C2001/5137, Transcript of Proceedings [2001] AIRCTrans 2781 (17 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 0476

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/5137
C2001/5138

ABIGROUP NETWORKS PTY LTD

and

AUTOMOTIVE, FOODS, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Notification pusuant to section 99 of the Act
of an industrial dispute re construction of the
Somerton Natural Gas Pipeline Project

ABIGROUP NETWORKS PTY LTD

and

AUTOMOTIVE, FOODS, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

Application under section 127(2) to stop
or prevent industrial action

MELBOURNE

11.30 AM, THURSDAY, 27 SEPTEMBER 2001

PN1

MR B. SHAW: I appear for the notifier in the case of section 99, an applicant in the case of section 127 and I appear with MR P. SHELL and MR M. O'CONNELL.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturers and Workers Union, together with MR T. BRADLEY.

PN3

THE COMMISSIONER: Mr Shaw?

PN4

MR SHAW: Commissioner, the application is made pursuant to section 42(3)(b) in that it is the contention of the company that special circumstances exist in these proceedings that make it helpful and desirable that certainly this party be represented by counsel and may in due course require the other party to be so represented too. The issue we are currently facing is a essentially a green ban and stated as such, the organisation know as Friends of Merri Creek will point out in their publications that it is the first green ban in defence of a natural place for 20 years and it therefore raises issues which transcend more than industrial matters and certainly do require some degree of potentially - potentially anyway, I suppose if Mr Addison is going to tell us he will lift the bans immediately then perhaps we do not need counsel, but they certainly potentially raise issues that, in my submission, create special circumstances.

PN5

The substantive application is an application pursuant to section 127(2) of the Act which also potentially raises issues of jurisdiction and of significant public importance which in my submission also creates special circumstances requiring or making it desirable that counsel represent the company, if the Commission pleases.

PN6

THE COMMISSIONER: Yes. Mr Addison?

PN7

MR ADDISON: Yes, thank you, Commissioner. Commissioner, with regard to section 42(3)(b), we see it with regard to the application there are no special circumstances as such. We understand the application is pursuant to section 127. Section 127 carries with it certain jurisdictional requirements as Mr Shaw has pointed out, however, those jurisdictional requirements are well known now. It is not as if section 127 is a new section. There has been many, many, many determinations in this place both before single Commissioners and Full Benches with regard to jurisdictional prerequisites inherent within an application of section 127.

PN8

I know Mr Shell, the Company's industrial relations manager is here. The application is signed by Mr Shell and one presumes that Mr Shell, being an industrial relations specialist has some comprehensive and proper knowledge of section 127, its requirements etcetera. I would note that Commissioner Whelan on a number of occasions now has made those observations very clear in the Commission, that the parties do know the requirements that need to be met. With regard to the submission about green bans, Commissioner, we would say maybe the application should be directed against the Green Organisation rather than against the AMWU. It will certainly be our submission that no industrial action is currently happening, threatened or pending or probable on that site as we speak today. It is my clear instruction that welders are not on the site because of a lack of pipes and therefore it is not them taking industrial action, if you like, Commissioner, it is the other side.

PN9

Commissioner, we say that there are no special circumstances under section 42(3)(b). With regard to the matters progressing onto other forums, I think we would inherent - certainly Mr Shaw's submission, any application in this place has got potential to go on to other places, it does not mean counsel has automatic right to appear. We say that that submission should simply be ignored. With regard to the public interest and public importance question, that is not, in my submission, something that the Commission ought to take into account when the application is for a section 127 order. The section 127 order is directed specifically at an organisation and at individuals within an organisation. It does not have broader public considerations that need to be taken into account by the Commission. So we oppose counsel with regard to the matter if the Commission pleases.

PN10

THE COMMISSIONER: Well, I will deal with your objections in reverse, Mr Addison. Firstly, the Commission has wide discretion in respect to matters pursuant to section 127 and the Commission as currently constituted takes the view that the public interest is going to be in danger the Commission should recognise that and persons from both ends of the bar table have put those arguments in different veins from time to time before the Commission. Secondly, I do not intend to deal with the application pursuant to section 127 at first instance, I intend to deal with the matter pursuant to section 99 and will treat that as the conciliation phase of the application pursuant to section 127. Because of Mr Shaw's long history of trying to resolve issues in this Commission I will grant leave. Mr Shaw knows that if he steps over the bounds in respect of legalese his appearance will be brief. Leave is granted.

PN11

MR SHAW: Right. While we are on the situation of leave, I was telephoned yesterday by AGL who said they were unable to get a representative down here because of problems with getting seats on aeroplanes and they asked me in fact to formally enter an appearance which I apprehend has to be obviously seeking leave to intervene on their behalf in these proceedings. I have got no submissions to put on their behalf, but - - -

PN12

THE COMMISSIONER: They are the people who own the - who are going to own the gas - the power facility?

PN13

MR SHAW: Yes, Commissioner. I have no submissions to put on their behalf, but they wish to be recorded as being - or wish to be granted leave to intervene in these proceedings.

PN14

THE COMMISSIONER: Yes, well they appeared in the proceedings in another matter about the same sort of issues that involved the same company groups and the AWU, so I will grant leave. Mr Shaw?

PN15

MR SHAW: Commissioner, in light of your statement that you propose to deal with this pursuant to section 99 by way of conciliation I will make my opening submission quite brief. The Commission as presently constituted is, I think, fully aware of the project and the extent of the project as it has been a matter before you involving the CFMEU, I am sorry the AWU, I have got that wrong, the AWU and the position now is with the AMWU that bans have been placed on welding on the site and bans have been placed on a subcontractor, Intico, I-n-t-i-c-o which carries out testing. Yes, non-destructive testing.

