C2001/5501, Transcript of Proceedings [2001] AIRCTrans 3215 (22 November 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 1129
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2001/5501

HOLDEN LIMITED

and

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

Notification pursuant to section 99 of the Act
of a dispute re contractors at the Holden
Fishermen's Bench site at Port Melbourne

MELBOURNE

11.05 AM, WEDNESDAY, 7 NOVEMBER 2001

Continued from 31.10.01

PN100

THE COMMISSIONER: I see there are no changes in appearances. Initially, Mr Carter, what is the situation in relation to the certified agreement?

PN101

MR CARTER: It is my understanding there was a vote taken on Monday conducted by the AMWU Vehicle Division, and that it was a unanimous vote and acceptance of the proposed enterprise agreement.

PN102

THE COMMISSIONER: I take it, then, that there will be an application forthcoming in relation to the certification of the agreement.

PN103

MR CARTER: Yes, being drafted.

PN104

THE COMMISSIONER: Yes. All right, thank you. Mr Meallin, what is the situation in relation to the - any limitations or bans on work?

PN105

MR MEALLIN: Yes, Commissioner, certainly by way of update from the last hearing held on Wednesday, 31 October, contractors for all intents and purposes worked on the Wednesday afternoon, but were approached by the union and asked to leave the site later that day. On Thursday, 1 November, there were mass meetings of the trades members union officials in the morning and the afternoon.

PN106

A resolution came out of the meeting that employees be back paid for the EBA who had partaken in the industrial action, payment for lost time meetings and a meeting with the company's managing director, Peter Hennenberger. On Friday, 2 November, there were further meetings with stewards and the members with the union officials on the site. Basically, the status at the moment is that the bans are still in place.

PN107

Collex, however, have been exempted and are, in fact, working pretty much as normal. Wagmac is a contractor which, as I think we mentioned on a previous occasion, is a company that has a section 170LK agreement. There is a total ban on their services and they are not doing work on the site, and it is a bit of a mixed bag, Commissioner, with the other contractors where the bans are still in place, but there is a certain degree of leeway being given in regard to critical and emergency work for those contractors to be undertaken.

PN108

I should point out, too, Commissioner, that in regard to the resolution from the trades meetings of Thursday, 1 November, the company was able to arrange and facilitate a meeting for a small group to meet with the managing director, Peter Hennenberger, and that took place that afternoon and Mr Johnston was in attendance at that meeting. If the Commission pleases.

PN109

THE COMMISSIONER: Yes, thank you. Well, in relation to payment for the meetings with Mr Hennenberger, I cannot imagine there would be any problem in having that as a paid time, would there?

PN110

MR MEALLIN: The resolution was not to a paid meeting with Mr Hennenberger. It was actually for the paid stopwork meetings today.

PN111

THE COMMISSIONER: So the meeting with Mr Hennenberger is not included in that.

PN112

MR MEALLIN: No, no, that was just a request that was made, which the company has already been able assist with.

PN113

THE COMMISSIONER: Yes. Mr Johnston, have you got anything to add? And do you have a copy of the resolution that came out of the meetings in relation to payment for time lost?

PN114

MR JOHNSTON: No, Commissioner, I don't have a copy of that.

PN115

THE COMMISSIONER: All right. Does anyone have a copy of that?

PN116

MR JOHNSTON: No, I don't think it was written.

PN117

MR MEALLIN: I have a copy here, Commissioner.

PN118

THE COMMISSIONER: Beg pardon?

PN119

MR JOHNSTON: I don't think it was written.

PN120

MR MEALLIN: Oh, sorry, no, it is not - - -

PN121

MR JOHNSTON: Commissioner, as far as the issue with Collex is, is that it is to be discussed at the national admin tomorrow and the national council in December and we would say that it would not go through on the basis there will be debate in internal forums of the union. But as I said, yes, the Collex issue is a minor one to the overall one. The meeting with Mr Hennenberger was fruitless because basically he backed up what the rest of the people at Holden said.

