C2001/1430, Transcript of Proceedings [2001] AIRCTrans 548 (10 April 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 6547

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/1430

McCONNELL DOWELL CONSTRUCTORS PTY LTD

AND

THE AUSTRALIAN WORKERS' UNION

NOTIFICATION PURSUANT TO SECTION 99 OF THE ACT
OF A DISPUTE RE A CLAIMED INCREASE IN THE
DEMOLITION ALLOWANCE AS IT RELATES TO THE
SITE ALLOWANCE AT WEBB DOCK

MELBOURNE

12.10 PM, MONDAY, 26 MARCH 2001

PN1

MR J. FRITH: I am representing McConnell Dowell, Commissioner.

PN2

MR R. GRAY: I appear on behalf of the Australian Workers' Union along with MR G. HASTIE.

PN3

THE COMMISSIONER: Yes, Mr Frith.

PN4

MR FRITH: I am not fully briefed on the matter, I am afraid, Commissioner, I am waiting for Mr Kelly to attend.

PN5

THE COMMISSIONER: Where is Mr Kelly, Mr Frith?

PN6

MR FRITH: He is in transit.

PN7

THE COMMISSIONER: In transit, is he?

PN8

MR FRITH: Yes.

PN9

THE COMMISSIONER: This is not a self-service shop or the 7 Eleven. People don't drop in here whenever they like. This matter is adjourned until 5 o'clock this evening. And if he is not here then it will be six weeks.

SHORT ADJOURNMENT [12.12pm]

RESUMED [5.02pm]

PN10

THE COMMISSIONER: I will take the appearances.

PN11

MR R. KELLY: I appear for McConnell Dowell with MR J. FRITH, Commissioner.

PN12

THE COMMISSIONER: Have you an authority to appear, Mr Kelly?

PN13

MR KELLY: I do, actually, Commissioner, yes.

PN14

THE COMMISSIONER: Thank you.

PN15

MR R. GRAY: You don't require me to make another appearance, do you, Mr Commissioner?

PN16

THE COMMISSIONER: I haven't asked yet. Yes. I will mark this as A1 as an exhibit for the record, Mr Kelly. And it will be my policy in future to ask all employer representatives to tender an authority to appear, because I am concerned about companies not carrying out decisions or requested recommendations of this Commission. I have got more work to do than to pander to the egos of company directors. Sit down.

EXHIBIT #A1 AUTHORITY FOR MR KELLY TO APPEAR

PN17

THE COMMISSIONER: Yes.

PN18

MR GRAY: Do you need me to appear again?

PN19

THE COMMISSIONER: Yes.

PN20

MR GRAY: I appear on behalf of the Australian Workers Union.

PN21

THE COMMISSIONER: Where is Mr Hastie?

PN22

MR GRAY: Unfortunately, he had an appointment to do with his marital problems and they just couldn't put it off.

PN23

THE COMMISSIONER: I don't want to - a private problem, get stuck into that. It is your notification, Mr Kelly.

PN24

MR KELLY: Commissioner, may I just say I would like to put it on the record that I sincerely apologise for my inability to appear today at the prescribed time. I am deeply embarrassed by it, Commissioner, and I will make every effort to ensure that it doesn't happen again.

PN25

THE COMMISSIONER: Your apology is accepted, Mr Kelly.

PN26

MR KELLY: Commissioner, basically as the notification states we had originally three issues which were given to us by Mr Hastie at Webb Dock, one being a claimed increase for the demolition allowance as it relates to the site-specific agreement for Webb Dock. The second was a matter of a transfer or a carryover of applicable rates, Commissioner, and Mr Gray will no doubt articulate the position, but as we understand it, the claim put to us was that if employees at the Webb Dock site were required at any given time to work at the Silos Site in Lorimer Street, not only should they receive the higher rate applicable to work performed at the silos, but that upon their return to the Webb Dock project they would continue to hold and receive the rate that they have received at the Port Melbourne silos project at the MCF.

PN27

THE COMMISSIONER: Who put that claim?

PN28

MR KELLY: The AWU, Commissioner.

PN29

THE COMMISSIONER: Yes, go on.

