C2001/4110, Transcript of Proceedings [2001] AIRCTrans 1999 (17 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C2001/4110
C2001/4115

CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION - AUSTRALIAN CAPITAL TERRITORY BRANCH

and

STOCKPORT CIVIL ENGINEERING CONTRACTORS AND ANOTHER

Notification pursuant to Section 99 of the Act
of a dispute re alleged refusal to provide time
and wage records and other records

STOCKPORT CIVIL PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY
UNION - AUSTRALIAN CAPITAL TERRITORY BRANCH

Notification pursuant to Section 99 of the Act
of a dispute re bans and limitations actioned
by officials of CFMEU

CANBERRA

5.00 PM, TUESDAY, 31 JULY 2001

Continued from 27.7.01

PN1

THE COMMISSIONER: Mr Morphett?

PN2

MR MORPHETT: If I can, Commissioner, we were under the impression that today we could try and advance some of these matters by way of conference and then if those matters were not to reach a resolution today that we could list them for hearing at your convenience when you are back in Canberra. That was my understanding from the notification that was sent out was that we were here for a video conference. I did not know we were here for a video hearing. If we were here for the hearing I have documentation that I wish to hand up that would go to the witness statements and, obviously enough, I cannot do that with you down there.

PN3

THE COMMISSIONER: There are two applications listed for this afternoon. There is your application in relation to the industrial action.

PN4

MR MORPHETT: Yes, my application is in regard to that, Commissioner.

PN5

THE COMMISSIONER: And I am quite prepared to deal with that by conference. I do not see any reason for that to be necessarily on the record. Ms Schoonwater has got an application in about wages records and I would like to hear from her what it is she is after in relation to that application. Ms Schoonwater?

PN6

MS SCHOONWATER: Thank you, Commissioner. I seek your permission not to stand as I understand it is easier for the cameras. The CFMEU is seeking orders in furtherance of Print number PR907009 and order PR907034. To date the CFMEU is still being refused right of entry and copies of time and wage records. The CFMEU has requested that time and wage records be inspected to ensure that appropriate rates of pay. As you are aware from this history of this matter, this request has been made to the company's representative, Mr David Morphett of CONFACT, who has also refused our request on continuous occasions. So far the CFMEU has requested records at the following meetings: 20 June, 28 June, 3 July, 6 July, 11 July, 12 July.

PN7

The issue of time records has been raised on each occasion we have appeared before this Commission, both in conference and on the record. On three occasions the CFMEU has made a written request to CONFACT and on each occasion that request has been refused. At 8.30am on Monday morning, 30 July, to follow up a letter written on Friday afternoon, I contacted Mr Morphett and asked that the wage records be made available for inspection by 12 noon or that copies of the records be made available. I stated words to the effect that I would be available to go out to Stockport's office and that I was a holder of a permit under the Act. Mr Morphett replied words to the effect that I could go out there if I wanted but records would not be available.

PN8

I then asked when would the records be available, to which he replied "I can't tell you." I stated that we had made requests several times verbally at meetings in writing at conference before the Commission and at a hearing before the Commission. I asked him again when could we obtain copies of those records. He stated, "I don't know, I can't tell you." I informed Mr Morphett that he left us with no option but to seek another application before the Commission. Commissioner, in terms of addressing our application today I rely on the submissions that we made to give rise to your decision in Print number PR907009. Unless you wish me to repeat those submissions I do not think there is a need to because it is essentially a furtherance of that order.

PN9

MR WATTS: Excuse me, can I interrupt. I cannot see - all of a sudden I can see everybody. I have only been watching Sarah Schoonwater, Commissioner.

PN10

THE COMMISSIONER: Okay, so everybody can see everybody at the moment?

PN11

MR WATTS: Now I can.

PN12

MR MORPHETT: Yes, Commissioner.

PN13

THE COMMISSIONER: Okay, perhaps - can we leave it like that so everybody is on everybody's screen all the time even though one person might be talking? Mr Morphett, you have heard what Mr Schoonwater has got to say - - -

PN14

MR WATTS: Excuse me, Commissioner, I can see you now but I cannot see anybody else. It is fixed again.

