly interested in your response to the - both the information provided to me by Mr Grantham but also I guess in relation to the request from Mr O'Mally. Are you in a position where you can respond to Mr Grantham's concerns?

PN134

MR DEAKIN: I can respond to a lot of it sir. There is outstanding issues. I will just go through. I mean, the statement has been made here about to avoid confusion. Well, I am confused because I thought I was at some of these meetings and some of the things that were said have either been - certain statements have been left out or something has been included. Now, we have made it quite clear in all our meetings that we have gone through, there is more than one issue here. At the meetings I think the unions have been - there has been an attempt her to entrap the unions, especially me on some of the issues.

PN135

There is four issues that has always been stated, there is this one, an occ health and safety issue elected of workers out there as under the Act, appropriately under the Act on safety. The reason being that is because in the last project that was down there there was the attitude by Built Environs and ACI Glass towards safety has been, well, I would say, questionable. I say that is because we had a Department of Labour inspector go down there and was actually refused entry and after a heated debate he was allowed in. Then from there he was quite firmly told and Mr Lean is sitting behind me is fully aware of this, is that he was told in a nice way: hey, we are taking on notice we have got our own safety officer on site, who is an ex DLI inspector.

PN136

The other thing was - is that the unions have been putting in front of Built Environs a request for a site allowance. That was never the issue. What has been put in front of Built Environs was a project agreement, not just a site allowance and there is a difference on that, sir, because I will come back to it. It was at one of the meetings that we sat down debating this and we asked Built Environs, did they intend to sit down with the unions and negotiate project agreement.

PN137

First, you have said, no, but before we got up to leave Mr Allen, Matt Allen who is sitting along side me here, said well: where is your agreement, let us see it. So we said, well, do you want an agreement? He said: yes, well, let us see what you are asking. So we went away sir, I did serve upon Built Environs, and we identified Built Environs AD5 and that is your A3, agreement. Now, if he hadn't requested it he wouldn't have got one. But he request to receive to see a copy of what the unions are asking.

PN138

The other matters was the CFMEU was on the sites looking at the companies, names of the companies to see if they had EBAs in place. The fourth part is that in all the meeting, even with Mr Grantham sitting there, has never said to you that I notified them that we, the CEPU Electrical Division, has an EBA with Nielsens which quite firmly states that over certain project they have got to sit down with us and negotiate a site allowance. Now, that is in our EBA, sir. I would like to, I think I might as well just present this up to the - to you sir.

PN139

THE SENIOR DEPUTY PRESIDENT: I am in your hands, Mr Deakin.

PN140

MR DEAKIN: All right, sir, I will present the copies of the agreement, sir.

EXHIBIT #R1 COPY OF ENTERPRISE BARGAINING AGREEMENT

PN141

MR DEAKIN: If you go to page 40 of the agreement.

PN142

THE SENIOR DEPUTY PRESIDENT: I don't have it yet, so if you are patient with me. Mr Deakin, before you do take me to page 40 or 41, whichever it was you said, I am sorry, before you do take me to that page - - -

PN143

MR DEAKIN: Sir.

PN144

THE SENIOR DEPUTY PRESIDENT: This is headed Nielsen Electric Contracting Division.

PN145

MR DEAKIN: That is right, sir.

PN146

THE SENIOR DEPUTY PRESIDENT: I am a little confused.

PN147

MR DEAKIN: Pardon?

PN148

THE SENIOR DEPUTY PRESIDENT: I am a little confused, the notifier of this particular action is Built Environs.

PN149

MR DEAKIN: Yes, sir.

PN150

THE SENIOR DEPUTY PRESIDENT: Can you just help me or assist me by telling me how this agreement relates to the section 127 application that has been brought by Built Environs.

PN151

MR DEAKIN: Well, sir - - -

PN152

THE SENIOR DEPUTY PRESIDENT: I am not saying it does not I just need assistance in terms of how I understand it.

PN153

MR DEAKIN: Well, sir, it is the other issue that this union while we have been on that site talking about the site allowance for our people, for our people, electricians who are working for Nielsen's Electrical. On that the unions in whole approached Built Environs for a project agreement. But we also reminded Built Environs at the same time, well, whether you are going to go down the track with us on a project agreement or not, under the Nielsen Agreement, who are employed on that site, who have got a contract on that site, Nielsen's have got to sit down the union anyhow and negotiate the site allowance.

PN154

So either we sit down and have a project in place, a project agreement in place, or Nielsen's have got to sit down the union and negotiate a site allowance anyhow separately. That is why the Nielsen agreement is in place. I made it quite clear to Built Environs and the other representatives is that don't forget we still have in place an agreement with Neilsen who have got to sit down with us anyhow and negotiate a site allowance. Now - - -

PN155

THE SENIOR DEPUTY PRESIDENT: I am sorry, I cut you short then. You have answered my question in that regard. Which page did you want me to look at?

PN156

MR DEAKIN: Page 40.

PN157

THE SENIOR DEPUTY PRESIDENT: What particular part of page 40?

PN158

MR DEAKIN: 13.2, the scale for site allowances, project - and it goes on:

PN159

The following scale shall apply to all projects commencing on or after the commencement of this agreement.

PN160

What it is it is the old building trades federation agreement on site allowances and we have put it into our documentation. The reason I am raising this one right now is that the misinformation that had been put in front of the Commissioner today has also been put in front of this union over the site allowances. So - - -

PN161

THE SENIOR DEPUTY PRESIDENT: You are aware, I presume, Mr Deakin, of the position that has been taken by the Australian Industrial Relations Commission in relation to site allowances.

PN162

MR DEAKIN: Yes, sir.

PN163

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN164

MR DEAKIN: But we put in our EBA anyhow, sir.

PN165

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN166

MR DEAKIN: So this is why we put it in here is the project allowances for disabilities and it is identified down there. So at these meetings we made it quite clear to Built Environs, and Mr Allen, that anyhow whether they want to sit down with the unions and do a building trades federation agreement and do agreement with us or not then we will be going out and talking to Neilsens anyhow over our EBA because there was certain points in the EBA that were still debatable..

