C2001/6208, Transcript of Proceedings [2001] AIRCTrans 3568 (19 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2001/6208

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

SHERRIN HIRE PTY LIMITED

Application under section 127(2) of
the Act to stop or prevent industrial
action re alleged dispute over the hiring
of casuals and the procedures set out in
clause 9.4 of the Mobile Crane Hiring
Award 1996

SYDNEY

2.07 PM, TUESDAY, 4 DECEMBER 2001

PN1

THE COMMISSIONER: May I have the appearances, please?

PN2

MR S. MARSHALL: If the Commission pleases, I appear for the CFMEU, New South Wales branch, and appearing with me is MR D. KELLY, one of our organisers.

PN3

MR C. DELANEY: If the Commission pleases, I am an agent appearing on behalf of Sherrin Hire.

PN4

THE COMMISSIONER: Thank you. Mr Marshall.

PN5

MR MARSHALL: Commissioner, this application comes before you subsequent to a section 99 hearing that happened between this company and the CFMEU back at the end of October before Commissioner Lawson.

PN6

THE COMMISSIONER: I have that file too.

PN7

MR MARSHALL: I have been unable to locate the transcript but principally of importance, I am informed by Dave Kelly that Russell Cunningham, who is the person at the centre of this dispute, would be treated fairly by the company. What has happened is that he has been working for Sherrin since April 2001; up until the middle of September he had worked for them for about 21 weeks and he was working on average 40 hours a week.

PN8

At that time an incident took place between 12 and 14 September whereby Russell Cunningham refused to drive what he deemed to be a dangerous truck. He had had previous experience with another employer where he had refused to drive a truck and the replacement driver had gone out and had an horrific accident, so he had pretty good reasons for being concerned. Around about this time he started getting active on safety issues. Our organiser Dave Kelly came in, he became involved, Mr Cunningham was elected union delegate on 16 September and in the last weeks to date, in the records that I have, he has worked an average of 14½ hours a week.

PN9

The first issue is that under the Mobil Crane Hiring Award which Sherrin is respondent to there is a four week maximum for the use of casuals and having 21 weeks employment on an average of 40 hours is clearly in breach of the award and we would say that being held as a casual by the company in this circumstance is industrial action. What I might do, Commissioner, just to let you know how employment used to work at this company, the old allocator whose name is Barry Duggan wrote a memo to our member Russell Cunningham outlining how the work was allocated. I would just like to read that out for your information. I have copies to hand up if you wish as an exhibit.

PN10

THE COMMISSIONER: Thank you.

PN11

MR MARSHALL: But as I said I will read it out for your information. It goes:

PN12

Whilst employed as fleet controller at Sherrin Hire ...(reads)... Graham and yourself were offered work.

PN13

I am informed by Mr Kelly that the company has subsequently taken on more casuals and as a result of this, particularly Mr Cunningham has been severely disadvantaged in the amount of work that he is receiving. As I said, he himself has kept pay records.

PN14

THE COMMISSIONER: I will mark that first document that you have just read from as exhibit CFMEU1.

EXHIBIT #CFMEU1 MEMO FROM B.DUGGAN TO R.CUNNINGHAM

PN15

MR DELANEY: Sorry, Commissioner, I would object to that. This is not an affidavit. This person is not a member of the company currently. We don't know that this is necessarily his document; he's not here to speak to it.

PN16

THE COMMISSIONER: Well, I'll note that and I'll weight that accordingly if necessary, but, just for identification purposes, I'll let it in as CFMEU1.

PN17

MR MARSHALL: Thank you.

PN18

MR MARSHALL: Now, Mr Cunningham himself has also totted up his pay record whilst he has been working at Sherrin Hire and has provided a summary of those. Mr Kelly has been trying to get access to the time and wages record of the company and has been unsuccessful in being able to take copies of those records. That just gives backing to my point about his average hours over the first 21 weeks.

PN19

I'll just finish off my opening statement, before I hand over to Mr Kelly for the details, by reading from an email he sent to my supervisor recently. He said:

PN20

When I started working for Sherrin Hire ...(reads)... treatment I have received.

PN21

He goes on to say that he has a family to support and he's having great difficulty in meeting his financial commitments and he says he's been surviving for the last four weeks on food parcels from friends. He finishes off by saying:

PN22

The pressure is on me to go and get another job ...(reads)... to work in a safe environment.

PN23

Unfortunately Mr Cunningham was unable to be here today and he;s managed to pick up a day;s casual work for another employer - as I said, he's in fairly desperate financial straits at the moment and, given the lack of attendance by a decision-maker from the company, it's probably best that he is getting a day's wages rather than being here.

PN24

So what we're in effect asking you to do is to make an order to cease the illegal industrial action that the company is currently undertaking in refusing to acknowledge the rights of this worker as a permanent as, clearly under the award, clause 9.4, he satisfies the qualification to be a permanent employee; and that he be taken on as a permanent employee and that the company stop discriminating against him for being a union delegate.

PN25

That's the essence of the submission, Commissioner. If you have questions and you want more detail about the situation, Mr Kelly would probably be able to assist.

PN26

THE COMMISSIONER: I think I've got the gist of it. I might hear the general position of the company through Mr Delaney first before I hear from Mr Kelly in more detail. Yes, Mr Delaney?