PN15

THE COMMISSIONER: It may drop backwards and forwards, Mr Watts, so just take it that probably when I keep talking it gets put onto the video adjustment. Mr Morphett that is why Ms Schoonwater apparently wants a hearing because she is after an order and obviously we cannot make orders without a hearing. Now, I am happy to go off the record and deal with your matter in conference and then go back onto the record and deal with Ms Schoonwater's or if you think there is a chance that we can resolve Ms Schoonwater's problem without orders being made I am happy to try and deal with the lot in conference. Is there any chance that we will be able to deal with Ms Schoonwater's problem without orders?

PN16

MR MORPHETT: Well, Commissioner, I think the matters have to be dealt with in conference, yes, and hopefully we can reach a resolution to the issues of concern. All I wish to raise at this point, if I may, is Ms Schoonwater did contact me on Monday and identify that she was following up from a letter from Mr King on Friday 27 July identifying that he wanted to access some time and wages records for CFMEU classifications in the employ of Stockport. I advised her, as the Commissioner is aware, the company is based in South Australia. The records are not kept in Canberra, as I am sure even you are aware as well. In terms of access to any documentation it does take some time. That is all. I just say I am happy to deal with these matters in conference now, if it please the Commissioner.

PN17

THE COMMISSIONER: All right, just in case we can get a resolution I am happy to go off the record now so if the transcriber would turn the tape off for the moment.

SHORT ADJOURNMENT [5.07pm]

RESUMED [5.40pm]

PN18

THE COMMISSIONER: There is an application by the CFMEU for the time and wages records to be made available. Mr Watts, as I understand it, there is not a difficulty with making those time and wages records available. Can you please instruct Mr Morphett or now agree a time when Ms Schoonwater or a nominated member of the CFMEU can come to your site office at Stockport and inspect those time and wages records they are entitled to inspect?]

PN19

MR WATTS: No, Commissioner, I am not prepared to make that instruction. You will have to order that.

PN20

THE COMMISSIONER: All right. I order that the time and wages records be made available to the CFMEU - what is today - Tuesday 31, and you said they would be available at, shall we say 2 o'clock tomorrow afternoon, 1 August at the site office, the Stockport site office at the airport for Ms Schoonwater or a nominated CFMEU person with the requisite permit to inspect. Yes, Mr Watts?

PN21

MR WATTS: May I ask which particular employees are you referring to?

PN22

THE COMMISSIONER: The employees who are covered by the classifications in the Engine Drivers and Firemans Award ACT Common Rule Award that are working at the airport. Anybody who falls within the classifications in that Award.

PN23

MR WATTS: Our payroll system is centrally located in Adelaide for all of our operations on the eastern seaboard of Australia, which is the seaboard for us. 1.30 Canberra time - perhaps you would give me to the end of business tomorrow?

PN24

THE COMMISSIONER: Well, Ms Schoonwater, when is an appropriate time? When will you be able to be there to look at these things.

PN25

MS SCHOONWATER: 2 o'clock - - -

PN26

THE COMMISSIONER: I do not want to be any more difficult than necessary for Stockport. If we say 9 o'clock Thursday morning.

PN27

MS SCHOONWATER: No, but - - -

PN28

THE COMMISSIONER: You will be there?

PN29

MS SCHOONWATER: However, I will arrange for another official other than myself to - - -

PN30

THE COMMISSIONER: Ms Schoonwater will nominate another official with the requisite permit to attend at your site office at 9 o'clock Thursday 2 August, Mr Watts.

PN31

MS SCHOONWATER: I assume that means that copies will be made available?

PN32

THE COMMISSIONER: Well, under the Act if copies are requested they have to be made available, Mr Watts. It might be just easier if copies are made available. As you said, facsimile copies can be sent to Canberra and be made available to the CFMEU.

PN33

MR WATTS: Yes, okay and Commissioner out of courtesy to you I have to say that I will be seeking legal advice about staying that process but short of that, of course - - -

PN34

THE COMMISSIONER: It is a matter for you, Mr Watts. It is a matter for you what you do but that is the order. Could my associate please - are you in a position to put that order together tonight, Mr Ridgeway?