PN167

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN168

MR DEAKIN: So that was the one point. That has been - that was never mentioned to you. It has never been mentioned to you about the approach that the unions have taken, the restraint that the unions have taken on this matter as far as, well, as far as we are concerned on this installation agreement, the electrical contracting industry agreement, and the fact that where we spoke about the occupation health and safety. I can honestly say to you we have under great criticisms from our members on those projects is that unions do not seem to be getting too involved on occ health and safety and that is why the unions have been called down there on occupational health and safety. Especially with the heat and the noise and the dust, the glass dust that is in the air.

PN169

So for them to say to us that the union has been bloody minded on this is totally incorrect. In fact I will show you the - I have got another presentation here sir, I would like to show but it is to do with our site allowance on the ACI Glass. What I am trying to do is identify there is more that one issue sitting right in front of you, sir. One, no matter what this order comes out that the unions, especially the CEPU Electrical Division, has the rights under the EBA to still take action on that site for our allowances under the EBA but I am just showing the restraint that we have shown on this project up to now.

EXHIBIT #R2 LETTER DATED 26/04/2001

PN170

MR DEAKIN: Sir, it goes on:

PN171

Dear Greg -

PN172

This is Greg Hogby, construction manager, contracting division, Nielsen Electrical Pty Limited, 100 Regency Road, Ferryden Park, SA 5009, and it is dated 26 April 2001:

PN173

Re: The ACI Glass Site Allowance. Dear Greg, it has now been one month since I spoke to you concerning the above said matter. I also followed up those discussions with a letter on 26 March ...(reads)... from the date they first went to the ACI Glass -

PN174

That should have been "site fee" on that, sir:

PN175

The site allowance will change upward once the Building Trade Federation negotiate a new rate with the ACI ...(reads)... or whatever is negotiated between your company and the CEPU Electrical Division.

PN176

So while referring to there, there was no agreement between Built Environs and the unions, then we still come back as a union under the EBA for a site allowance:

PN177

If the builders agree to a site allowance and it is retrospective ...(reads)... back-paid the difference to reflect the new rate.

PN178

Sir, I got a response to that letter from Nielsens I would like to serve up.

PN179

THE SENIOR DEPUTY PRESIDENT: Before you do that, Mr Deakin, or as you are doing that perhaps, can you just help me a little with this letter. At the outset I have got to indicate again that I understand that you are giving it to me in the context of your entries, as I understand it, to the site which, if I am following this train of thought correctly, you are saying it being focussed perhaps more at Nielsen Electrical as a contractor.

PN180

MR DEAKIN: Well, that had been the case, sir. I mean, look, like I have said to you, the issue put before you today had been confused. There has been four issues. One that we went down the track of a project agreement at the request of Mr Allen asking - especially us - to present him with a document.

PN181

THE SENIOR DEPUTY PRESIDENT: Okay, then - - -

PN182

MR DEAKIN: Now, he has used that document against us to say that we are out here bashing heads.

PN183

THE SENIOR DEPUTY PRESIDENT: Well, except that - can I take you to the third paragraph in that - sorry, the fourth paragraph in that letter.

PN184

MR DEAKIN: Yes, yes.

PN185

THE SENIOR DEPUTY PRESIDENT: The paragraph that reads:

PN186

The site allowance will change upwards once the Building Trades Federation negotiates a new rate with ACI representatives, Built Environs.

PN187

MR DEAKIN: Yes.

PN188

THE SENIOR DEPUTY PRESIDENT: Yes:

PN189

The new rate will only apply from the conclusion of those negotiations, or whatever is negotiated between your company and the CEPU Electrical Division.

PN190

MR DEAKIN: Yes, yes.

PN191

THE SENIOR DEPUTY PRESIDENT: Now, that tells me, if I'm reading it correctly, that the Building Trades Federation are endeavouring to negotiate a site allowance with Built Environs.

PN192

MR DEAKIN: That is right, sir.

PN193

THE SENIOR DEPUTY PRESIDENT: Can you confirm that?

PN194

MR DEAKIN: Well, a site allowance. Yes, we confirm that because they requested a document.

PN195

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN196

MR DEAKIN: They requested this agreement, sir, this one was by Mr Allen.

PN197

THE SENIOR DEPUTY PRESIDENT: All right, so the discussions that you had on-site with Built Environs - - -

PN198

MR DEAKIN: Yes, yes - - -

PN199

THE SENIOR DEPUTY PRESIDENT: - - - were focussed, amongst other things, as you were indicating to me in relation to safety, on this question of whether or not a site allowance which you are saying would be part of an overall site agreement - - -

PN200

MR DEAKIN: Yes.

PN201

THE SENIOR DEPUTY PRESIDENT: - - - to apply to Built Environs - - -

PN202

MR DEAKIN: Yes.

PN203

THE SENIOR DEPUTY PRESIDENT: And then presumably, following the theme outlined in this latter, R2, would apply to companies, or contractors such as Nielsen Electrical.

PN204

MR DEAKIN: Yes. What I am saying now, sir, look, is if Built Environs does want to sit down with the unions and negotiate an agreement - and they have already asked for the document - then what we saying is, we are asking for $3.30. If that is the case, then, our site allowance - our discussions under the Nielsen document will be absorbed under that site allowance, so we are not asking for double-dipping in any way.

PN205

THE SENIOR DEPUTY PRESIDENT: No, but what you are saying there is that if you receive the $3.50, or whatever it is that you were asking for in terms of that other site allowance - - -

PN206

MR DEAKIN: Yes.

PN207

THE SENIOR DEPUTY PRESIDENT: - - - then the $1.90 that you claim from Nielsen Electrical would be absorbed into that larger amount?

PN208

MR DEAKIN: That is right, that is right.

PN209

THE SENIOR DEPUTY PRESIDENT: I understand the argument, yes.

