C2001/1857, Transcript of Proceedings [2001] AIRCTrans 775 (4 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2001/1857

HANSEN YUNCKEN PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION - FORREST AND FOREST PRODUCTS
DIVISION, SOUTH AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute re signing of an enterprise agreement

ADELAIDE

12.56 PM, WEDNESDAY, 11 APRIL 2001

Continued from 9.4.01 before Harrison SDP

PN61

MR HARRISON: I wonder if I could convey my apologies for my late attendance. It is difficult getting a park around here today for some reason.

PN62

THE COMMISSIONER: I, of course, accept those apologies.

PN63

MR HOWARD: If the Commission please, may I thank the Commission for putting this matter on expediently. I know you have got other important issues and I thank you for taking time out to list this matter. This matter was last before the Commission on Monday of this week, Monday 9 April, when it was adjourned for further discussions to take place between the parties. The dispute itself is at the National Wine Centre which is on the corner of North Terrace and Hackney Road about - less than a kilometre from the Commission. The circumstances of the dispute, as I understand it, the transcript is not available, is that a ban was placed by an organiser of the CFMEU on the lifting of panels.

PN64

Now, what has actually happened is there is initiation of a bargaining period and a notice of intention to take industrial action against a company called Whiteside Constructions Proprietary Limited, a carpentry business. The ban that has been placed has been placed by employees of Samaras Structural Engineers Proprietary Limited who do have a certified enterprise agreement. Also the principal contractor, Hansen Yuncken Proprietary Limited have a certified enterprise agreement. The situation with this unfortunate dispute is that it does not affect the daily operations of Whiteside Constructions Proprietary Limited.

PN65

What it is doing is hurting the principal contractor, namely Hansen Yuncken who are struggling to complete this extremely important Government project by the scheduled date and as late as yesterday were under great strain by the Department of Administrative Service on behalf of the Government to get things going and resolve the issue and get the project back on target. I might say this, and as I said to my colleague this morning who I understand has only just picked up the matter because Mr Harrison wasn't involved in Monday's hearing is that Mr Whiteside was at a meeting late yesterday afternoon at the Master Buildings Association with other carpentry companies discussing the finalisation of enterprise agreements.

PN66

The organiser responsible for the industrial action on the National Wine Centre is not the organiser who is involved in the sector negotiations with the carpentry employers. There are approximately four if not maybe five carpentry businesses involved in the negotiations with the CFMEU in respect of the finalisation of an enterprise agreement. It is interesting to note that there is no industrial action being taken against those other companies, albeit that they are all at the same stage of negotiating the agreement. Mr Whiteside has not said that he won't enter into an enterprise agreement.

PN67

What he is trying to do is negotiate an agreement with his own employees that will be suitable for his organisation as are the others. I can inform the Commission that this morning four documents were drawn up on behalf of those companies involved in the negotiations in the carpentry sector. Their enterprise agreements have been drawn up for them to take back to their employees for further negotiations. Unfortunately at this point in time, the project has basically stalled in that there is a panel that has been completed sitting on the jig on the ground and it is vitally important that that panel is lifted into place.

PN68

Now, that work, the lifting of the panel and the fixing of the panel in place, is Samaras Structural Engineers work. It is not Whiteside Constructions Proprietary Limited work.

PN69

THE COMMISSIONER: What is the name of the - I don't quite catch the name of the structural engineers.

PN70

MR HOWARD: Samaras, S-a-m-a-r-a-s, Structural Engineers. They are one of the big crane - big steel fixing crane company.

PN71

THE COMMISSIONER: Well, I understand. It was just the name.

PN72

MR HOWARD: That the work that is banned is their work. It is not the work of Whiteside Constructions. Now, by not lifting this panel, completed panel, into place and fixing it, it stops the last panel from being fabricated. That is a critical part of this project at this point in time. We need desperately to get the panel lifted, the completed panel lifted, and we then need to get the other - the last panel fabricated so that it can be lifted into place as well and the project goes back - - -

PN73

THE COMMISSIONER: Presumably it can't be fabricated because the jig is needed, is that the situation?

PN74

MR HOWARD: Yes, that is right. Now, on Monday my friend Mr Fiend from the union raised a circumstance of Hansen Yuncken enterprise agreement and a clause that relates to subcontractors. That clause says that the company will assist subcontractors in the formulation and encourage them to have an enterprise agreement. Well, that is the case at the moment. The company has been encouraging Mr Whiteside and tried to facilitate Mr Whiteside into an enterprise agreement. Now, that has been successful from Hansen Yuncken's point of view in that Mr Whiteside is currently involved in the negotiations to finalise an enterprise agreement.

