C2001/4729, Transcript of Proceedings [2001] AIRCTrans 2518 (2 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 0153

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/4729
C2001/4730

BORAL BUILDING SERVICES PTY LTD

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the
Act of a dispute re alleged bans by the
union on delivery of scaffolding and
associated equipment to sites being
constructed by Henley Property Group

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by Boral Building Services Pty Ltd
for an order to stop or prevent
industrial action

MELBOURNE

10.00 AM, FRIDAY, 7 SEPTEMBER 2001

PN1

MR B. SHAW: I seek leave to appear for the notifier in the section 99 and the applicant in the section 127. If so given leave, appearing with me is MR D. COHEN from the company.

PN2

MR NOONAN: I appear for the Construction, Forestry, Mining and Energy Union.

PN3

THE COMMISSIONER: What do you say about leave, Mr Noonan?

PN4

MR NOONAN: No objection to leave, Commissioner.

PN5

THE COMMISSIONER: Yes. Yes, Mr Shaw.

PN6

MR SHAW: Commissioner, the subject matter of the matters that are now before you, concerns bans placed by the CFMEU and its members on initially the delivery of scaffolding to a company known as the Henley Property Group. The history of the dispute is essentially as set out in the grounds in the section 127 notification. The Henley Property Group is a major builder of residential dwelling houses. This is the cottage building industry. Boral has a contract with the Henley property group to supply scaffolding to that organisation, which are then - which is then erected by contractors or a contractor who is selected and contracted to the Henley Property Group.

PN7

The contract between Boral and Henley Properties is a contract of hire - supply and hire, and it has no further involvement in it. The - on the morning of 5 September at about 8.45, Mr Frank O'Grady, an organiser from the CFMEU visited the company's yard and imposed a ban on the supply of materials to Henley Property Group. The following morning, yesterday, that ban was tested in the sense that the workers were asked to load material for Henley Properties and they declined, saying that they - that bans had been imposed by the union on the supply of such materials.

PN8

Further to that, bans have been imposed by the CFMEU on two jobs which are being undertaken on both a hire and erect basis by Boral. The first of those is at Federation Square where a ban has been placed on the dismantling of scaffolding on a building known as the Centre Media Building. That ban was imposed yesterday and certainly in due course, and I understand by the end of today, will affect the capacity of Toratzo workers to continue with their work. And also yesterday, a ban was placed on the Glaxo Pharmaceuticals job at Boronia.

PN9

In this case the CFMEU job steward informed the company that Boral scaffolders would not be allowed to start and the action is being taken in support of the same claim. The actual substance of the claim appears to be that Henley Properties are using a company to erect scaffolding and dismantle scaffolding on housing sites that is not a respondent to an enterprise agreement - a certified agreement of the Commission. And yesterday I understand there were some discussions between Mr Cohen and Mr Cummins, in which Mr Cummins informed Mr Cohen that the bans were also associated with a wage claim; that an employee of the scaffold company that Henley are using had attended the union office and complained that he wasn't being paid properly. I - at this stage I will seek to tender one exhibit. It is a letter from Henley Properties. It is obviously written for the purpose of these proceedings.

EXHIBIT #A1 LETTER FROM HENLEY PROPERTIES

PN10

MR SHAW: It sets out the arrangements between Henley and Boral. I also have a copy of the contract between Henley and Boral. I don't have spare copies, but usually clients at this end of the table object to contracts being shown or tendered because of commercial privilege. But on this occasion we certainly have no difficulty with Mr Noonan inspecting that document and satisfying himself as to its terms.

PN11

THE COMMISSIONER: Pass it across.

PN12

MR SHAW: And if the Commission wishes, we are quite happy to have copies made and tender them on the Commission's file.

PN13

THE COMMISSIONER: We will mark that as A2, when you have read it.

EXHIBIT #A2 CONTRACT BETWEEN HENLEY AND BORAL

PN14

THE COMMISSIONER: Yes, Mr Shaw.

PN15

MR SHAW: That is all I have to put at this stage, Commissioner.

PN16

THE COMMISSIONER: Yes, I would like to just give Mr Noonan a moment to peruse that document.

PN17

MR SHAW: Actually, sorry. I am not trying to drop Mr Noonan - there is one word of formality, which apart from getting the address of the company wrong, telephone and fax numbers wrong on Wednesday when I put in the notification, I even went as far as getting the name wrong. The company has changed its name now, to Boral Formwork and Scaffolding Proprietary Limited. So, I would seek the leave of the Commission to have the applications amended to reflect the correct name.