PN210

MR DEAKIN: Yes. See, unless they asked for that document we wouldn't have got a document. I mean, what we are saying is, if they were prepared to sit down and negotiate an agreement with us then it would be a proper project agreement, not a site allowance as the issue, but a proper project agreement. On request of Mr Allen that: yes, show the document, we went away and drew up a document for him specifically so that we could - and I promised that I would have it to him by 4 o'clock on the Tuesday - the following Tuesday - and that is what he did. Now, what I am saying is there is four issues, or probably even more and all being collated into one, and it is hard for us now to separate each one from that.

PN211

THE SENIOR DEPUTY PRESIDENT: This is your opportunity. You have my undivided attention, Mr Deakin. I am altogether listening.

PN212

MR DEAKIN: Okay, sir, well, I will show you - okay. Sir, I will just show you - I am just going to try and prove to you the misinformation that keeps getting put out to the unions on all of this. The reasons we have been asking for, say, $3 an hour on that project and Mr Allen -sorry, Mr Grantham referred to Mr Newble - was saying that: Mr Deakin was continually asking him: what is the project value on the site? And he said: I don't know. Well, I will tell you why I am asking that, sir, because our EBA quite clearly says: anything over 114 million, they have got to sit down and negotiate with us. When I first went to that project - - -

PN213

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Deakin, where is it specified that anything over $114 million requires a negotiated site allowance? Can you just assist me?

PN214

MR DEAKIN: In this document?

PN215

THE SENIOR DEPUTY PRESIDENT: In this Nielsen document.

PN216

MR DEAKIN: Yes.

PN217

THE SENIOR DEPUTY PRESIDENT: Is it specified anywhere in an agreement with Built Environs?

PN218

MR DEAKIN: No, sir.

PN219

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN220

MR DEAKIN: But the reason I am asking that, sir, is like I say, I am trying very hard to separate the dispute that we have with - that has been brought against us right now with Built Environs to what our position is with Nielsens. We have said to them quite clearly: are you prepared to sit down and negotiate a document? Built Environs: show the document. So we have gone away and given them a document. We have come back. They have said to us: not interested. So we said to - at the same time - prior to this we were out there talking with Nielsens over the site allowance for that project, and they were saying: we don't know what the value is, so we can't give you through our EBA the correct amount of site allowance. So we were saying: well, you should not have - they should not - so one day I went down to the site and I spoke to Mr Allen and I said: what is the project value on this, I hear it is $136 million? Mr Allen's response was: no, it is 134 - 134 million.

PN221

Right, so I now present to you - so what I am saying is that the CEPU have two positions. One, is that we are prepared to sit with Built Environs and negotiate a project agreement. If they don't want to do that, then, we still have an avenue available to us under our EBA to sit down and get a site allowance. Now, the information being given out by Built Environs has been, to say the least, very vague. I have handed out this - - -

PN222

THE SENIOR DEPUTY PRESIDENT: You have handed up R2, which is a correspondence from yourself to Nielsen Electrical.

PN223

MR DEAKIN: Have you got the letter from Nielsens Electrical?

PN224

THE SENIOR DEPUTY PRESIDENT: Right, I now have R3, which is a response from Mr Hogby to yourself.

PN225

MR DEAKIN: Okay. So the reason we have had meetings with our people down there was on this response. The letter I received from Nielsens was:

PN226

Further to our meeting yesterday and our subsequent correspondence dated 26 April 2001, we respond as follows. As advised the Nielsens Enterprise ...(reads)... please do not hesitate to contact the undersigned.

PN227

Now, from ACI Glass to Built Environs they say the project value is $57 million. We had previous where Mr Allen has said it is $134 million. We have had ACI Glass put out a brochure - a brochure saying: it is $140 million. Our people are getting real angry about this because they are saying: this project has in the past - it is well over the 100 million, and I see the submission A2 that has been put up to the Commission - - -

PN228

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, I have got to interrupt again.

PN229

MR DEAKIN: Yes.

PN230

THE SENIOR DEPUTY PRESIDENT: You are aware of the position that has been adopted by this Commission over the last few years in relation to site allowances and the determination of them.

PN231

MR DEAKIN: Sir.

PN232

THE SENIOR DEPUTY PRESIDENT: Thank you. Right.

PN233

MR DEAKIN: Okay. But as I say to you, it is the agreed position in our agreement is that the AD5 project is 68 million - - -

PN234

THE SENIOR DEPUTY PRESIDENT: Well, in your agreement with Nielsen Electrical?

PN235

MR DEAKIN: That is right, that is right.

PN236

THE SENIOR DEPUTY PRESIDENT: Yes.

PN237

MR DEAKIN: And I am still referring to - see, the information going to Nielsens is incorrect, to knock down the site allowance in our EBA. I'm not asking Built Environs. I'm coming back to our company. We have got it here and it has been on transcript and it is on recommendation from Commissioner Lesses, where they quoted the project value was $68 million, and the $68 million under our contract would be $1.90 site allowance. The letter you received there says it is $57 million. Now we have got four prices of the one same project. So this is causing us a lot of problems with our members out there on that project because we have still got a position to take to Nielsens to get them the appropriate site allowance.

PN238

Now, under our documentation it says: anything over $67 million, we are entitled to $1.90. They send us a letter saying: they have received from Built Environs is $57½ million. Then I see on transcript here - recommendation sorry - the recommendations of Commissioner Lesses - that the project was $68 million and that should be $1.90. So if anybody was asking for orders, sir, I would be seeking orders from you to get ACI Glass, or Built Environs to provide this union with the copy of the brochure which actually stated the total value of the project so that we can sit down with Nielsens to sort out our correct rate of pay under our agreement. So all these matters have been lumped into one. We have an outstanding issue with Nielsens on that - - -

PN239

THE SENIOR DEPUTY PRESIDENT: Nielsens are not - I have got to keep repeating: Nielsens are not a party to this application.