PN30

MR KELLY: The third is a matter of - with the demolition work at Webb Dock it was put, a claim was put that certain of the underpinning - I suppose it is a sort of a structural steel formwork for the completion of the works on - I suppose on an outrigger, that they would be regarded as demolition work, but I do understand, Commissioner, that that matter may have been resolved. However, I am not fully informed of the matter of that resolution, because I understand that something had been done today, so if the Commission pleases, I would propose to proceed with items one and two of the notification at this point in time.

PN31

THE COMMISSIONER: Yes, thank you. Mr Gray.

PN32

MR GRAY: Commissioner, in times of point three, my understanding is that it has been resolved locally, too. The other two items, if I could just break them into two areas and bring you up to speed in the claim for the increase so to speak in the demolition allowance, if I can just run you through what - the demolition allowance comes from the demolition agreements, and if McConnell Dowell had brought in demolition workers to do that rate they would have worked out within their agreement that $4 an hour demolition allowance in relation to the site allowance. For argument's sake - - -

PN33

THE COMMISSIONER: The Commission is aware that there is a demolition allowance for all purposes demolition throughout the industry, both civil and building construction.

PN34

MR GRAY: Similar to the Mobile Crane Agreement where workers don't go up and down on their rates throughout their sites because a mobile crane might be working on four sites during the day, in terms a demolition worker may be working on three different sites within a month.

PN35

THE COMMISSIONER: Yes, the $4 applies equally.

PN36

MR GRAY: $4. And that also applies in relation to small jobs which don't get a site allowance, the same as the mobile crane. Now, there is an agreed policy with the demolition companies that when they get on to a site that has a site allowance of around $3 to $4 there is an increase over an average of their wages for that month on that $4 site allowance equivalent to the same as the mobile height. Now, I have got - - -

PN37

THE COMMISSIONER: When did that wonderful agreement come in, Mr - because there is a matter before Senior Deputy Presidents, Commissioner - and there is also a matter before this Commissioner last year about demolition allowances.

PN38

MR GRAY: Well, if you take that demolition allowance, we are not demolition workers, and when we applied the agreement of the $4 to the rate if the Commissioner will remember, the site agreement for this site was $1.70. Therefore, that extra task that our members were taking in terms of the demolition where the site allowance is absorbed into the demolition allowance gave them a $2.30 increase, and for the danger and the skill that is involved, and I hate to say that word "danger", but the extra caution you have to take in terms of health and safety, we thought that 2.30 was all right, so we never - because this company is not a demolition company where we can - where we pick up the $4 at the bad times.

PN39

This is a company that decided to do the demolition work on this particular site. If we had had the 2.70 prior to the MBA moving the guidelines on the site allowance prior to the start of this site we would have said to you, said to the Commission, we are in negotiations with the company, but that $4 is an increase of $1.70 for taking on the care of health and safety when doing the demolition work and also the skills and the hazards accompanied with that. So, therefore, we would have probably stretched that site allowance out, because these people aren't demolition workers that get that $4 regardless of a $2 site, $1 site or no site allowance.

PN40

THE COMMISSIONER: But, Mr Gray, there are other workers in other sections of the industry, not just the civil engineering, who work in concert with or assist persons on demolition, and in that case they receive the $4 demolition allowance; they don't receive the $2.70 site allowance plus $4 demolition allowance.

PN41

MR GRAY: I am not asking for the $2.70. I am just saying that - - -

PN42

THE COMMISSIONER: No, you are asking for - - -

PN43

MR GRAY: For a buck.

PN44

THE COMMISSIONER: You are asking for a buck. Well, on what grounds? There are no grounds.

PN45

MR GRAY: Well, I just want to put, if there had been a demolition company on that site, these people would have picked up the gravy on the swings and roundabouts, because they go from site to site and they pick up $4 when they are on a job that is less than 1.8 million, they pick up $4, and I believe at the top end of the scale there is an allowance for that. Now, my argument is that we would have asked, if that dollar had been there and it wasn't our fault, nor the company's fault, that that boundary line was moved, that the Commission took on board that there was a need to move that site allowance by a buck because of the boundaries moving, no fault of any one of the parties, I am saying that we are disadvantaged now because we would have put a better argument to increase that disability allowance maybe to $5 because of this ability for working on the demolition.

