C2001/4834, Transcript of Proceedings [2001] AIRCTrans 2541 (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 0173

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/4834

KANE CONSTRUCTIONS PTY LTD

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99
of the Act of a dispute concerning
bans on deliveries to the Victorian
College of the Arts

MELBOURNE

9.55 AM, MONDAY, 10 SEPTEMBER 2001

PN1

MS K. ATTWOOD: I appear for the Master Builders Association of Victoria on behalf of Kane Constructions, with me is my colleague MR CROSS and MR G PURCELL Project Manager of Kane Constructions.

PN2

THE COMMISSIONER: Thank you.

PN3

MR D. NOONAN: I appear for the Construction, Forestry, Mining and Energy Union and with me I have MR A. McLOUGLAN who is the area organiser.

PN4

THE COMMISSIONER: Yes, thanks Mr Noonan. Yes Ms Attwood?

PN5

MS ATTWOOD: Commissioner, I intend to explain the nature of the dispute, the context of discussions so far held and finally, what we are seeking from the Commission today. Kane Constructions is the head contractor on the construction of a three level drama school at the Victorian College of the Arts, Southbank. Commissioner, by way of background, current constructions works include detailed excavation, concrete flooring, formwork and pre-cast erection. The vehicle site access if via Sturt Street Southbank. Once inside the site there is a large delivery entrance. Foot traffic is via a separate entrance.

PN6

There are approximately 20 to 30 personnel on-site including two labourers employed by Kanes. One of the labourers has traffic management training. On 5 September a CFMEU organiser, Mr Adrian McLouglan, attended the site. He initially spoke to Paul Christian, Kanes Site Manager and claimed that the traffic management was not adequate and the site requires a permanent traffic manager. On 6 September, Worksafe inspected the site and advised that the traffic management, in accordance with the procedures in place, is sufficient for the site conditions.

PN7

They have advised that deliveries should be co-ordinated on a daily basis and the procedures reviewed as works proceed. Commissioner, I would like to tender a copy of the Worksafe Field Report that was provided by Mark O'Brien on 6 September.

EXHIBIT #A1 WORKSAFE FIELD REPORT DATED 6 SEPTEMBER

PN8

MS ATTWOOD: I would further like to submit, Commissioner, a follow-up to that report - - -

PN9

THE COMMISSIONER: I might read the one you just tendered.

PN10

MS ATTWOOD: I would like to submit a further report that was provided by Dermott Moodie in follow-up to that visit.

EXHIBIT #A2 REPORT BY DERMOTT MOODIE

PN11

MS ATTWOOD: And I apologise for the quality of it.

PN12

THE COMMISSIONER: Have you got a copy of that, Mr Noonan? Yes?

PN13

MS ATTWOOD: In a subsequent meeting, on-site on 6 September, with Paul Christian the site manager and Geoff Purcell, Adrian McLouglan re-asserted the need for a full time traffic controller on-site and that this role could not be filled by one of the two Kane's labourers currently on site. Adrian McLouglan read the Worksafe report at this meeting and noted that Kane Constructions are responsible for traffic management on-site. Kanes advised Adrian McLouglan that they are responsible for ensuring adequate traffic management was in place.

PN14

Further there are sub-contract personnel on-site with appropriate traffic management training. Adrian McLouglan stated that it was Kane's responsibility to manage the traffic and that they could not pass that responsibility on to sub-contractors. He went on to say that until there was a full time traffic manager employed, there was a ban on all deliveries and no pre-cast erection. Adrian further advised that, if Kane's wanted, he knew people looking for work.

PN15

The position of Kane Constructions is that the company currently employs a labourer who is qualified to perform the role of traffic management, the size of the project does not warrant three labourers, with one dedicated solely to traffic management, Kanes are not seeking to shift responsibility to the sub-contractors. In fact, they seek to co-ordinate a traffic management regime in tandem with the sub-contractors, with Kanes retaining overall responsibility for the site's safety.

PN16

Commissioner, we are here today to respectfully seek conciliation within the Commission, so that the company can continue working on the project in a ban free environment. If need be, we ask the Commission to exercise its powers under section 111T of the Act, if the Commission pleases.

PN17

THE COMMISSIONER: When you are ready, Mr Noonan.

PN18

MR NOONAN: Commissioner, on my instructions, the situation that has occurred at the site that Mr McLouglan has become concerned about the lack of traffic management when he attended the site. And he informed me that he became concerned, in fact, after a near miss as he came into the site. My instructions are that there are in fact two accesses to the site, which may be used by vehicles and the situation is that when the issue was raised with Kane Constructions, Kane Constructions replied that management of traffic was the responsibility of sub-contractors and that each sub-contractor would be responsible for ensuring that there was traffic management when any particular goods were delivered to or from the site that pertained to that particular sub-contractor.

PN19

Mr McLouglan didn't accept that and does not accept that proposition as being a safe or appropriate way for the site to proceed.

PN20

THE COMMISSIONER: Who does Mr McLouglan allege said that to him?