PN240

MR DEAKIN: I know, sir, but I'm trying to explain to you the problems being - - -

PN241

THE SENIOR DEPUTY PRESIDENT: I understand that you might have an argument with them and that might relate to information pertaining to that which they require from Built Environs - - -

PN242

MR DEAKIN: That is right. So on the day we were there, sir, we were talking with my members prior to the occupational health and safety meeting - and that is what it was - we were discussing the EBA with my members in their lunch room about the EBA rates that had been provided by Nielsens, where it was suggested that there was a brochure put out to the $140 million. We have said, quite clearly, we have given Nielsens a long time to get this matter sorted out. It was then suggested that we go with the other unions and have an occupational health and safety representative meeting of all people there concerning occupational health and safety. That has not been stated. The discussion I had with Cladding and Roofing was on those same sorts of issues, was occupational health and safety, was that somebody asked a question on EBAs. I told them what our EBA rates were under our agreement and that is what it is and that some discussions went to the point where we - I made mention that we had actually served up to Built Environs a project agreement which they rejected, however, there is a meeting up there right now over occupational health and safety.

PN243

So what has been stated by Mr Grantham, I am going to say to you, sir, paints a really black picture of the unions and I can say to you, you see our letters that we put to Nielsens, that we have not taken industrial action on that, we have only just that one time walked off, I believe. I can't think of any time that we have walked off that job other than on the occupational health and safety issue. I think, because Mr Carslake is back here now, he can back me up on what I have just been saying about the occupational health and safety because we do have some major problems on that site, as far as - well, it is just lip service being provided with the occupational health and safety.

PN244

But I would like to point out to the Commission, I just don't want orders placed on this union not to take industrial action on that site because of our EBA. I will be saying under our EBA, and it is quite clear in our dispute settlement procedure, we have said in the last paragraph is that when we sat down with the employers we told them quite clearly we would not agree to any no strike action clause going in the agreement but we were prepared to go through all the procedures prior to that and it was agreed that the action may be taken to the Industrial Commission.

PN245

We reserved our rights in many issues, but we have done that, we have stood by that agreement 100 per cent. Now, if the request for an order laid against us on that site is that we can't take any action because of our - that will impact on our EBA and our rights to protect our EBA, what do we have to do then? Do we have to pull out every Nielsen member, 120 of them, off all the other projects because of this one? It is nonsense, sir. You would be the first one that would be ramming it down my neck, you have got to localise your problem, if you have got a problem it is localised.

PN246

That is what we have tried to do and we have sat down and negotiated. We have spoken to Nielsens on this. Nielsens have said to us: as far as we are concerned that is the price. We know it is not the price. I have had to go back on a number of occasions and explain to our guys why we have not taken industrial action and why we are showing restraint is because the information that has been coming out of Built Environs or ACI Glass is incorrect and until that matter is resolved I can't sit down and finalise our document on that site for the site allowance as per our agreement.

PN247

We have said to Built Environs, when they said: no, they don't want it, and I made it quite clear to Matt Allen and Mr Grantham: don't you forget, I've still got a site allowance on this project, don't forget about that, that's part of our EBA and that is still to be negotiated, if you are not interested then I am going to go back to my document. That has always been the case. I made it quite clear to them, we have never, ever forced anything down their neck. In fact, people get - my members get a bit impatient with me because I am prepared to sit down and negotiate.

PN248

So that is where I am up to right now and I made it quite clear to Mr Newble when he came around with us, I was quite - he himself would say to you, sir, that our position walking around together wasn't any animosity whatsoever. It was a case of trying to get these people to an occupational health and safety meeting. They said: well, they are not really interested. I said: well, at the end of the day, mate, that is your position and, hey, that is it, that is cool. So as far as we are concerned, I don't think any order should be laid against us at all because we have done the right thing and attempted to do the right thing.

PN249

I raise one other issue. You have got to ask the question, sir, as why the unions have not been allowed to be inducted onto that site, go through an induction course? Now, we are having out here on construction site the green card that everybody has got to be inducted. The first thing that we have done is gone through the BCITC to go through the induction course. Mr O'Malley has been through one, I have been through the building industry one already, so has Mr Lean. On that site they are using it as a method to keep the unions off, to saying: we are not going to induct you, right.

PN250

So that is affecting our right of entry, no matter if we give them the 24 hours notice that we want to come on site and we are prepared to walk around with them, prepared to do the right things, as per the Act, they have deliberately used that induction as a means and method to try and keep the unions off that site. So, sir, going to - in finishing, what I would like to say right now is that we have shown great restraint on that project and we would like to see orders laid on Built Environs that they allow for all unions to be inducted so they can go around there and inspect a site for safety because I can say to you right now, sitting in this room, that they wouldn't understand - the DLI inspectors don't even understand, and neither do their own inspectors understand, the electrical requirements under the AS3000.

PN251

In fact, Mr Nigel Lean and myself are on the Worksafe 2000 Board and we have just finished going through what is called temporary wiring on construction sites, the regulations. We print them into like a code of practice, ..... and I can say to you, sir, that they wouldn't have a clue. What they are trying to do is to keep the unions out by not allowing them to be inducted in and using that as a weapon to keep the unions off site. If those issues could be resolved it would go a long way to solving the problems that the people to my right are referring to.

PN252

It is a two way street here. I mean, we are prepared to do the right thing by them if they are prepared to do the right thing by us. They rejected the construction agreement. I have still got to go back to my EBA and do it but I still want to be inducted on the site and we still want the occupational health and safety representatives there, sir. So there is more than one issue and for them to say there they want orders against us, I would say to you, sir, is quite wrong because there has been no attempt by these people before coming here today to sit down with us to try and resolve the matter.

PN253

This is the first bit of notice that we have had since those guys walked off and when you are talking, what - what are we talking about, an hour, an hour and a half, maximum, that these people walked off? There has been no attempt, no attempt whatsoever, to sit down with the unions to try and resolve things. They come straight here to you. I got this afternoon a notification for 127, we did get it, I think, did we? 166. Where is the negotiations in that? Where is the conciliatory part of that, sir, for them to come up here straight away, bang, without any sitting down and talking with us?

PN254

We have made ourselves available on a number of occasions to sit and talk with them. What do we get? We get misrepresentation, as we did last time we were here in front of Commissioner McCutcheon last year, we are getting it again this year. I leave it at that for the time being, sir.