PN122

They are walking away from the contract works agreement, and so the AMWU along with the other unions that are party to those various contract works agreements are now in dispute with Holden's and they are walking away from agreement we have had for some 20 - about 20 years. And now the dispute is going to spread to other sites because it seems that this same contractor is going to try to do the same thing on other sites now.

PN123

THE COMMISSIONER: Which contractor are you referring to?

PN124

MR JOHNSTON: Collex. So rather than moving forward, we are going backwards, Commissioner, but - - -

PN125

MR CARTER: I have got to object, I have really got to object to Mr Johnston. Mr Johnston is absolutely lying through his teeth on the intentions of Collex. He has been told all through these proceedings that Collex at other sites will negotiate EBAs that are relevant to the sites. And at all other sites that Collex has in the petroleum and other areas that those conditions that have pre-existed have been maintained and Collex does not intend - and has put it in writing to its employees - it does not intend to reduce the rates at other sites on the basis of the Holden agreement. And any comments that Mr Johnston wants to make about the intentions that Collex says otherwise, is a blatant lie.

PN126

MR JOHNSTON: Well, Commissioner, I can get up and call him a liar, too. The reality is that a time and wages check conducted last Thursday by myself and Mr Dean from my organisation found that Collex at Toyota were breaching the current agreement and an offer was made to Mr Coleman, and I think the general manager, that we would have a meeting with them on the Friday morning or some time last Friday to go through. They are $2.05 per day short on the travel going back some 18 months. They are about a couple of dollars - - -

PN127

MR CARTER: Again - - -

PN128

THE COMMISSIONER: Just one at a time, thank you, Mr Carter. I will hear Mr Johnston and I will provide you with an opportunity to respond to him.

PN129

MR JOHNSTON: The rates of pay are not the - at the proper rate. The superannuation is about $15 a week short. The severance has been updated from the last agreement and a number of other allowances have been brought up to the date with the current agreement, but a number of the rates have not. We offered to Mr Coleman at a meeting, as I said, last Friday or this morning and we offered to also meet with him and Mr Murray, who he tells me - because all Mr Coleman can do is say he'll look into it. He cannot make any decisions.

PN130

He tells me Mr Murray is the senior manager. We said we would meet him on the basis of resolving the blatant breaches of the current agreement at Toyota and the ongoing problem at Holden and elsewhere and we are still waiting for a phone call to find if we are going to have that meeting. On that basis they have been ordered from the site at Toyota.

PN131

THE COMMISSIONER: Mr Carter.

PN132

MR CARTER: Yes, well, again, you know, Mr Johnston has a very thin understanding of the truth. What he is talking about is he is comparing the Toyota EBA rates and the Toyota rates are specified in the Toyota Agreement. And it specifies the pay rates and the allowances and they are different to that in the Holden AIG Sub-Contractors Agreement. So what Mr Johnston is saying is, is that - or alleges is that the under-payment arises because the rates are not identical to the rates in the AIG Agreement.

PN133

And what we say is we are paying in accordance with the EBA that was signed off by the AMWU and certified before Senior Deputy President Watson. And, therefore, we say there are no under-payments. People are being paid in accordance with the EBA that applies for Toyota, and if there is a difference in the rates, it is a difference that the AMWU agreed to, signed to and certified.

PN134

In relation to meetings with Collex, meetings were attempted to be arranged on Friday. What Mr Johnston does not say is, is those meetings could not be arranged on Friday because he was too busy down at the Holden site putting on bans and he was also putting bans on the Toyota site and that the parties could not arrange a time because Collex had to have a meeting with Toyota management about the bans that Mr Johnston had imposed.

PN135

We then tried to arrange the meeting that was supposed to be arranged for Wednesday morning was put off because we were informed from Mr Johnston's office the meeting was not available until Friday morning, and Mr Murray has made himself available for a meeting on Friday morning. So the discussions about meetings is that Mr Coleman has told them that Mr Murray is available Friday morning and the parties could not meet until this coming Friday because they were both going away dealing with the issues of disputes that Mr Johnston has created.