PN18

THE COMMISSIONER: Yes.

PN19

MR NOONAN: Commissioner, can I say at this stage, I am not sure if we are in the section 99 matter or the section 127 matter. There has been no application to join the two matters, and perhaps I should say what my attitude is to that. It would be the union's view at this stage, that we would submit that it is appropriate that the section 99 matter be heard first, to see if there - - -

PN20

THE COMMISSIONER: Well, section 99 deals with conciliation and perhaps with the continuous orders under section 111(1)(t) but section 127 says the first step is conciliation, so I see no difference between the two at the moment.

PN21

MR NOONAN: And, in fact, that was one of - that was the major reason that I was to propose that the section 99 should be dealt with first, because that provides an avenue for conciliation to take place.

PN22

THE COMMISSIONER: Well, Mr Noonan, you know it is my form to always try to resolve the matters by conciliation.

PN23

MR NOONAN: Yes, I am aware of that, Commissioner.

PN24

THE COMMISSIONER: That is why when you get an order you have deserved it or haven't deserved it.

PN25

MR NOONAN: I missed that, I am sorry, Commissioner.

PN26

THE COMMISSIONER: I said that is why when you get an order against you, you either deserved it or haven't. That is in your view.

PN27

MR NOONAN: Yes, well, I won't chase that particular rabbit down that particular hole, Commissioner, at this time. Can I say this. The information that has been put forward today - some of that information is new to us. I have no instructions as to any industrial action at Federation Square or at the Glaxo project at all. And I simply don't know what the situation is in relation to that. It is not foreshadowed in the application that Mr Shaw has made, neither has the union received any outlines of witness evidence, nor are we aware as to whether the company wishes to call any witnesses to press their case.

PN28

THE COMMISSIONER: Well, if there is a need to pursue the application pursuant to 127 into a full hearing, Mr Noonan, they had better have some people to support Mr Shaw's submissions.

PN29

MR NOONAN: Yes, thank you, Commissioner. My instructions in coming here today, were different to what has been put by Mr Shaw to this extent. My instructions were that the contract was a contract for labour and material, as is customary in the scaffold area. The parties are subject to a certified agreement which deals with issues of supplementary labour. It is my instructions that there has been discussion between the parties over a period of time about issues as to where Boral's own direct labour will be used to undertake work and where that work will be contracted out.

PN30

There is a lack of agreement about that issue in relation to the contractor mentioned by Mr Shaw. I say at this stage that insofar as any issues are between the parties, there is no industrial action in place in pursuit of a certified agreement, with Action Scaffolding. That is not correct, and we wish to have that on the record, just at this stage. We - it is the situation that the union has received complaints about that particular company and that we have a member who has presented at the union office complaining of under-payments in respect of that company.

PN31

And that I understand Mr Cummins from our organisation has attempted to have discussions with Action Scaffolding about the resolution of that. Those discussions have been unsuccessful, and this morning, before coming here, I am informed by Mr Cummins that a complaint has been received that, in fact, the member involved - his wife received an abusive phone call from the company in question at home last night, as a result of his pursuing the particular wage claim through the union.

PN32

THE COMMISSIONER: Are you talking about Action Scaffolding?

PN33

MR NOONAN: Yes.

PN34

THE COMMISSIONER: You are not talking about Boral?

PN35

MR NOONAN: Yes, that is what has been put to me, Commissioner. Commissioner, it seems that - it seems to me that there needs to be some discussion about these matters. We would be assisted by a conference between the parties, chaired by the Commission as presently constituted. It seems that - it seems to us that the issue about the resolution of this wage claim is not unresolvable and we would like to have some discussions with Boral and at this stage, with the assistance of the Commission, to see if we can take the matter further.

PN36

THE COMMISSIONER: Have you got anything to say, Mr Shaw?

PN37

MR SHAW: Look, we have no objection to that course being taken. There is nothing I need to comment on. I would only be repeating what my instructions were before if I were to say anything else.

PN38

THE COMMISSIONER: The Commission will adjourn into conference. Any persons not involved in this matter will leave the Commission.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER FROM HENLEY PROPERTIES PN10
EXHIBIT #A2 CONTRACT BETWEEN HENLEY AND BORAL PN14