C2001/456, Transcript of Proceedings [2001] AIRCTrans 178 (9 March 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 6095

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C2001/456
C2001/477

WORKHIRE

AND

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
AND OTHERS

NOTIFICATION PURSUANT TO SECTION 99
OF THE ACT OF A DISPUTE RE ENTERPRISE
BARGAINING AGREEMENT NEGOTIATIONS

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

APPLICATION UNDER SECTION 127(2) OF THE
ACT BY WORKHIRE AND OTHERS FOR AN ORDER
TO STOP OR PREVENT INDUSTRIAL ACTION

MELBOURNE

4.10 PM, WEDNESDAY, 19 FEBRUARY 2001

CONTINUED FROM 14.2.01

PN43

THE SENIOR DEPUTY PRESIDENT: The first of these matters was listed for report back later this morning. I moved the hearing date to this time and I also listed conjointly with it an application under section 127 of the Act. Can I have the appearances in those matters, please. I will take fresh appearances.

PN44

MR B. NEILL: I am appearing in the matter C 2456 of 2001 for Workhire and with the other Esso contractors.

PN45

MR R. DALTON: I seek leave to appear for Worley ABB Joint Venture and ABB Industry Pty Ltd in relation to their section 127 applications.

PN46

MR S. DARGAVEL: I appear on behalf of the AMWU together with MR WARREN and MR BRADLEY.

PN47

MR T. LEE: I appear on behalf of the Australian Workers Union.

PN48

MR D. NOONAN: I appear on behalf of the Construction, Forestry, Mining and Energy Union. With me I have MR D. PILLAR.

PN49

MR J. MADDISON: I appear on behalf of the CEPU with MR P. MOONEY.

PN50

MR NEILL: Your Honour, I omitted to mention that in matter 477 I will be appearing for Workhire, ETRS Pty Limited, Skilled Engineering, Vactech, Lothway-TBS Pty Limited, Shell Road Contracting.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Neill. Is there any objection to Mr Dalton's application for leave? Leave is granted, Mr Dalton. Now, what is the position with these matters?

PN52

MR NEILL: Well, your Honour, if I could report back on our section notification, since we were last before your Honour a further conference has taken place between the parties on Thursday, 14 February at Traralgon and as a result of that conference last Thursday, the unions reported back to their members on Friday morning and as a result of that report back meeting, industrial action in the form of strike has taken place at Longford and Long Island Point and on that basis, your Honour, the section 127 notification has been filed.

PN53

THE SENIOR DEPUTY PRESIDENT: Are you wishing to deal with that now, Mr Neill, or as soon as practicable?

PN54

MR NEILL: I would like to deal with that matter, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: We will just hear what the unions have to say, or Mr Dalton perhaps first. Have you got anything you want to add in that matter?

PN56

MR DALTON: Well, in relation to the companies I am representing, we are forced to file a section 127 which is in stark contrast to the outcome of the conference before you last week. It is set out in the grounds of the applications but as far as we are concerned we had reached - - -

PN57

THE SENIOR DEPUTY PRESIDENT: We haven't called that one yet, Mr Dalton.

PN58

MR DALTON: I thought you were asking me in relation to those applications, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: No. Sorry, I will get to that in a minute.

PN60

MR DALTON: Yes, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dargavel.

PN62

MR DARGAVEL: Your Honour, I became aware of these proceedings when your Honour adjourned the previous proceedings and met some of my comrades in the corridor who had been recently made aware of the applications. Just to dispense with some procedural matters, we don't agree or disagree about issues of service but I would appreciate copies of the applications and the affidavits the respective applicants are relying upon and an opportunity of reading those. But what I can say about the limited knowledge that I have of these applications, your Honour, is that there is no industrial action today.

PN63

The workforce, as I am instructed, is having a rostered day off and as I understand it are returning to work tomorrow. So there is no great, mad urgency, in my respectful submission, for dispensing with any matters this morning and what we would seek is further information about the applications, particularly the application and the affidavits, and an opportunity of reading those documents and for receiving instructions before we can give you a more comprehensive submission, your Honour. But we wouldn't be opposed to a conference of the parties if that is what the applicants thought could be productive at some juncture. If your Honour pleases.

PN64

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dargavel. At the moment, as I say, I am only dealing with, if I can call it, the Workhire section 99 and the Workhire and Others 127. I haven't got to the Esso matters or the ABB matters yet.

PN65

MR DARGAVEL: Well, the submission that I have just made relates to the matter that you have called and I think you will understand the way it will relate to the rest of those.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, I know. Yes, thank you. Mr Lee.

PN67

MR LEE: Your Honour, we met with the employers commonly known as the maintenance contractors last Thursday. Unfortunately, that meeting didn't go too well and the companies' position of our last meeting had not changed and they weren't prepared at that meeting to press the negotiations any further; rather, required of us further explanation on our log of claims that they have had since October of last year. When that was reported back the following morning at the Longford site the various memberships reacted by withdrawing themselves from the site in a show of disgust but, as Mr Dargavel has already indicated, there will be a normal resumption of work at 7.30 am Tuesday morning, that is tomorrow morning and there is no further industrial action planned.