PN136

THE COMMISSIONER: Yes. All right. In relation to the direction that I issued on 31 October, I understand from the submissions of the parties that those directions have been complied with insofar as employees of Collex on the Holden site are continuing their work. There are no bans and limitations in relation to Collex.

PN137

MR MEALLIN: That is correct, Commissioner.

PN138

THE COMMISSIONER: So the union has abided by that direction, as has the employees of Holden who were directed not to put bans and limitations in place and to remove the ones that were there. In relation to the extant application, that would seem the extent of the scope of that because that originally came before the Commission in relation to Collex. Now, you have other problems that you talk about in relation to other contractors, but they have not been - they have been the subject of discussion in these proceedings, but they are not the subject of the application themselves.

PN139

What I want to move to now is how we resolve this matter in the long term. I gave you forewarning that I would seek your submissions today in relation to reviewing this issue of the contractors rates. I think it is timely to do so, given we are coming up to the Christmas close-down period and if this issue is not addressed now, then I anticipate from what I have heard from the parties that there will be problems at Christmas time. Mr Meallin, it is Holden's application. Perhaps you could indicate to me what your view is in relation to carrying out some sort of inquiry into this matter of contractors rates.

PN140

MR MEALLIN: Well, Commissioner, certainly Holden welcomed and accepted the recommendation of the Commission, but I suppose put simply it needs to be accepted by the unions, I think, to be a viable process. There certainly has not been any indication by the unions that we can see to date that they would abide by such a process and the bans are still in place which is still likely to harm the business.

PN141

THE COMMISSIONER: Not against Collex.

PN142

MR MEALLIN: Certainly the Collex matter appears to be under control at the moment, but certainly at the time that we made the application, whilst Collex was certainly a focal point, there were other contractors, namely, Wagmac, which also were causing concern and, of course, since this dispute gained momentum it has been expanded to include a whole range of other contractors on our side as well.

PN143

THE COMMISSIONER: Yes.

PN144

MR MEALLIN: I suppose, indeed, the other point too, Commissioner, is I note that in your directions you actually had it effective for seven days, which actually takes it to today. Certainly we would be seeking that those directions be extended beyond today and for the union to comply with those directions. And certainly Holden realises that there are obviously other legal remedies that could be explored in regard to this matter.

PN145

THE COMMISSIONER: Yes. Well, have you had any indication from the union that once the direction expires that there is going to be an imposition, a re-imposition of the bans and limitations?

PN146

MR MEALLIN: Not in regard to Collex, Commissioner, but certainly it would appear to be certainly ongoing for Wagmac and the other contractors on the site at present.

PN147

THE COMMISSIONER: So in fact, that does take away some reasons why I would extend or re-issue the directions in relation to Collex.

PN148

MR CARTER: Yes, certainly it would appear with Collex, but they are now sort of come somewhat out of focus, but the wider problem which I guess Collex was one of the catalysts to begin with, would appear now to be a lesser concern, well, will not be a concern providing that they work as normal on the site.

PN149

THE COMMISSIONER: Yes. Mr Jones, what is the situation in relation to the Vehicle Division with regard to how we might address the contractors issue as I set out in the recommendation.

PN150

MR JONES: Commissioner, in the context of Collex as has been said today, is quite accurate. I mean, we don't have a - - -

PN151

THE COMMISSIONER: I beg your pardon?

PN152

MR JONES: We do not have a dispute with Collex at the moment and, therefore, in the context of the matters that are placed before you for that particular company, we don't have issue. Can I say that it was my intention on looking at the breadth of matters that form the basis of your recommendation to forward written submissions to the Commission on each of those points, which we would do quite expeditiously, I just would emphasis, Commissioner, that on Monday the AMWU, their divisional organiser, Ashley Maine, conducted a meeting a meeting of Collex workers and the agreement itself has been endorsed unanimously. And indeed, we will be prosecuting that matter and we will be forwarding an application to this Commission this afternoon.