PN255

THE SENIOR DEPUTY PRESIDENT: Mr Deakin, before you do sit down - - -

PN256

MR DEAKIN: Sir.

PN257

THE SENIOR DEPUTY PRESIDENT: - - - can you help me? Just as I had a couple of questions for Mr Grantham I have also got some for you. Has your union got members who are employed by Built Environs on the site?

PN258

MR DEAKIN: No, sir.

PN259

THE SENIOR DEPUTY PRESIDENT: You have no members employed on the site?

PN260

MR DEAKIN: No.

PN261

THE SENIOR DEPUTY PRESIDENT: Now, you mentioned you didn't receive the section 127A documentation.

PN262

MR DEAKIN: Yes.

PN263

THE SENIOR DEPUTY PRESIDENT: Mr Grantham, do you have any spare copies of that with you?

PN264

MR GRANTHAM: Yes, sir, what I have got here, sir, are copies of facsimile transmissions - - -

PN265

THE SENIOR DEPUTY PRESIDENT: No, I am not so much questioning you may or may not have sent them through but do you have a spare copy of the section 127 application?

PN266

MR GRANTHAM: Yes, and there - - -

PN267

THE SENIOR DEPUTY PRESIDENT: Could I ask that you provide it to Mr Deakin?

PN268

MR GRANTHAM: I will do so, sir. I was actually going to tender through to you because Mr O'Malley suggested that he didn't receive them. What I have got here is a copy of the fax header that was sent to Mr O'Malley, one sent to Mr Geraghty. I have got further attached to that a facsimile transmission report to demonstrate the timing and confirmation this facsimile went through and with that is the written notice of intention to bring action in tort under section 127 application. I would like it entered into though as an exhibit.

EXHIBIT #A7 BUNDLE OF DOCUMENTS

PN269

MR GRANTHAM: Thank you. With that, the gentlemen will find a copy of the 127 application and the fax transmission report indicates that it was faxed through to the CFMEU yesterday at 9 minutes past 2 and it was then faxed through to the CEPU Electrical Division at 10 past 2. I might add, then it was lodged in the Commission yesterday at approximately 2.50 pm.

PN270

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN271

MR GRANTHAM: So the unions actually received a copy of the - were faxed a copy of it before being lodged.

PN272

MR O'MALLEY: Just for a matter of clarification, if it pleases the Commission, I have actually got a copy of this particular document, but maybe it is my ignorance, but I don't see any reference to a 127, I see 166. I am just a bit confused as to where we are going with it.

PN273

MR GRANTHAM: Form R9, Martin.

PN274

THE SENIOR DEPUTY PRESIDENT: I think what Mr Grantham is pointing out to you, Mr O'Malley, is that Form R9 is a form derived from section 127A.

PN275

MR O'MALLEY: I would like to apologise to the Commission, I have actually received it.

PN276

THE SENIOR DEPUTY PRESIDENT: Well, that, in part, answers my concern. Mr Deakin, can I refer you to that Form R9, have you got it in front of you? Can I invite you to take a moment to read it. I am particularly interested that you read the three paragraphs of the order that has been sought by Built Environs - and I will pause for a moment so you can read it. There is no rush. You have read it?

PN277

MR DEAKIN: I have read it, sir, yes.

PN278

THE SENIOR DEPUTY PRESIDENT: Given, Mr Deakin, that, as I understand your position, the CEPU does not have members engaged by - - -

PN279

MR DEAKIN: Built Environs, yes.

PN280

THE SENIOR DEPUTY PRESIDENT: - - - Built Environs, and given that, as I understand, you said CEPU do not have a dispute with Built Environs - - -

PN281

MR DEAKIN: Not now we don't.

PN282

THE SENIOR DEPUTY PRESIDENT: - - - then do you see any problem, or do you have any concerns, in the event that the Commission was to grant that order if - - -

PN283

MR DEAKIN: Because it might - - -

PN284

THE SENIOR DEPUTY PRESIDENT: If I can just complete my question to you. If I were to say that, in addition to the order that is sought there, there would be a period of time in which I would ask that Built Environs and your union have some discussions about occupational health and safety management on the site, because I understand you have raised a series of questions relevant to occupational health and safety issues and that you do have - - -

PN285

MR DEAKIN: That is not only our - - -

PN286

THE SENIOR DEPUTY PRESIDENT: - - - some concerns about Built Environs management of those issues - and I need to make it clear I can make no comment on those, both because they are not within the encompass of the application that is brought before me but also so because I know very little about them in this context, but it seems to me that the application insofar as it relates to your union would probably have very little import if I am understanding correctly the things that you are saying to me.

PN287

MR DEAKIN: It would have?

PN288

THE SENIOR DEPUTY PRESIDENT: It would have very little impact on your union.

PN289

MR DEAKIN: No, sir but the thing is I don't be seen - we don't want to be seen to be disregarding your orders or anybody using it against us when we are having discussions with Neilsens over our site allowance as per our agreement. That might happen in that situation. To avoid that sir, ..... nothing it is putting us in a predicament, a hard position, is because if we say we want to localise the problem and it is with ACI, on that ACI project, because the site allowance is not being paid on that, if we try to pull everybody off all the sites within Neilsens over that one issue Neilsens would be in here, running in here and saying Mr Deakin is in fact in other buildings sites has got nothing to do with this problem. So we do have a problem with - by complying with your orders if this is what is going to happen it is going to effect our ability under our agreement to do what we believe is correct.

PN290

THE SENIOR DEPUTY PRESIDENT: I understand your position. Thank you.

PN291

MR DEAKIN: There is another thing I would like to ask sir, if that is the case and we are talking about occupational health and safety, I would like you to order that Built Environs allow the union officials to be inducted so they can go around and inspect those sites with safety as well.

PN292

THE SENIOR DEPUTY PRESIDENT: Thank you, I understand your concern.

PN293

MR DEAKIN: Thank you.

PN294

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr O'Malley and Mr Carslake, I noted Mr Carslake has been released from his other engagement with another member of the Commission. Are you now in a position to respond to the questions raise by Mr Grantham?

PN295

MR O'MALLEY: No. We are not in a position unless I get my industrial officer involved, unless you order such.