PN75

It seems to me that the circumstances are that we really do need to get those panels lifted and we probably need to request that the bans be lifted. At this point in time, we would seek a recommendation because I think we may not be far away from discussions I had with my friend this morning, Mr Harrison that it may be that the bans could be lifted and I'm not putting him in an awkward position by saying that he has agreed to lift the bans, it is that he is not in that position. There seems that there might be some opening of the waters and we might be able to get the project back on target. I guess at this point in time, Mr Commissioner, that is about all I could report. If the Commission pleases.

PN76

THE COMMISSIONER: Yes, thank you, Mr Howard. Mr Harrison?

PN77

MR HARRISON: I wonder for my assistance the Commission could ascertain whether Whiteside Construction has the contract with Hansen Yuncken to manufacture and erect these panels or whether Whiteside Construction just erect - build them on site and Hansen Yuncken contract out to Samaras to do the rest of the work.

PN78

MR HOWARD: I've been informed that Whiteside Constructions contract is for the assembling of the panels on site. They assemble the panels on the jig and then Samaras Construction Engineers lift them into place and the rest of the work is steel fixing which is - steel rigging which is Samaras Structural Engineers contract.

PN79

MR HARRISON: With respect, that does not quite answer the question. Who has got the contract, Whiteside - - -

PN80

MR HOWARD: Well, Mr Salveson who is the project manager - - -

PN81

THE COMMISSIONER: Mr Salveson, can you get us through this little - - -

PN82

MR SALVESON: There's actually two separate contracts. Whiteside has a contract, a labour only contract to assemble the panels on the jig and then there's a separate contract with Hansen Yuncken or Samaras to lift the panels into position.

PN83

THE COMMISSIONER: And fix them?

PN84

MR SALVESON: And fix them.

PN85

MR HARRISON: Well, that being the case, I'm prepared to concede that our organiser has been misinformed. He sees Samaras as the agents of Whiteside and therefore falling within the purview of his protective action. I will hand up the Hansen Yuncken EBA, in particular clause 2.7 which is the - - -

PN86

THE COMMISSIONER: I will have to put you to the task of approaching the bench, Mr Harrison.

PN87

MR HARRISON: Yes, thank you. I do this as a matter of completeness. It might well be that if I could have a 10 minute adjournment, it wouldn't be necessary for you to make a recommendation. I might be able to come up with a proposal which - I'm not sure whether this site is working over Easter.

PN88

THE COMMISSIONER: Well, it might be easier if we were to go into conference briefly. We will just go off the record.

OFF THE RECORD

PN89

THE COMMISSIONER: Mr Harrison, is there anything you wish to put formally any further?

PN90

MR HARRISON: No, that is the - - -

PN91

THE COMMISSIONER: Well, arising out of that conference, I think it is - two things are apparent. The first is that the immediate problem of lifting and - it is more than lifting a panel, isn't it? It is also fixing it?

PN92

MR HOWARD: Yes, lifting and then fixing, yes.

PN93

THE COMMISSIONER: Yes, the immediate problem - the job of lifting and fixing the panels is not part of any contract between Hansen Yuncken and Whiteside Constructions Proprietary Limited. It is a contract between Hansen Yuncken and Samaras Structural Engineers, presumably a company Proprietary Limited, and in that case the action by the union would not appear to me to be a protected action in any sense. That being so, the other matter that arises from the conference is that it would be a days job and the first available opportunity given the Easter break and an RDO on the Thursday of this week, for the company to actually carry out the lifting and installation would be on Tuesday of next week. On that basis, I would recommend to the union that the ban that has been placed on the lifting and installation of the panel be lifted with effect from the commencement of work on Tuesday morning, 17 April. Do you want that recommendation produced in writing or is it sufficient?

PN94

MR HARRISON: I can convey it anyway.

PN95

THE COMMISSIONER: The transcript will be ordered and that will be available to you.

PN96

MR HOWARD: Yes, it will be on the transcript. That is fine.

PN97

THE COMMISSIONER: So we will leave it at that. The proceedings are adjourned on that basis. Thank you, gentlemen.

ADJOURNED INDEFINITELY [1.16pm]