PN153

THE COMMISSIONER: Could you advise me what happened in relation to the other seven employees who we had?

PN154

MR JONES: I have not had the opportunity at this stage to deal with that. Organiser Maine has been dealing with it. I know having spoken to Collex that they have been seeking to make employment available within their operation and I do know that Holden have been talking to their contractors about providing employment also. But as to that, Commissioner, the long weekend fell in between.

PN155

THE COMMISSIONER: Yes. Is there anything you would add on that point, Mr Meallin? Mr Carter?

PN156

MR CARTER: Collex has put a three-month ban on external recruitment and all vacancies will be channelled through to Mr Murray who will liaise with Mr Jones to arrange interviews for the seven people to ensure that where appropriate placement is available they will be placed.

PN157

THE COMMISSIONER: All right. Have you had any applications received from those seven people?

PN158

MR CARTER: No. Currently there is no vacancies on site.

PN159

THE COMMISSIONER: Right.

PN160

MR CARTER: And the other point that I do make is where Collex has undertaken that where people are initially placed they will have an option to transfer back to the Holden site in the future if they so wish.

PN161

THE COMMISSIONER: Yes.

PN162

MR CARTER: Or they can elect to stay to the site that they are placed at.

PN163

THE COMMISSIONER: On the last occasion it seemed that there may be some positions available at the Crown site. Has anything come of those?

PN164

MR CARTER: That is an area where we are likely to start placing people because the nature of the work is similar, but at the moment there are no vacancies on the Crown site. But as I said, we will just keep on processing the positions with Mr Jones as they come available.

PN165

THE COMMISSIONER: But I want to be satisfied that those people - that you know how to contact them, or they know when to contact you - - -

PN166

MR CARTER: Yes, we - - -

PN167

THE COMMISSIONER: - - - in relation to applications.

PN168

MR CARTER: Yes, we do have their names and addresses and we have - - -

PN169

THE COMMISSIONER: So are you giving me an undertaking that you will pursue that matter?

PN170

MR CARTER: Yes. We have actually written to you last week, Commissioner, and outlining that position and Collex stands by that correspondence.

PN171

THE COMMISSIONER: Yes. I think it would be an idea to mark that so that it does become a - does come on record, and I am going to mark that letter as exhibit C1.

EXHIBIT #C1 LETTER FROM COLLEX

PN172

THE COMMISSIONER: Yes. Thank you for your attention to that, Mr Carter. Mr Johnston, what is the view of the Metals Division in relation to conducting an inquiry into the contractors rates?

PN173

MR JOHNSTON: Commissioner, I am not here representing the Metals Division. I am here representing the Victorian Branch. As I pointed out to you before, I am actually the State Secretary, not the Metals Secretary, despite a lot of people trying to stop me from being that. The position is - - -

PN174

THE COMMISSIONER: No. Well, I accept your position.

PN175

MR JOHNSTON: Yes. Well, I just want to make - that I represent the branch, right, the whole branch.

PN176

THE COMMISSIONER: Yes.

PN177

MR JOHNSTON: And I would suggest that there will be debate yet whether that agreement, that is the terms that Collex Holden proposed agreement, is going to be authorised by the AMWU. Firstly, Commissioner, we do not see that there needs to be an inquiry by the Commission. We have an agreement in place and we are still waiting to find out - and you have asked Holden and they have not responded to you - what their view is.

PN178

Have they - do they accept they have walked away from the agreement, because as far as we concerned - and if they have walked away from the agreement, then they obviously accept that there will be an ongoing dispute, because it does not just involve the AMWU, it involves the CFMEU, the FEDFA in that agreement and potentially the ETU and the Plumbers in their respective agreements.