PN68

We were of the understanding that following a request from Esso last Thursday night we were to meet with Esso in their building at Southbank with the maintenance contractors at 12 o'clock today. Their letter indicated that they wanted to facilitate some discussions between the contractors and ourselves. The next thing we know there is a flurry of faxes on Friday evening which brings us here today. But we were prepared to go ahead with the meeting. We indicated to Esso that we would be in attendance at 12 o'clock. I don't know whether that is going ahead now but we are here and we can meet.

PN69

THE SENIOR DEPUTY PRESIDENT: We will wait and see, Mr Lee. Thank you.

PN70

MR LEE: Thank you, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: Mr Noonan.

PN72

MR NOONAN: Your Honour, my submissions are substantially similar to those of Mr Dargavel in that we say that, firstly, we believe that while we haven't seen the evidence upon which the applicant intends to rely in respect of this section 127 application and we would be greatly assisted by doing so, if that evidence is to be given here this morning, then I would be asking for an adjournment to receive instructions about that evidence prior to any cross-examination. Our primary submission, though, is there is no industrial action occurring as of today. Today is in fact, on my instructions, a rostered day off at the site and that there is proposed to be a return to normal work at normal starting time tomorrow. In line with that, our submission would be that we would be seeking conciliation either through the auspices of the Commission or by direct discussions between the parties in order to progress the matter. Those are my submissions, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Maddison.

PN74

MR MADDISON: Your Honour, just briefly, I support the position put by my colleagues at this end of the bar table. I just foreshadow if an adjournment application of the 127 is actually pressed today, I support what Mr Lee has said about having the parties all here and discussing the actual substance of the dispute as probably a first step in trying to avoid the necessity of doing that on other occasions. If your Honour pleases.

PN75

THE SENIOR DEPUTY PRESIDENT: Mr Neill, what do you say about three things: firstly, whether there was a meeting scheduled today with the client; secondly, what do you say about the request for an adjournment, and thirdly, is there any point in having a conference? Perhaps you can deal with those one by one.

PN76

MR NEILL: Thank you, your Honour. I wouldn't want the Commission to proceed on the basis that everything has been resolved as might be suggested from the other end of the table. In fact, people went on strike last Friday as indicated and other people were scheduled to work over the weekend and that was not the case. We do hear that there is a return to work tomorrow from one organisation but there is no guarantee that will happen. So it is a matter of great concern to my clients, the current state of affairs at Longford and Long Island Point.

PN77

In respect to your questions, your Honour, I understand the client Esso did request a conference of the unions and the contractors for 12 noon today. As far as an adjournment is concerned, that is a matter that we believe may be appropriate but more appropriate, we believe, to proceed with a conference may be more effective. Certainly my clients in these negotiations have consistently indicated their preparedness to negotiate with the unions and renew this agreement as soon as possible but there has been reluctance from the unions to participate in any realistic way in those discussions. So if that process would be assisted by a conference, your Honour, under your chairmanship, that would certainly be our preferred course.

PN78

MR HARTIGAN: If it may assist, your Honour, in relation to the 166A, which you haven't called on yet - - -

PN79

THE SENIOR DEPUTY PRESIDENT: I was just about to call that.

PN80

MR HARTIGAN: I would seek leave to appear on behalf of Esso in respect of that and if we could assist your deliberations about a conference, certainly what Mr Lee says is correct, that there was a meeting programmed and arranged on Thursday but, of course, subsequent to that, there was industrial action on Friday and over the weekend and today. My client is here and is prepared to enter into a conference, as opposed to some other place, if that will assist to resolve the matters.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hartigan. Mr Hartigan, do I understand you correctly, you would consent if I called the 166 matter on to that being adjourned to be relisted at a later time?

PN82

MR HARTIGAN: No, your Honour. With respect to there being conciliation in respect of the issues that are in dispute, you may notice that the 166A application deals with industrial action being taken by both maintenance contractors and the construction constructors, both matters before you today in separate 127 applications. So we are happy, and as we have the onus on us to be here to conciliate, we are happy to be involved in a conciliation in relation to the matters in dispute. As Mr Lee said - - -

PN83

THE SENIOR DEPUTY PRESIDENT: Well, which matters, the construction ones or the maintenance ones or both?

PN84

MR HARTIGAN: Both, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: The trouble is I can't be absolutely schizophrenic.

PN86

MR HARTIGAN: Perhaps if the - I appreciate that, your Honour. If the matters might be dealt with one at a time, conferences in respect to the separate issues - attempt to resolve them.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. There is one other problem, Mr Hartigan. You appreciate that under section 166A there are time limits involved. I don't want to be accused of denying people any opportunity to put submissions that they might want to put about that on the basis of running out of time. So I just ask you to bear that in mind.

PN88

MR HARTIGAN: Certainly.

PN89

THE SENIOR DEPUTY PRESIDENT: I will stand down the two matters that I called on, namely 456 and 477, and I will now call on the two section 127 applications which I understand to relate to construction. They are matters C number 2001/482 and C number 2001/483.

ADJOURNED INDEFINITELY [11.40am]