PN46

THE COMMISSIONER: I might have put a better argument to the opponents of Tabcorp, I bought Powerball last week and it was my turn to win it, if I had known what the winning numbers were.

PN47

MR GRAY: Well, our argument is that, and I reckon it is fair and equitable in terms of the disadvantage to those people, taking that risk.

PN48

THE COMMISSIONER: So what you are saying - how much is the site allowance at the moment?

PN49

MR GRAY: $2.70.

PN50

THE COMMISSIONER: $2.70. And you are saying that because they are assisting or working with some demolition work which normally attracts an allowance of $4, you are saying they should get how much?

PN51

MR GRAY: It should be increased by a dollar in proportion to what the site allowance was increased back in December of last year.

PN52

THE COMMISSIONER: You are saying the demolition allowance should now become $5?

PN53

MR GRAY: Yes. And we understand that we would have argued from that at beginning if it was a 2.70 site allowance because it is only $1.30 for taking on the responsibilities of demolition work.

PN54

THE COMMISSIONER: Come on, you wouldn't argue if they didn't know something was going to - in the past, they just want some more now.

PN55

MR GRAY: Beg your pardon?

PN56

THE COMMISSIONER: You just can't come here and put that sort of argument.

PN57

MR GRAY: Well, I have been asked to put that argument, and our members believe that it is fair and equitable, because - - -

PN58

THE COMMISSIONER: Do your members sit in the sheds over this?

PN59

MR GRAY: No.

PN60

THE COMMISSIONER: Has there been any industrial disputation at the site?

PN61

MR GRAY: No, not to my understanding.

PN62

THE COMMISSIONER: No stoppages whatsoever? Are you sure?

PN63

MR GRAY: Not over this issue, has there?

PN64

THE COMMISSIONER: Are you sure?

PN65

MR GRAY: I am pretty sure. They are good little boys.

PN66

THE COMMISSIONER: ..... to support that. Well, what is your next argument?

PN67

MR GRAY: The other argument. Terms of the argument in relation to going from one site to another the bow has been drawn in terms that if you had a fenced-off site which McConnell Dowell did for one stage, and we agreed with all parties that if we asked someone to go and work on the higher construction rate site, being the metal site you would get a higher rate and - - -

PN68

THE COMMISSIONER: You would get the site allowance that applied for that job.

PN69

MR GRAY: That is right.

PN70

THE COMMISSIONER: And the rates of wage that applied for that job while you were doing that work on that site.

PN71

MR GRAY: And to stop any argument of a claim put in from the other site, don't send them back to the other site, leave them on that metal site, and - because a person would have an expectation to - seeing they are working for the same company, to maintain that rate of pay that they achieved on the metal site. In relation to - - -

PN72

THE COMMISSIONER: Who - - -

PN73

MR GRAY: Hang on.

PN74

THE COMMISSIONER: Don't tell me to hang on.

PN75

MR GRAY: All right, sorry.

PN76

THE COMMISSIONER: Who put that idea in their tiny little brains?

PN77

MR GRAY: Well, it has happened on sites from time and again.

PN78

THE COMMISSIONER: Yes. It has happened on sites from time and time again when the unions managed to jack the employer up and the employer showed his usual lack of spine and fibre and bucketed and buckled.

PN79

MR GRAY: But if I could go a step further, is that we had two people that went down to the Silo Site to pull a crane apart to be moved on to the Webb Dock Site. Now, whilst they were on that site, they achieved the McConnell Dowell silo rate.

PN80

THE COMMISSIONER: Yes.

PN81

MR GRAY: And when they went back to the other site they went back to the normal rate, the Webb Dock rate.

PN82

THE COMMISSIONER: Yes.

PN83

MR GRAY: Everything was hunky dory when until a TA on that site who had been sent back from the Silo Site and for some period of months has been paid $23 an hour which is the silo TAs rate, while the rigger is on $18.90. That is the inherent problem that has caused the problem - the claim to go in, the stings in the tail.