PN179

The second issue, Commissioner, I want to raise about these seven people that were terminated. I sat back here after the last hearing and all Collex have agreed to do is when they have got a vacancy they will interview the people and then if the people are suitable they will give them a job. So there is no commitment to any job. There is not even a commitment to an interview. They are saying if they get a suitable vacancy, as they put it, they will give them an interview. None of those people have been interviewed, and I would suggest that none of them are going to be interviewed.

PN180

So the way we see it is, that this dispute is just getting bigger and bigger and is going to spread, Commissioner. So we don't see that an inquiry is going to help, but we see either Holden either accept and put to us in writing that they will abide by the Vehicle Maintenance - Vehicle Manufacturers Contract Works Agreement at Holden and if they don't, then they have got their remedies and we have got ours.

PN181

THE COMMISSIONER: Yes. Mr Johnston, is there any concession from the union that there are two types of contractors that we are talking about? One are contractors who would come in for project work and for maintenance work associated with close-down at Christmas time. And the others who would be employed at the same site under a contract agreement, under an agreement for work that is contracted out by the car companies, are there two different types of work?

PN182

MR JOHNSTON: Well, Commissioner, in the agreement that I handed up to you some weeks ago, there is about four different types of work. So we can see there is contract work, there is service work, there is supplementary labour and there is construction work. This agreement covers contract work. It covers supplementary labour, that is, not - that goes more than two weeks, and it also under the service area it covers any work that is covered by the award. Right, that is not, if you like:

PN183

... minor, routine, repair service and adjustment ...(reads)... install plant and equipment.

PN184

So there is a whole range of types of work, but this agreement covers it all, except, as I say, the exclusions. And the exclusions are, as I say, construction, there is currently construction project at the moment at Toyota which is a specific site agreement has been done for. Supplementary labour, that is where for a period of two weeks where an employee of Holden's goes off on leave for two weeks or up to two weeks on long service, Workcover, annual leave, etcetera, and a contract or a person working for a contracting company fills their place for two weeks.

PN185

Any more than two weeks reverts to this and the service work. And so we think there is a number of them, but we say they all have a genesis back to this agreement and all those contractors, including Collex, or up until recently anyway, because they will not be working there much longer, including Collex have abided by this agreement at both the Holden and the Toyota sites. So we don't see - - -

PN186

THE COMMISSIONER: What do you mean, they won't be working where much longer?

PN187

MR JOHNSTON: Well, we are in dispute with Toyota now, they are breaking our bans. So I am sure they will be notifying that one soon too. So - - -

PN188

THE COMMISSIONER: Well, let us go back to the question I asked. Where people are employed for every day of the year - - -

PN189

MR JOHNSTON: Yes.

PN190

THE COMMISSIONER: - - - at Holden - - -

PN191

MR JOHNSTON: Yes.

PN192

THE COMMISSIONER: - - - do you say that they fall within the rates and conditions of the contractors agreement?

PN193

MR JOHNSTON: Oh, quite clearly, Commissioner. I can give you a number of examples of companies that are down there all year round every year, you know, that are down there and fall under this agreement. Many companies are there four days a week, five days, 52 weeks - or not 52 weeks, 48 weeks of the year, a number of companies work there all the time and are under that agreement. The same at Toyota, the same at Ford, there are contractors that are there are basically permanent, permanently on that site and fall under this agreement.

PN194

Wagmac, for instance, which I don't think anyone at this end of the table disagrees with, when the work was contracted out came under this agreement and paid the right rates. And then what happened was they slipped under the net by doing an LK agreement and sought to get out of it. They are there permanently.

PN195

THE COMMISSIONER: But isn't the problem that you have that you have employees who are covered within a certified agreement the terms of which are being followed by the parties bound by the agreement, by the employees and by the employer and that the certified agreement take precedence over any other industrial instrument?

PN196

MR JOHNSTON: Well, who are you talking about, Commissioner? Which - - -

PN197

THE COMMISSIONER: Well, for example, at Collex at Toyota.

PN198

MR JOHNSTON: Well, I am happy to dispute that, because the Collex Certified Agreement refers to the contract works agreement.