PN16

Now, the Company, Mr O'Connell advised at a meeting with the AMWU that the bans were in fact being imposed and whilst it is true that there is no welders on site today, and no attempt to put them on site today, in my view, that does not alter - or in my submission that does not alter the fact that bans have been communicated and are in existence on the site. I think there is no need to say any more if we are raising to go into conference.

PN17

MR ADDISON: Just with regard to that matter, Commissioner, certainly there is an issue between the Company and ourselves with regard to wages and conditions on enterprise bargaining agreement, we do intend to seek to negotiate an enterprise bargaining agreement with the Company. A bargaining period has been served. A bargaining period was served I believe two days ago.

PN18

THE COMMISSIONER: Do you have copies of the documents?

PN19

MR ADDISON: I do not have copies of the documents at this point in time, Commissioner, but I can certainly make those available during the course of the morning, or at worst this afternoon. Bargaining periods have been served on the Company. There is an intention to serve industrial action notices if we cannot reach agreement with the Company and it seems from the discussions we have had to date, that is going to be - there is going to be some difficulty with that. Certainly when Mr Bradley met with the Company, Mr Bradley indicated that if we could not reach agreement bans would be imposed, not bans are imposed, but bans will be imposed.

PN20

THE COMMISSIONER: Can I just stop you there because your foreshadowed notice of action will be of no effect if bans were imposed before the notice period was - had expired.

PN21

MR ADDISON: As I said earlier, Commissioner, there is no industrial action happening currently. There are none threatened, except insofar as it is legitimate to impose industrial action under the terms of the Act and would be exempt for award 27 or any other matter pursuant to award 70NT. Certainly there has been some discussions. Certainly there has been an indication that we do wish to negotiate an agreement. Certainly there has been an indication that if we cannot reach agreement, then we would be forced to fall back on the provisions of the Act to allow us to take protective industrial action.

PN22

We make no apologies for that, that is perfectly legitimate and it is the proper way to go ahead. So I will just in response to Mr Shaw's submission that is all I want to put at this point in time. We are happy to go to conference and see if we can resolve the outstanding issues, if the Commission pleases.

PN23

THE COMMISSIONER: Nothing further Mr Shaw?

PN24

MR SHAW: No, Commissioner, I mean if it becomes a question of evidence then Mr O'Connell is here and give evidence in respect of what he has been told.

PN25

THE COMMISSIONER: Well, if that is needed we can proceed later on with it. I will adjourn to conference.

SHORT ADJOURNMENT [11.45am]

RESUMED [12.10pm]

PN26

THE COMMISSIONER: There has been some discussion among the parties. The Commission has pointed out to the AMWU that even though they have given notice of bargaining and their intention at the end of that bargaining to take protected action, there is nothing in the Act that allows them to take protected action until the statutory period has expired. Accordingly, any bans or limitations they may have on work are contrary to the Act. The AMWU has also indicated to the Commission that it is prepared to try and resolve their issues about an enterprise agreement with the Company as quickly as possible. What have you got to say to that Mr Addison?

PN27

MR ADDISON: I think that fairly accurately describes the situation Commissioner.

PN28

THE COMMISSIONER: Yes. Mr Shaw, conversely makes the point to the Commission that there is no secret that there are green bans in place at the behest of the Trades Hall Council and the Trades Hall Council's affiliates are inveigled in those green bans about the works in question. What the Commission can do about green bans is in the Commission as constituted view is zilch. They are matters to be decided at common law. They are not industrial issues.

PN29

The Commission's concern that those same persons who are actively protesting against a pipeline going through the area it is, some will say it is their right and I do not decry anyone's rights, will be the same persons who complain if there is a heatwave in Victoria over the summer months and their cold water from their refrigerators or their fans in their homes or their air conditioning is not working because of lack of power. They might have to realise they cannot have ten bob each way. Given the nature of those types of protests I doubt if they ever will, however, it is a free country, they are entitled to their own opinion.

PN30

It may be that to bring this matter to a head the relevant ministers of the Government of Victoria may have to make a decision about what they are going to do to ensure it is possible for work to continue in the terms of the contract let by the Government to Abigroup and Others, and that would directly affect the employment of members of the AMWU, the AWU and others as the end result. However, the Commission is not going to sit on its hand in this matter. The Commission orders and directs, pursuant to section 111(1)(t) that negotiations take place quickly about resolving the sticking points in the certified agreement and that while that is taking place, work continue as normal, as normally as is possible.

PN31

That takes into account what may be some occupational health and safety issues because of other persons being on the work site. I think is the best way to describe it. I am sure no employer would expect their persons to work so they endanger themselves or others. That does not mean that should be abused as an excuse for other issues. In respect to the application pursuant to section 127, Mr Shaw, the Commission will hold that application in abeyance. If in fact the issues do not appear to be going to be resolved by Monday of next week the Commission will list the matter on short notice.

PN32

MR SHAW: Thank you, Commissioner, I will keep the Commission informed of what progress is made.

PN33

THE COMMISSIONER: Thank you, have you got anything else to add?

PN34

MR SHAW: No.

PN35

THE COMMISSIONER: Mr Addison, have you anything else to add?

PN36

MR ADDISON: No.

PN37

THE COMMISSIONER: All right, the Commission is adjourned.

ADJOURNED INDEFINITELY [12.15pm]