PN27

MR DELANEY: Commissioner, firstly, I must apologise. I was given this matter about an hour ago, about 12.30, to roughly an hour and a half ago. I have precious little information. The people that I needed to talk to in the company haven't been available for me to do that and I really come here seeking to have this matter stood over to another day to allow the company to talk directly with Mr Kelly. I will try to arrange that personally.

PN28

In terms of the information that's been provided and the information that my friends have here, I've not seen that. I've not seen any documents form the company to support or reject what they say. I do have an understanding of how Sherrin Hire work in the ordinary course of events and I suspect that it's not too different from what's been described today although I have no detail; I can't provide it either way.

PN29

I think, from the union's perspective, they have information here that allegedly comes from one of the employees. I've been told that full access was given to company documents. That seems to be different from what the union has mentioned today. I think, in the circumstances, if this were to be a proper hearing we would need witnesses, we would need all of the information to support or otherwise the company's position. We've not had time to do that. I certainly haven't had time and the indication was that this matter was brought on for hearing with advice yesterday.

PN30

I would seek that the matter be stood over to a date to be fixed and agreed between us and hopefully it should be resolved in the interim period but, if not, then to be brought back on again. What I can do is perhaps to give an undertaking to the union that I would speak to the company to ensure that whenever possible - and I'll explain why I say "wherever possible" in a moment - this gentleman, Mr Cunningham, and the other applicant in this matter, be provided with as much work as is available, given the nature of the business, in the interim period.

PN31

I say "wherever possible" because this is a client demand driven business. There is some planning available to the company as to the allocation of work but they can come to work in the morning and find that a client has rung up with a plant breakdown and they need more or less people than they had before. So we don't know, in a period like Christmas, for instance, how much work is going to be necessary. So I'm saying that these two people should get preference of work as casuals in that period of time but we couldn't guarantee all of the types of hours that the union are seeking right at the moment.

PN32

THE COMMISSIONER: All right. What do you say about that?

PN33

MR KELLY: If I might add something - and I don't want to dwell on it too much - we've always maintained a fairly hostile relationship, that is, the union and Sherrin Hire, where the issue of casualisation in the industry has come up time and time again. I have been approached by workers on several occasions asking how come they're not regarded as full-time employees given the amount of hours. For this and other reasons, including safety, I addressed the workers and sought to have the problem fixed.

PN34

The matter is of great contention between the union and the company. We think that the records provided by the union members showing the amount of hours clearly demonstrate that a common-sense attitude should be taken by the company in recognising that this worker in particular and another worker are full-time employees.

PN35

We believe, in terms of seeking the records, that the first time the company didn't provide all the records. The second time, upon request, the company provided other records but then, to a request to sit down and resolve issues, we were told to put the matter in writing - in other words, indicating to us they weren't going to deal with the matter in a common-sense way.

PN36

Now, it's our view, given the contentious issue of the casualisation and also the safety breaches, that if there is severe industrial action being taken against our member, Russell Cunningham, and we don't ask any more than that they be made to cease this industrial action against our member. It's coming up to Christmas. He's in desperate need of work and I think that the company, even though they're not properly represented here, should be made to put our member back on the same regime of work as he worked previously; that is, there was a policy that he be used before other people were given work.

PN37

Currently he's being sitting at home while there are people with full-time jobs driving trucks. We've got people who have retired from the industry being given the opportunity to drive trucks while he's sitting at home. It's an outrageous move by the company. We ask not that there be some consideration given but that he be given all the proper work that's available, not for him to sit at home while there's a retired worker driving a truck. So that's our position.

PN38

To sum up, we would ask that the Commission order the company to put this worker on for the same priorities, for the same pattern of employment, as prior to our dispute. In the meantime we be required to sit down to talk about the award breaches found, to talk about the proper transition of these workers to be recognised as permanent workers.

PN39

THE COMMISSIONER: I have very strong doubts whether I have the ability or the jurisdiction to order the company to do what you're asking me to do, if only on the basis of the material that is before me at the moment. To issue 127 orders - I usually say this to employers - is a serious matter and not to be taken lightly. A substantial case has got to be made before the Commission can exercise that jurisdiction.

PN40

So I'm not in a position to do that today and I will hear further argument if the union wishes to pursue the matter but it would have to be submissions on the basis of evidence and also going to the question of the definition of "industrial action" for section 127.

PN41

Having said that, I would also say to the company, through Mr Delaney, that the allegations that have been raised are very serious allegations and you would be aware that it's unlawful to discriminate against an employee because he or she may take on the responsibility or the task of being a union delegate. There are provisions in the Act to prevent discrimination and there are penalties in the Act if discrimination takes place. So I'm not saying that the case has been proven but the allegations are certainly very serious and I would be keen to hear further evidence and argument

PN42

in support of the union's allegations.

PN43

I received a phone call earlier today from Mr Depanovic asking that he matter be adjourned but I had to say to him that he was the respondent in the matter and not the applicant and he should talk to the union. The fact that we're here obviously means there was no agreement about adjourning but I'm not sure how far we can go today, given the material that is before me and given Mr Delaney's limited amount of instructions. Perhaps I might adjourn into private conference and see if we can explore some options that way. There's no objection?

PN44

MR DELANEY: No.

PN45

MR KELLY: No objection.

PN46

THE COMMISSIONER: I'll adjourn into conference.

SHORT ADJOURNMENT [2.25pm]

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 MEMO FROM B.DUGGAN TO R.CUNNINGHAM PN15