PN199

THE COMMISSIONER: All right.

PN200

MR JOHNSTON: And it says the better conditions will apply. Right. There are no wage rates in the Collex Agreement. Right.

PN201

THE COMMISSIONER: All right. What about in relation to the Collex Agreement which has just been reached at Holden?

PN202

MR JOHNSTON: Well, we are still disputing that, Commissioner, so it is yet to be - and it may be a problem for us in the future, but it isn't at the moment, right, because it is yet to be - the issue at the moment.

PN203

THE COMMISSIONER: So in fact, the issue for you is whether the union is a party bound to that agreement.

PN204

MR JOHNSTON: No, no, the issue for us is whether Holden's are going to maintain that all contractors will - will they recommend to all contractors that this agreement applies, as they have for the last 20 years. That they will send a letter and says there is a contract works that are in place, we suggest you talk to the AIG to understand the wages and conditions in it. That is the dispute. The issue of Collex that we have focussed a hell of lot of time on, Commissioner, with respect, is a side issue, right, because they are one company out of 130, 140 companies.

PN205

The issue for us is that we have had an agreement in place for 20 years with Holden, at Toyota, it used to be at Nissan and at Ford's that says, contract work, work done at the rates and that this will apply will be set out in this agreement. And Holden have sought to walk away from it. That is the dispute. That is the guts of the dispute. That is where we go back when it was first brought before Deputy President Watson when Wagmac were thrown off the job and Deputy President Watson said to Holden - or sorry, Holden, where he said to them, this is an issue for Holden to take up.

PN206

And Holden have continued to walk away from it. They sent us that letter saying that they are no longer going to - they are going to say everyone can do whatever they want, which is a - you know, talking about blatant lies, because they tell contractors what to pay, they don't tell them - they say this is what we're prepared to quote, whether you quote, that's what we're prepared to pay you.

PN207

So obviously that means that you can either pay these rates or you can't, because let's say, if a contractor is getting $30 an hour as a price for their labour and this adds up to $35 an hour, well, no contractor is going to pay this if it means they are going to lose $5 an hour on every person. I mean, that is common sense. If they are paying $40 an hour - and I am just quoting these figures, you know, as examples - then obviously they will pay that agreement because that allows them to pay that agreement.

PN208

And that is what the guts of the whole dispute is about, Commissioner. And we still, as I say, I have got that letter, we are still seeking from Holden, as I said, we went and met Mr Hennenberger on Friday without him specifically spelling it out it was quite clear to us that he was backing up the IR Department, the position that they are walking away from the contract works agreement. So if that is the case, the dispute gets bigger not smaller.

PN209

THE COMMISSIONER: Yes, I understand that, and that is why I have addressed those issues in paragraph 16 of my recommendation and direction of 31 October.

PN210

MR JOHNSTON: Yes.

PN211

THE COMMISSIONER: Because I don't want to see the dispute get bigger. I am aware of the potential of it and I have powers under the Act whereby I can do something about it with or without the agreement of the parties.

PN212

MR JOHNSTON: Yes.

PN213

THE COMMISSIONER: Now, I can't in all consciousness sit here, knowing the industry and their difficulties that are currently occurring, and ignore that there are going to be further possibilities of shutdown and bans and limitations and withdrawal of labour.

PN214

MR JOHNSTON: Well, then shouldn't you be asking - and I know you did ask them before, but they did not give an answer, they gave some longwinded thing about what the unions are doing - we want to know are they - is their position as was detailed in the letter from - Wiseman on I think it was 23 October that I put up before this Commission, if I can find it, I have got so much paperwork from Holden's now - - -

PN215

THE COMMISSIONER: Yes, well, I understand that it is the company's position.

PN216

MR JOHNSTON: Well, if that is their position, Commissioner, then our position is the bans stay on and it will escalate it and they do what they want. We are not going to have a company walking away from an agreement that we have had for 20 years and seeing our members take massive pay cuts. No union is going to do that.