PN84

THE COMMISSIONER: Well, who managed to mishandle that, and while actually still working for McConnell Dowell?

PN85

MR GRAY: I don't know.

PN86

THE COMMISSIONER: Mr Gray, the fact that the company's administration is not work a zack, and the bloke went back to the other site and maintained that rate, that is in his pocket. The money can't be taken off him. But it is not a basis for everyone else who moves between those sites to claim the furtherance of those higher rates for all time.

PN87

MR GRAY: Let me say this; crib room politics is a strange politics, and once that rate got around - - -

PN88

THE COMMISSIONER: I am not interested in crib room politics. I will tell you what I am interested in. You know what this is called? You know what this thing is called?

PN89

MR GRAY: Mm.

PN90

THE COMMISSIONER: What is it?

PN91

MR GRAY: It is the IR Act.

PN92

THE COMMISSIONER: The Workplace Relations Act. You tell me where it says in there, or can you show me any registered certified enterprise agreements that show me where that happens?

PN93

MR GRAY: I would say that it would be a difficulty.

PN94

THE COMMISSIONER: Because, Mr Gray, I couldn't give tuppence for crib room politics. I couldn't give tuppence for the politics of blokes getting half full of squirt on pay days and deciding what they are going to do the next week. I couldn't care less about people trying to import the performances of the old BLF and some of the more recalcitrant officers of the CFMEU on to sites. And since I have been a member of this Commission I have never wavered in my view, and you know that. You were an official of the ETU, and used to appear before me. You never used to try and pull that stunt.

PN95

MR GRAY: Well, the problem we have got here is that that rate has been going on and people have known about it and nothing has happened about it with that TA.

PN96

THE COMMISSIONER: Well, if they have known about it and the riggers have been content for the TA to be $5 an hour more, why didn't the rigger go whingeing to the foreman or the site supervisor and say, why aren't I getting the rate, or why isn't he back on the right rate?

PN97

MR GRAY: I think that had been done, but nothing has come about it.

PN98

THE COMMISSIONER: Are you telling me the TA is still on that rate of pay.

PN99

MR GRAY: Yes, last week.

PN100

THE COMMISSIONER: Sit down, Mr Gray.

PN101

MR GRAY: Thank you.

PN102

THE COMMISSIONER: Well, Mr Kelly. What have you got to say about TAs getting $5 an hour more than riggers?

PN103

MR KELLY: Well, Commissioner, I have just conferred with my client who assures me he has no knowledge of this. I accept that he is not the construction project manager for that site, but we could - I think it might be a bit difficult to ascertain the accuracy of Mr Gray's statements at this time, Commissioner. I intended to seek to argue to you that the attempt to introduce a flow-on of rates, one can understand rates being risen to accommodate - - -

PN104

THE COMMISSIONER: Mr Kelly. The Commission is constituted its position in respect of the shifty flow-on of rates is well known. They can flow their rates down someone else's sewer, not in this Commission's. I want to know why a trades assistant who is working at the MCF Silo Site at Lorimer Street is getting $23 an hour when he has been sent back to Webb Dock, and a rigger at Webb Dock is getting $18 an hour, why the matter hasn't been resolved, how long McConnell Dowell's management have known about it, and why hasn't it been resolved, and who is the responsible officer at McConnell Dowell?

PN105

MR KELLY: On the site?

PN106

THE COMMISSIONER: No. Who is the responsible officer at McConnell Dowell in Australia?

PN107

MR KELLY: Mr Robinson.

PN108

THE COMMISSIONER: Where does Mr Robinson live? In what capital is he domiciled?

PN109

MR KELLY: At Melbourne, Commissioner.

PN110

THE COMMISSIONER: Well, I will tell you what you are going to do, Mr Kelly. You are going to ascertain what is going on there and I am going to adjourn this matter, and when you have got an answer you are going to bring Mr Robinson back with you because I am sick and tired of the machinations of McConnell Dowell in Victoria. This Commission is adjourned sine die. My associate will inform the parties of when this matter is re-listed. Good afternoon.

ADJOURNED INDEFINITELY [5.21pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AUTHORITY FOR MR KELLY TO APPEAR PN17