PN35

THE COURT: Yes, Commissioner.

PN36

THE COMMISSIONER: The time and wages records for any classifications covered by the Engine Drivers and Fireman's Award made available by Stockport at the Stockport site office at the Airport in Canberra to a nominated CFMEU official with the right permit to inspect at 9 o'clock on 2 August and for copies of those documents to be made available to that official at that time. All right?

PN37

THE COURT: Yes.

PN38

MS SCHOONWATER: Commissioner, in terms of the other issue, being the right of entry.

PN39

THE COMMISSIONER: Right of entry?

PN40

MS SCHOONWATER: Yes, entry because it is not entirely separate from time wage records, I was wondering whether you would be prepared to order a time for which subject to the meal breaks which we understand from submissions and correspondence from Stockport is 1pm, whether you are prepared to order a time for CFMEU officials. This has been going on for - - -

PN41

THE COMMISSIONER: Yes, I know. All right, Ms Schoonwater. Do we know what time the lunch break is tomorrow, the daytime lunch break?

PN42

MS SCHOONWATER: One pm.

PN43

MR WATTS: Commissioner, the - - -

PN44

THE COMMISSIONER: Ms Schoonwater, apparently they change. Mr Watts?

PN45

MR WATTS: Commissioner, generally they are at 1pm but there are about six different physical operations going on on site and there are - those operations are undergrounding services and building pavements and so on and so on, so I am not trying to avoid the issue but I need to ask the question of my people, or alternatively I need to go around and say "The time is one o'clock, or two o'clock, please arrange the day to meet that requirement." But if we are going to open up that air site lunch room as opposed to the land site lunch room then we need some undertaking from the union that they are not going to get jumpy about having a staff person there.

PN46

THE COMMISSIONER: Just a moment, Mr Watts. Ms Schoonwater?

PN47

MS SCHOONWATER: Commissioner, again we are going over old ground.

PN48

THE COMMISSIONER: Ms Schoonwater on Friday you said if it meant to get the security passes you had to be accompanied by a Stockport person.

PN49

MS SCHOONWATER: Yes, that is fine so long as what is not being meant now is that they'll have a Stockport manager there.

PN50

THE COMMISSIONER: Mr Watts, there must be a Stockport person that is not one of the management people who can accompany the CFMEU delegates to the lunch room for the purposes of security. So long as it is an accredited Stockport employee surely that is sufficient and they remain with the CFMEU people. I gather it is to make sure they do not go anywhere else, is it not? Is that not right?

PN51

MS SCHOONWATER: Commissioner I think we are dancing around the issue here. I think Stockport is dancing around the issue. In conference we hear Mr Morphett saying it will take weeks and it is physically impossible to get the time wage records and then - - -

PN52

THE COMMISSIONER: Ms Schoonwater, that is enough. Mr Watts, is there somebody who can accompany the CFMEU delegates tomorrow at lunch time if they turn up to get their passes from the site office and be at the gate at lunch time with a person from Stockport who is not management but is a Stockport employee that - you cannot be telling me that is going to infringe security, are you?

PN53

MR WATTS: What I am telling you is that there is delegate authority for issuing of passing and it needs to be one of our staff people. That is why I am raising the - - -

PN54

THE COMMISSIONER: Issue the passes to accompany the delegates I am talking about.

PN55

MR WATTS: I understand and the person who does the accompanying has got to be a person in a position of authority, that is why I am raising it because I do not want tomorrow - - -

PN56

THE COMMISSIONER: All right, who can it be, who is a person in - are you saying only management is able to do that, Mr Watts? Is that what you are telling me?

PN57

MR WATTS: Well, I am saying - if I go from the other end, it cannot be a construction work, they do not have delegated authority. It cannot be a plant operator, they do not have delegated authority. It needs to be - - -

PN58

THE COMMISSIONER: Where are these matters set down?

PN59

MR WATTS: They are set down in the contract and they are set down in CASA - there is a series of events which David Morphett has got the detail on but they go to our contract and then they go to a thing called method of work plan which is lodged with CASA and the airlines. There is quite a protocol to go through here.