PN217

THE COMMISSIONER: No. No, you have not had this agreement for 20 years. You have had various unregistered agreements for a period of almost 20 years. The current agreement is a three-year agreement from 2001 to 2003.

PN218

MR JOHNSTON: That is right, two thousand - yes.

PN219

THE COMMISSIONER: Now, it seems to me that the agreement is not being followed in - by many companies across many industries, including this one, because from your own drawing my attention to schedule A you have pointed out there are a number of companies who have signed to it, but there are hundreds more who have not.

PN220

MR JOHNSTON: But they are paying it. See, this - - -

PN221

THE COMMISSIONER: Well, they may be, but what you are relying on is an unregistered agreement where, in fact, under the Act certified agreements, agreements that are registered, will have precedence over that agreement or over any other understandings.

PN222

MR JOHNSTON: That is right, Commissioner.

PN223

THE COMMISSIONER: And technically and legally that is the position.

PN224

MR JOHNSTON: All right. But Commissioner, if we are talking about technically and legally, that might all go very well here. Out on the shop floor is the industrial reality and there are hundreds of companies that will come in - this is not - this schedule A is not by us, it is by the AIG, and they pay the rates and they proved to us they would pay the rates. We never asked them to sign this. This is the AIG asking them to sign this, right.

PN225

We negotiate the agreement, right, and because there is an industrial alley out there where people actually accept a hand shake agreement, yes, we've agreed to pay the rates, they get it back off the client because that is the bottom line. That is why it is called the Holden Agreement, the Toyota Agreement, because the client pays the bill, not the AIG, not the contractor, the client pays the bill.

PN226

And they send letters to them saying you should pay or you should go to the AIG so you know what these agreements are. Just like they say on electrical, you should talk to NECA. Now, you are right legally and technically and all that, but that does not mean much out on the job on a shutdown because when an agreement - and members have known that this agreement - and I accept it is 2000 and 2003 - it has been an arrangement in place for some 20 years.

PN227

It has worked very well for not only the unions, but for the companies to avoid the sort of disputation that we have when we did not have an agreement, because there was one Christmas where the companies did not want to renegotiate it and there was a hell of a lot of industrial strife in about 1994, 1995, somewhere around there, so it has worked well for both parties. If they are now saying they are walking away from it, well, fine, we will just have to wait until the appropriate time and I am sure we will change their minds, Commissioner.

PN228

But, you know, I would have thought if we want to progress this dispute, it would be up to Holden to come back and say they are prepared to accept that they do abide by that agreement.

[11.35am]

PN229

THE COMMISSIONER: Yes. With respect to the history, leaving aside the technical precedents which may be given to one industrial agreement over another, I accept what you say in relation to this matter being one for Holden. The Collex issue, as far as I am concerned, is virtually resolved. That was the subject of the application that was before the Commission.

PN230

My own view, having spent considerable time in the vehicle industry, is that the catch-all provisions of the contractors' agreement, given that there are other agreements in place which take precedence over it, would indicate that there are arguments that could show that there are two types of contractors. One are the ongoing contractors virtually on a day to day basis who are always at one site; the other one would be those who use Christmas close-down, special projects, etcetera. Now, I know that won't be a very popular view, but it seems to me that is bordering on reality; it is reality. So that is a matter - - -

PN231

MR JOHNSTON: Commissioner, sorry, I have got to take you up on that issue, it is not reality at all because the reality in this agreement says to prove why there is a difference between work during the year and the Christmas shut is because there is a payment made for the shutdown work. And if I just take you to the clause - if I can just find it here - clause 8, Rates of Pay:

PN232

A site allowance of $2 per hour for all purpose for ..... will be paid for the commission of the annual leave close-down. This payment will only apply during annual leave close-down periods which will be for a maximum four weeks in each year.