PN296

THE SENIOR DEPUTY PRESIDENT: Well, I do - I am stopping short of an order but I guess I am concerned, I am wondering whether you might either you or a combination of yourself and Mr Carslake might be able to answer a couple of very simple questions.

PN297

MR O'MALLEY: Certainly.

PN298

THE SENIOR DEPUTY PRESIDENT: They fundamentally reflect the questions that I put to Mr Deakin. Do you know whether your union has members who are engaged by Built Environs on this site?

PN299

MR O'MALLEY: Yes, we do.

PN300

THE SENIOR DEPUTY PRESIDENT: You do. Were you aware of the agreement, the certified agreement that was provided to the Commission by Mr Grantham relating to Built Environs?

PN301

MR O'MALLEY: No, I wasn't. I am aware that we have an agreement with Built Environs which covers construction work. I was informed that there was a - what was called a civil agreement of which we aren't party to. I believe that there was a - and this particular one which I see is an engineering project one and what we attempted to do was to serve Built Environs and I believe another eight companies, a notice of - sorry - bargaining notice, a bargaining notice period time so that specifically for engineering sites. They were with other companies, sir, we do actually have construction site agreement with.

PN302

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Grantham, have you got any further comment to make in this matter?

PN303

MR O'MALLEY: Yes, some issues that particularly Mr Deakin raised. Mr Deakin quite transparently is correct in that I in my submissions today did not make any reference to Neilsens. The reason for that was primarily to try and keep the issues concise but I acknowledge that on a number of occasions that Mr Deakin has referenced the Neilsen's agreement. Neilsens have been performing some works down at the ACI project as I understand it is a very minor, predominantly supply of electrical services or installation of temporary supply to obviously the multitude of huts etcetera, etcetera.

PN304

Our position has simply been this that Mr Deakin has been a party to the union's approaches for a project agreement. Now, I don't think we need to get bogged down to whether it is a site allowance or a project agreement because on one occasion there may have mention of a site allowance. On other occasions it is a project agreement and on other occasions both are mentioned. As far as Neilsen's have been concerned I have said in meetings where Mr Deakin has raised: oh, well, I have got an agreement with Neilsens. All I've said is well, that is Neilsen's concern Wilf, go away and talk about that to Neilsen. The point is we are saying no to a project agreement on instruction. If you have got an agreement with a contractor they provide you to sit down and negotiate a site allowance for this site, that is that contractors look out. That is their business not ours.

PN305

I mean, as I understand it, quite simply, Neilsens have been Wilf Deakin's fall back. They like the other union officials have come to Built Environs consistently seeking a project agreement that delivers outcomes similar to the Pelican Point agreement, without wanting to isolate the claim because there are other issues contained that emanate from waning an agreement in terms of Pelican Point but just isolate one issue and that is a site allowance is somewhere in the vicinity of $3.30 or $3.50 - it is $3.30 in the document, $3.50 has been verbally advised.

PN306

Now, I want to talk about what Mr Deakin was referring to as the confusion that has been generated and blamed upon Built Environs with regards to the project value. There is no confusion. Firstly, there was a reference, I am not going in necessarily any order of which Mr Deakin referenced it but he did, he referenced one amount of $64 million - $68 million, that was referenced in the recommendation of Commissioner Lesses. That clearly is in relation to the AD5 project that has now come and gone. It is completed.

PN307

That was what I was talking about earlier about the unfortunate confusion Commissioner Lesses found himself in confusing the AD5 project that was concluded last year and the current project which is AD6. So there has been no suggestion $68 million for AD6. Further, it is my instructions that the letter from Neilsens to Wilf Deakin in reply to his letter of 26 April, in their letter on the 9th, they mention a value, I quote:

PN308

This is in line with our advice that the total construction value of this project will be in the order $57½ million.

PN309

Now, I am advised that that figure was communicated to Neilsens by Built Environs on the basis that that is the project value minus procurement, you are left with $57½ million. My understanding for this is that site - a site allowance formula as contained in the Neilsen's agreement has its genesis in commercial building. It is often referred to as the MBA formula and applies to commercial building activity. So what was attempted by Neilsen's as I understand it is to compare apples with apples.

PN310

If you want to - if you are looking at a formula that is the same as say a CBA or a commercial building formula, if you want to compare applies with apples, engineering with building construction you have got to take out the procurement value of the engineering project so you are comparing apples with apples. That is what I understand was the intention and Neilsen's there are further advised, or further advised by Mr Allen that he was led to believe that Neilsen's had clearly communicated to Wilf Deakin that the $57½ million they refer to there is the resultant sum after the procurement value of AD6 is taken out.

PN311

Now we are hearing, sir, and gee, I wonder why I am not surprised, I might have heard this before, that the meeting of 28th of the 5th was really about OH&S concerns. It seems that we have got it entirely wrong but we know that is not true. It is quite transparent. The information that is liberally distributed does not make any reference to OH&S concerns. All it is about is a project agreement generous site allowances, etcetera, etcetera. This is how concerned roofing and cladding were, on two occasions I believe Mr Deakin approached them that day and they refused to stop work. I believe it wasn't because Mr Deakin was talking to them about OH&S issues and I wasn't there, I don't know but I suspect strongly it was about, it is all about come and join the crowd because we are going to stick it up them for a site allowance and/or a project agreement.

PN312

I also want to just briefly touch upon it was suggested that the company sought from the unions that agreement that Wilf dropped off at the security office. We had had a number of meetings with the various union parties and it is our clear understanding that it was under the auspices of the BTF that we were meeting the unions. Indeed the flier titled: Stop the Rot, was under the auspice, printed under the auspices of the Building Trades Federation, certainly titled that at the bottom. On numerous occasions they have been told not interested in a project agreement. We seek to have the agreement not only of Built Environs, but the agreements of all sub-contractors so the work that they are intended.