PN21

MR NOONAN: Well I can get some instructions on that, Commissioner, but I understand Mr Purcell put that position on behalf of the company. It is a matter of concern in the construction industry in general, Commissioner, when head contractors seek to, if you like, contract out their responsibility, under the Occupational Health and Safety Act, in respect of the ultimate responsibility on-site lying with that head contractor. Now, there is an ongoing argument about the issue of how this work should be done, how it should be co-ordinated and who should carry the work out.

PN22

The individual who is, we are informed, trained in respect of traffic management who is employed by Kanes on-site is the peggie who has the responsibility of keeping the amenities clean and it is certainly the case that Mr McLouglan has said that he doesn't believe that it is appropriate that that person should also be running around, if you like, with a stop sign at the same time as he is responsible for keeping amenities clean. That is the only person trained, we are informed, in traffic management at the site, by Kane Constructions.

PN23

We have been provided with a copy of the first field report A1, which was put out by Mr O'Brien and don't believe that that in any sense clear the company of the responsibility which we say they have. In respect of A2, the second field report, which is by a Mr Dermott Moodie, we are unaware of that report, we think it is disappointing that report would be submitted without Mr Moodie seeing fit to discuss the union who raised the matter in the first place. It is a problem we sometimes have with WorkCover inspectors that they seem to think their responsibilities only lie to the management.

PN24

THE COMMISSIONER: Well that is a matter you should take up with the State Government, not the Commission.

PN25

MR NOONAN: Yes, well we will be taking it up with the State Government and we have done that.

PN26

THE COMMISSIONER: I hope you do because they have been doing some other silly things as well, in my view, to both sides I might add.

PN27

MR NOONAN: It seems to be an ongoing problem with some individuals in the WorkCover area, they think their responsibility lies to management only. We respectfully beg to differ with Mr Moodie's conclusions and we would have begged to differ prior to him writing the notice had he had the courtesy to discuss the matter with the individual who had raised it at the site level. We are prepared to participate in conciliation, Commissioner, in relation to this matter. We think that it could actually be sorted out at site level and that is probably the way that most of these things are sorted out, but given that Kanes have seen fit to bring the matter to the Commission, we are more than happy to participate in some conciliation.

PN28

In respect of any orders, we say that any order that - well I assume Ms Attwood's submission was for some form of order under a section 111(1)(t), we would say that, Commissioner, any order should not issue, that this is a matter that relates to health and safety at the site and that it would be unfortunate if it was necessary for the Commission to exercise its jurisdiction about that.

PN29

THE COMMISSIONER: Well the Commission will make its own mind up about that.

PN30

MR NOONAN: Yes, it is just a matter of the submission I put, in relation to it, Ms Attwood has raised it, so I need to deal with it. Our view would be that there should be some discussions about this matter and the matter should be resolved. If the Commission pleases.

PN31

THE COMMISSIONER: Yes. Anything else, Ms Attwood?

PN32

MS ATTWOOD: No, not at the time, Commissioner.

PN33

THE COMMISSIONER: Well let us get the real issues cleared up, Ms Attwood. What are the total duties - we are not in conference yet, Ms Attwood. What are the total duties of the person employed by Kane Constructions as the traffic controller? In other words, is he also the peggie?

PN34

MS ATTWOOD: No, it is my instructions that he is not the peggie as well, that - - -

PN35

THE COMMISSIONER: Who is the peggie on the site?

PN36

MS ATTWOOD: The peggie is a gentleman by the name of Mr Joe Mannucci.

PN37

THE COMMISSIONER: And who is doing the traffic control?

PN38

MS ATTWOOD: The traffic controller is Mr Mick Bell.

PN39

THE COMMISSIONER: What are the duties that Mr Bell is carrying out?

PN40

MS ATTWOOD: He is also the shop steward and the OH and S rep.

PN41

MR NOONAN: Commissioner, I have just - I should point out, I have inadvertently misled the Commission about that matter. I have just conferred with Mr Bell, who is in the Court and in fact it is Mr Bell who is trained in traffic management. There was some confusion about that matter and I apologise for that. Mr Bell is trained in traffic management, he is the shop steward at the site and Mr Mannucci is the peggie, he is not trained in traffic management.

PN42

THE COMMISSIONER: You said in your submission, Ms Attwood, that the company was not resiling from their responsibilities about traffic management, is that correct?

PN43

MS ATTWOOD: That is correct, Commissioner.

PN44

THE COMMISSIONER: And an employee of Kanes was in fact performing the role in respect to traffic management?

PN45

MS ATTWOOD: That is right. There is also - it is our understanding that there are also sub-contractors on site, who do have traffic management training.

PN46

THE COMMISSIONER: Well, I am not too worried about them, because I don't think it is their responsibility, that is something for someone else to argue. The Commission will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WORKSAFE FIELD REPORT DATED 6 SEPTEMBER PN8
EXHIBIT #A2 REPORT BY DERMOTT MOODIE PN11