PN233

So it quite clearly distinguishes between the Christmas type shutdown arrangement and ongoing work during the year because it pays that allowance for that period of time, so that agreement - each of the agreements, because they are all the same, actually distinguish that - that is in clause 8 of the agreement - to prove that there is a difference between the type of work that you do. Well, it is not necessarily the type of work, but the type of disability that you have to put up with because it is Christmas time and all the rest of it and the heat and the dirt and all the rest of it that goes on at Christmas, that is why they pay the site allowance, and that is only paid for four weeks of the year. So on that basis I just can't agree with you that there are two different types because, as I say, it is spelled out there.

PN234

THE COMMISSIONER: What about in relation to the application of travel allowance?

PN235

MR JOHNSTON: Travel allowance, Commissioner, and this is paid all year round.

PN236

THE COMMISSIONER: Even though you work on the same site day in, day out?

PN237

MR JOHNSTON: Commissioner, I could bring in here hundreds and hundreds of agreements where that happens. The Shell refinery where the contractors have worked there for the last 30 years, and at World Services, Saba, Danham United, Transfield, Danham Engineering, you could go on and on. They are permanent on the Shell site and get travel. The same happens in labour hire where Skilled, for instance, have what they call a contract maintenance crew, down at Boral, down at Kraft, down at Piltners in Geelong, Godfrey Hirst, are permanent on the site and get travel permanently everyday. Out at Alcoa the same thing; it goes on and on and on. As I say, BHP; if you want, I could bring you - it would take me some time - hundreds and hundreds of companies that have permanent crews on a site that are there, and because they are contractors, because there is the opportunity that the company could move them at some stage - never do move them because there would be too much of a dispute about moving them - people are there for five, 10, 20 years and they get travel permanently because it is the nature of the industry. So I don't accept that either, Commissioner.

PN238

THE COMMISSIONER: I am not going like a real winner this morning, am I?

PN239

MR JOHNSTON: Well, maybe if you actually talk to some of the Commissioners that have dealt with some of these things, they would be able to tell you. Like, Commissioner Tolley and Commissioner Cribb have a lot of experience with all the problems at Shell - - -

PN240

THE COMMISSIONER: Yes, thank you for that advice, Mr Johnston, but I have my own commission and I will operate it according to my good conscience and equity. Mr Meallin, you have a problem. It is up to the company how it deals with it. The union has made quite clear what the situation is. The subject matter of this dispute which you have brought before the Commission has been resolved. The certified agreement, as you have heard, will be lodged at some time. We may deal with some particular opposition to it at that time, but the extant application has been resolved.

PN241

MR MEALLIN: Well, Commissioner, if I just may make a point, and in fact it may be a point that I in fact actually agree with Mr Johnston on is - - -

PN242

THE COMMISSIONER: Well, we had better make sure this goes down on transcript.

PN243

MR MEALLIN: - - - that, look, Collex actually has been a side issue in this broader matter, and Mr Johnston has pointed out that it is the general application of does this unregistered agreement apply on the Holden site in terms of it being enforceable and the company's longstanding agreement to have it enforced? The company would maintain again that nothing has changed. We have not walked away from any agreement. We still do what we have always done and that is that we make prospective contractors and contractors aware, if they don't know about it already, that these agreements exist, but nothing more and nothing less, and indeed we certainly encourage and support the employer associations and the unions to make agreements that are appropriate in the interests of harmonious employee relations which, as Mr Johnston has also pointed out, ultimately affects us as the end customer.

PN244

Commissioner, can I just make a point though with the original section 99 and that was that we lodged it on the basis that it was concerning claims against Holden Limited in relation to contractors working in the Holden's Fishermens Bend site, Port Melbourne, and contractors, being plural, in that - true, Collex was a focal point at the time that we first came before you in the hearing, but certainly lodged on the basis that we knew that there was a problem in regards to contractors generally which indeed is what has been the case. If the Commission pleases.

PN245

THE COMMISSIONER: Yes, all right. I want to go off transcript for a moment.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 LETTER FROM COLLEX PN172