PN60

THE COMMISSIONER: When the CFMEU go into the lunch room do these people - - -

PN61

MR MORPHETT: Commissioner, I may be able to give some assistance here.

PN62

THE COMMISSIONER: No, just a moment, Mr Morphett. Mr Watts, if the CFMEU people have the requisite passes, are accompanied to the lunch room by a management person and the management person then waits - I gather there is only one door out of the lunch room, is there?

PN63

MR WATTS: I suppose, let us assume there is, yes.

PN64

THE COMMISSIONER: All right, and the management person then waits somewhere within sight of that door, it stands to reason the CFMEU people are not going anywhere. So they can remain with their people in the lunch room, management can wait outside while they talk to the people in the lunch room. I do not see that that should cause any security problems at all and a suggestion that the management people have to be right with them at all times I just do not accept. I can accept that they have to know where they are and that they are not out on the tarmac or on the runway or something, fair enough. If they know they are in the lunch room and there is only one way out of it they can wait outside. There is no reason for the management people to be in there with them and that is what should happen tomorrow. The passes should be given to them, they should be accompanied to the lunch room by a management person who should then go and wait somewhere away where they can see the door to the lunch room but not be in the lunch room with them. I do not see that that should cause a problem.

PN65

MR WATTS: A bit more guidance from you, please. What should I do with the other 30 people?

PN66

THE COMMISSIONER: How many lunch rooms are there?

PN67

MR WATTS: I cannot answer that - there is one outside the fence which these chaps do not want to use.

PN68

THE COMMISSIONER: Perhaps the others could use the one outside the fence while the CFMEU people are talking to their people in the lunch room.

PN69

MR WATTS: Okay, that is fine and a bit more guidance. Every time the union have announced they are coming, by arrangement, which was twice when they did meet our people, and two other occasions when they no showed, we have put up typed notices announcing they were coming and we have had no involvement whether our people attended or did not attend. I have quite literally spoken to no one at all amongst our wages employees at all, not one sentence or one word, because I do not see any purpose. We have got no slavery, there is none in Australia, there is freedom of association for all our business. I would really like these guys to turn up when they say they're going to turn up, as opposed to not turn up.

PN70

THE COMMISSIONER: Well, they are going to turn up tomorrow.

PN71

MR WATTS: All right. Now, I would like to agree on some of words that we will put up, if there is time this afternoon and certainly first thing in the morning, so that our employees know. But what I do not want is to be accused of trying to hinder our people.

PN72

THE COMMISSIONER: Is it necessary that they - I mean, if the CFMEU people turn up in the lunch room they will know, will they not, when they are there?

PN73

MS SCHOONWATER: That is right.

PN74

MR WATTS: Well, I would have to be guided by you, but we have told our people before - - -

PN75

THE COMMISSIONER: I do not think it is necessary to make an announcement. I mean, if words spread - - -

PN76

MR WATTS: But it is necessary to explain to 30 of our people that they are not to use the lunch room, I have got to explain something.

PN77

MS SCHOONWATER: Commissioner - - -

PN78

THE COMMISSIONER: Ms Schoonwater, yes.

PN79

MS SCHOONWATER: Commissioner, this was covered in my submissions and it was covered in the decisions that I referred to in those submissions. Similar types of issues have arisen where the Full Bench of this Commission has considered such scenarios. And what the Full Bench said is that if there are some people present who do not wish to participate in those discussions, they simply do not participate in those discussions. I thought I made it expressly clear in what I was saying, at the hearing we had on 23 July.

PN80

THE COMMISSIONER: Well, that is true. Nobody is going to be forcing people to talk to the CFMEU, but the CFMEU do not have power to force people to talk to them. Mr Watts, I do not think you need be concerned about other people there. They will just ignore them if that is what they want to do and go on doing their normal thing.

PN81

MR WATTS: I understand. I am concerned that twice now we have been accused, and in writing as well, and in front of you I understand, of coercing our people to do this or do that. So I want to have an agreed mechanism so there is no suggestion of coercion.