PN313

It was - I distinctly recall what Mr Deakin was referring to. Here we are, we are probably we had - there was a meeting on site, the union back in March, or the BTF through with Mr Carslake and Mr Smith on site, had gone back to the company after a meeting and said: we are going to draft up an agreement, put it to the employees, once they have approved it, we are going to hand it to you, you have got a week to consider it. A few weeks later, a few weeks later, and yet another meeting, wanting a project agreement, including a site allowance, Matthew Allen did say, well, where is this draft you were going to produce, I thought you were going to produce a draft.

PN314

Now, there is - I distinctly remember clearly saying after that, gentlemen, I want you to understand that our position is no agreement. So I don't think you should put any weight into the fact that Matthew Allen, it was at the conclusion of a meeting, said: well, you were going to produce an agreement, you didn't did you, or words to that effect. Wilf suggested: there has been no attempt to resolve this, they have come straight here, where is the negotiation? We have met - and I use the collective "we" - the company has met with the BTF on numerous occasions. Their position has been consistent, it has not wavered, it has not altered. Where is the negotiation? The answer is: there has been no negotiation. Built Environs have clearly indicated that they are not interested in negotiating a site agreement. What we have is fairly fundamental. We have got a history of site allowances with the commercial building area - yes, certainly, there have been site allowance on engineering projects.

PN315

There was a site allowance at Whyalla for the Concaster job, I recall that myself, GMH. Pelican Point Power Station, if you like, set a fairly high precedent here in t his State and the unions are keen to continue to see that flow everywhere, there is no doubt about that. They want enterprise bargaining to be in a frame work that is only when it suits them - to suit them. They are keen for agreements to be in place but by jove, if there looks like there is something better around the corner, they want you to ignore the agreement that you have, because they want you to enter into something bigger and better. What they have to accept is that law underpinning agreement is that you cannot take protected industrial action during the nominal life of an agreement. You cannot have your cake and eat it too.

PN316

Built Environs are exercising their rights under the Act: got agreement in place, we are going to keep it. We are not going into a project agreement - and secondly and importantly, because if you indeed the Commissioner Member that other applications come before you - this company, Built Environs, is saying and has steadfastly said: we are not about to pass down a project agreement, or pass on to contractors a project agreement in a contractually binding way. With regards to - and look I don't want to just nit-pick through every particular issue - there were some fairly serious allegations raised about the Department of Labour Inspectorates being refused entry. I want this Commission to just be aware that that is strenuously and vigorously denied.

PN317

We vigorously and strenuously deny that there is some litany of occupation, health and safety issues down on that site. For the record we want that statement made. This is just the standard reaction we want in an industrial claim, if we cannot get it, now we are going to belt you around with trumped up safety issues. That is the whole reason of wanting - and it leads me to address this issue about being inducted. It is not about whether they are being inducted in terms of their right of entry. The right of entry provisions are coming under the Act. What has been said to the union officials: if you are saying that you want to come in at any time, unannounced and have free unfettered access to the site, the company is saying: no.

PN318

MR DEAKIN: Never said that. Look at our statement.

PN319

MR GRANTHAM: There seems to be some suggestion here that by not being put through the induction process is the only factor that disallows them from having the unfettered access to the site. I mean, these unions want the ability to walk around a site, talk to any contractor they want at will, regardless of their rights under the law, that is what that is about. We just say in terms of that issue we are merely applying the Act and I am hesitating - I have decided I won't respond to the suggestion that there is all this expertise that should be recognised for AS 3000 and the like. So I want to take you to 166. I will be brief.

PN320

The point I want to emphasise with that notice - and I want to be absolutely open and frank here, because we understand the significance and the seriousness of a certificate pursuant to 166A. It is my understanding that under the Act pursuant to the rules that the - and can I say that this understanding has only been crystallised totally within hours of me standing here.

PN321

THE SENIOR DEPUTY PRESIDENT: We were probably reading the same things at the same time, Mr Grantham.

PN322

MR GRANTHAM: Possibly, sir. I was aware of some protocol that prior to bringing a notice to this Commission via the Registry, that it should be served on the parties to whom the notice related to. That was done in good faith by faxing the notice to the two unions offices. I have already - and that is evidenced in A7. That was done pretty well much en route to the Registry here yesterday afternoon, whereupon, I lodged personally the application pursuant to section 127 and the notice of intention to take action in tort.

PN323

I have since that time had it explained to me from the Registry that what is also required is a statement of service and so what we have done is we have caused today - prior to this matter commencing at 3 pm - we have caused an officer of our organisation to serve in person to both the CEPU Electrical Division and to the CFMEU, and a copy in the name of each - an individual copy in each individual's name as named in the section 127 in a notice of intention to take action in tort. So two copies were left at the CEPU Electrical Division and three at the CFMEU and that occurred, as I said, prior to this hearing and I am led to believe it occurred at or about between 1 and 1.30 this afternoon. I can advise the Commission that pursuant to the rules that what should have been done during our time here this afternoon is that an affidavit or statement of service has been lodged in the Registry.

PN324

THE SENIOR DEPUTY PRESIDENT: Mr Grantham, I wonder whether I might cut you short to the extent that I could pre-empt that I am not going to require you at this stage to proceed with the essence of the - or the reasons why your section 166A application should be adopted by the Commission and a certificate should be issued. I am going to as part of the outcome of these proceedings, provide you as the applicant, or the notifier in that regard, with an opportunity to come back to the Commission at very short notice to argue for that certificate to be issued and, at the same time, that opportunity would be extended to the relevant unions and individuals to respond to it. But in terms of progressing the matter I am taking the section 127A application as at this stage the more pressing application. Now, is that something that seems logical to you, given the issues relating to service of the 166 matter?

PN325

MR GRANTHAM: If I could just take a brief instruction.

PN326

THE SENIOR DEPUTY PRESIDENT: You may certainly do so.