PN82

THE COMMISSIONER: Well, I think the only thing you need do is just leave it along. Make available the passes to the CFMEU, have whatever security arrangement is absolutely necessary to get them to the lunch room at the appropriate time and then leave them be. And then make sure that somebody escorts them from the site when they have finished their meetings. I do not think you need take any further part in it. If there is a problem - I mean, there are all sorts of mechanisms to deal with any problems that might arise. I do not think it will be necessary. The CFMEU just wish to talk to people who are eligible to be their members and that is all there is. And if there are other people there, they need not take any part in it. I cannot imagine any of your engineers will be particularly concerned one way or the other, and the CFMEU are not going to be bothered to people who are of no concern to them.

PN83

So if you just leave them alone once they get there, there should not be a difficulty. And I am not saying that I have in any way been influenced by any suggestions that management are doing anything to the people there. All I am saying is, management are not making it very easy for the CFMEU to exercise what appears to be their right under the Act and to comply with the order that I gave on Thursday. And I just think now would be a good time for everybody to just comply with the order and see what happens. I do not think it is going to be a big deal. Are there any other matters anybody wants to put to me?

PN84

MS SCHOONWATER: No, except can we clarify what time we are to turn up to the Stockport office tomorrow to obtain the passes?

PN85

THE COMMISSIONER: Well, Mr Morphett, can you ring Ms Schoonwater in the morning, before 10 o'clock, and tell her exactly what time lunch is going to be so that she could be at the site beforehand.

PN86

MR WATTS: Commissioner, I am quite happy to make - to try and get this resolved, I will make a commitment now and I will ask my project manager Gary Neave to effect this. Put into effect, that is, 1 o'clock tomorrow, if that is agreeable with Steve King and the rest of the boys. Now, what I would like to know is how many people propose to turn up, because I do not really want to issue seven passes - - -

PN87

THE COMMISSIONER: No, all right. Ms Schoonwater, how many people are going to turn up tomorrow?

PN88

MS SCHOONWATER: Two.

PN89

THE COMMISSIONER: Two, two permit holders will be at the site office at quarter to one, 12.45 to get their passes, so that they can be at the other lunch room by 1 o'clock tomorrow. All right, Mr Watts?

PN90

MR WATTS: Yes, 12.30, Commissioner, it is just logistics around the airfield.

PN91

THE COMMISSIONER: Okay. Is that a problem, Ms Schoonwater?

PN92

MS SCHOONWATER: No.

PN93

THE COMMISSIONER: All right, two accredited representatives with permits of the CFMEU will be at your site office at 12.30 so as to make the logistical arrangements to be at the lunch room by one, all right. If there is any difficulty at all, can somebody let my associate know and he will be in touch with me. But I am not anticipating any difficulty. I do not see any reason why that should be. These things happen every day, all over the place, on airports and in other areas of great security risk and I just do not know what the big problem is. So can we call it a day today and we adjourn this conference hearing now.

PN94

MR WATTS: Commissioner, one more thing.

PN95

THE COMMISSIONER: Yes, Mr Watts.

PN96

MR WATTS: We have come to you today asking for your assistance I suppose in some legal format regarding blocking of gates and I heard Sarah Schoonwater say that there was not actually any locking of gates. So we do not agree with that. But having said that, if she wants to make an undertaking there will not be, then we would appreciate that as well.

PN97

THE COMMISSIONER: She has already done that, Mr Watts. She did it as we went back onto the record, did you not, Ms Schoonwater, you said that it did not happen and it would not happen, is that not what you said?

PN98

MS SCHOONWATER: That is my recollection, that is my recollection.

PN99

THE COMMISSIONER: Yes, she has given that undertaking that it will not happen. She denied it did, but she says it will not, so there should not be a difficulty, all right. That undertaking has already been made.

PN100

MR WATTS: All right. So could I just say then on the record that we are going to have to resort to video filming if anyone tries to block the gates again. And I appreciate the undertaking.

PN101

THE COMMISSIONER: Well, that is entirely a matter for you, entirely a matter for you, Mr Watts, but Ms Schoonwater has given an undertaking that it will not happen and I have no reason to doubt that that undertaking will be complied with.

PN102

MR WATTS: Thank you.

PN103

THE COMMISSIONER: All right, I will adjourn.

ADJOURNED INDEFINITELY [5.57pm]