PN327

MR GRANTHAM: I am instructed, sir, that the company does not have an argument with that approach by you. I am very mindful that we need to ensure at our end here that the correct procedure has been followed and adopted. We agree that the section 127 application is certainly pressing. We accept that we will take the opportunity to come back on short notice to address the section 166A certificate. I suppose - while I am standing on my feet I am thinking very carefully about whether it is - to put it bluntly sir - I would take advice from you, if we are going to deal with the section 127 as the more pressing issue, as to whether you have any concerns in terms of the procedures with the section 166A certificate, given that that is some time in the future, because if there is something that is ultimately going to be a trip for me in the future, I don't particularly want to learn about it too far into the future, whereas that time that is elapsed, could have been used to remedy some procedural technical defect. I trust I have finally got that out. If there is a defect with the procedure I don't want to learn about it in a week's time. I would rather learn about it sooner so that in that week any technical deficiencies can be addressed, and I emphasise the word "technical", because in good faith the parties were sent the notice of intention to take action in tort prior to that very same document being lodged in the Registry. We have since attempted to remedy if there is any procedural technicality.

PN328

THE SENIOR DEPUTY PRESIDENT: Mr Grantham, I do not hold myself out as being the expert on the issues of technical compliance, however, I will extend to you and make an equal offer to the unions involved, that I can make the good advice of the Registrar - that is someone distinct from the Deputy Registrar - the Registrar of the Commission - available to you tomorrow, and he can be contacted through my office because he will be in Adelaide, so that if you do have questions on the issue of technical compliance, then they might be referred to him through my office tomorrow - and I make a similar offer, obviously, to the unions.

PN329

MR GRANTHAM: Certainly, I appreciate that.

PN330

THE SENIOR DEPUTY PRESIDENT: So if you have any doubt about issues of service and giving effect to service then you can have those clarified tomorrow.

PN331

MR GRANTHAM: Yes, sir, and I suggest to - I submit to you that the reason for me being longwinded in getting that out to you was that I was thinking on my feet that here I am perhaps putting you in a situation that I should not expect to put you in in terms of relying - - -

PN332

THE SENIOR DEPUTY PRESIDENT: I will forgive you, Mr Grantham.

PN333

MR GRANTHAM: - - - upon: well, if the Commissioner said it is all right, it has got to be all right in the Federal Court, etcetera, etcetera. No, quite correctly, sir, and I accept that, thank you.

PN334

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr O'Malley, your request for an adjournment presents me with some little degree of difficulty insofar as I am obviously concerned that I give you every opportunity to obtain the right advice. Can you just assist me by answering one further question? Are you in a position to give me, or to give this Commission, an undertaking that there would be no industrial action whatsoever against Built Environs in relation to this particular site and the employees of Built Environs for a limited period of time?

PN335

MR O'MALLEY: Yes, certainly.

PN336

THE SENIOR DEPUTY PRESIDENT: In which case can I refer you too to the Form R9 and to the orders that have been sought by the company in that regard? Can I ask whether if those orders were qualified so that they applied for a limited period of time and if they were qualified to the extent that they applied to any employees of Built Environs who are working on the AD6 ACI site, would those orders occasion you any real difficulty?

PN337

MR O'MALLEY: There would be no problems in relation to Built Environs. There may be problems in relation to some other companies.

PN338

THE SENIOR DEPUTY PRESIDENT: This is a Built Environs application.

PN339

MR O'MALLEY: With respect, sir, the reference is to the site and not to - - -

PN340

THE SENIOR DEPUTY PRESIDENT: I understand that - - -

PN341

MR O'MALLEY: Yes.

PN342

THE SENIOR DEPUTY PRESIDENT: - - - which is why I qualified my question to you.

PN343

MR O'MALLEY: Yes, the answer is yes.

PN344

THE SENIOR DEPUTY PRESIDENT: Thank you. I propose to issue an interim order in this regard. I propose that it be an interim order because, first of all, of the uncertainty relating to the position of other contractors on the site and, secondly, because of the CFMEU request for an adjournment, and I am very conscious that they have given me an undertaking in this regard. I propose that the order - the interim order, apply in relation to employees of Built Environs Proprietary Limited who are working on the AD6 engineering construction site.

PN345

I propose that the order closely reflect, but not exactly equate, to that which has been sought by Built Environs so that it would read:

PN346

(1) that this order is directed to and binding upon the CEPU Electrical Division, its Secretary, officials and organisers, including Bob Geraghty and Wilf Deakin, officers of the CEPU Electrical Division, and to the Construction, Forestry, Mining and Energy Union, its Secretary, officials and organisers, including Martin O'Malley, Ben Carslake and Darren Roberts, officers of the union. It applies in relation to employees of Built Environs Proprietary Limited working on the AD6 engineering construction site;

PN347

(2) all industrial action relating to Built Environs employees organised or threatened by the CEPU Electrical Division and/or Construction, Forestry, Mining and Energy Union at the ACI site at 625 Port Road, West Croydon, in the State of South Australia, being all industrial action and, in particular, strikes or bans, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of work, shall not occur and shall, in any event, cease;

PN348

(3) the CEPU Electrical Division and CFMEU, its officers, shall cease and desist from any action incidental to any such industrial action covered by the order that I have previously mentioned;

PN349

(4) this order is of an interim nature, it will come into effect immediately and it will remain in force for a period of 1 week.

PN350

Further, I direct that during this week Built Environs do engage in discussions with the CEPU and CFMEU to consider and attempt to develop protocols relating to site occupational health and safety management and access. I propose that this matter would be reconsidered giving Mr O'Malley ample time to enlist the services of the unions industrial officer at 1.30 pm on Wednesday, 6 June. Do the parties have any questions in relation to my order?

PN351

MR GRANTHAM: I just want to confirm, that is 1.30 before you, Wednesday, the 6th?

PN352

THE SENIOR DEPUTY PRESIDENT: The 6th. Now, we can make a full copy of that order available to the parties tomorrow morning.

PN353

MR DEAKIN: To be picked up here?

PN354

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN355

MR DEAKIN: Are they delivered or picked up here?

PN356

THE SENIOR DEPUTY PRESIDENT: We will ensure that it is faxed to you.

PN357

MR DEAKIN: Thank you, sir.

PN358

THE SENIOR DEPUTY PRESIDENT: There being no further questions, I adjourn these proceedings accordingly. Thank you.

ADJOURNED ACCORDINGLY [5.47pm]