C2001/2128, Transcript of Proceedings [2001] AIRCTrans 966 (24 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O\N 7223

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CRIBB

C2001/2128

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section WR127(2) of the Act
by Silcar Maintenance Services to stop or prevent
industrial action

MELBOURNE

1.05 PM, FRIDAY, 4 MAY 2001

Continued from 3.5.01

PN165

THE COMMISSIONER: Mr Maddison.

PN166

MR MADDISON: Commissioner, my understanding yesterday when we left you was that witness statements that the applicant in this matter intended to rely upon, they were going to endeavour to get them to us by the end of yesterday.

PN167

THE COMMISSIONER: Yes, that is correct.

PN168

MR MADDISON: That did not happen, Commissioner. At about 10 o'clock this morning I sent a fax to the solicitors representing the applicant in this matter. I can hand up a copy of that letter. Commissioner, in that letter I just simply that I have not received those materials and to put the applicant on notice that we would be seeking a further adjournment on that basis. Commissioner, as you are aware there is another matter before Commissioner Whelan which commenced at 12 o'clock.

PN169

I left the office at around about 11 o'clock; I had not received any materials although Ms Zeitz does inform me that it should be waiting for me at my office on my return, and I have also been provided with a hard copy now upon entering the Commission. In any event, the union, CEPU and I believe the situation in relation to the other unions is identical have not received any materials prior to the hearing today. So I would be seeking a further adjournment on that basis to allow us to view the material and have an opportunity to bring any evidence that may need to in response to that material.

PN170

THE COMMISSIONER: Mr Maddison, were you planning on supplying witness statements? Are you going to have any witnesses and if you are, were you planning on providing the same courtesy to Ms Zeitz?

PN171

MR MADDISON: The same courtesy being, Commissioner?

PN172

THE COMMISSIONER: Of being late. Witness statements, Mr Maddison.

PN173

MR MADDISON: Commissioner, I would - as I have indicated, Commissioner, I have not read those statements but it is quite possible that I will be intending to bring evidence in response to those materials once I have read them.

PN174

THE COMMISSIONER: Okay.

PN175

MR MADDISON: Commissioner, I should just point out - - -

PN176

THE COMMISSIONER: And does that mean that if you are calling witness evidence you will provide the applicant - - -

PN177

MR MADDISON: Certainly, that is my practice, Commissioner, that I do provide witness statements.

PN178

THE COMMISSIONER: Good, thank you.

PN179

MR MADDISON: In as far in advance as is possible given time constraints on parties in these matters, Commissioner.

PN180

THE COMMISSIONER: Right, okay.

PN181

MR MADDISON: Thank you, Commissioner.

PN182

THE COMMISSIONER: That you, Mr Maddison. Ms Zeitz? Sorry, did any of the other unions wish to - yes, Mr Waineright.

PN183

MR WAINERIGHT: I might just place on the record that I left my office slightly after Mr Maddison and I did receive the email and now I have the statements but have not had a chance to read them as yet as I was in the other matter.

PN184

THE COMMISSIONER: Thank you, Mr Waineright. Ms Zeitz?

PN185

MS ZEITZ: I was not sure if Mr Addison had anything to add, Commissioner.

PN186

MR ADDISON: Just the same - I am in exactly the same position as the other unions. The matter should be adjourned. There is another matter before Commissioner Whelan. I have just received these documents. I will leave it at that.

PN187

THE COMMISSIONER: Thank you, Mr Addison. Ms Zeitz?

PN188

MS ZEITZ: Thank you, Commissioner. The statements were provided, as Mr Maddison said, this morning and they were I indicate provided as soon as practicable. By the time they were drafted and settled and put into a form that was appropriate for the Commission it was not possible to provide them earlier. We oppose the adjournment, Commissioner. We are ready to proceed. We say that there is no disadvantage to the respondents to this application by proceeding today. The Act requires that applications pursuant to section 127 be heard and determined as quickly as practicable. This application has been extant before the Commission since Wednesday of this week, Wednesday morning, so that is three days. Our client has no confidence that further industrial action is not pending or probable. And, in my submission, the Commission should not be persuaded to grant an adjournment simply on the basis that the witness statements were not available until mid-morning.

PN189

They have been provided and, given that the parties were in conference yesterday, there could be no suggestion that any of the parties before you this morning were not aware of the issues in dispute in at least broad and factual terms that would allow them to assess and determine which of their members and/or shop stewards would be required to give evidence. They very well knew, in my submission, the issues between the parties and in fact in relation to at least two of the actions it was conceded that there had been industrial action on 27 April, 1 May and 2 May. It was further conceded that there was industrial action on 3 May at Yallourn.

PN190

The only issue in dispute was the basis for that and, in our submission, relying upon the decision of Senior Deputy President Polites in Re Esso Australia Pty Limited, if the Commission is satisfied that industrial action is taking place, the applicant is entitled to orders to stop or prevent action if that action is not protected and we say that in this case the application should be granted and should therefore proceed so the Commission to determine whether or not to exercise its discretion to grant the application.

PN191

If the Commission is mindful despite that, and I indicate I have everybody here ready to give evidence this afternoon, so the Commission should be assured that we are ready to proceed and my client wishes to proceed with the application. If the Commission is against me on that, then in my submission, the application should not be granted without a direction under section 111(1)(d) of the Act that there be no industrial action occur during the period of any adjournment and that should be issued as an order of the Commission. Section 111(1)(d) gives the Commission power to give a direction in the course of or the purposes of the hearing or determination of an industrial dispute, and in my submission, that is sufficiently wide to allow the Commission to give a direction that there be no industrial action for the period of the adjournment since the application is before the Commission in relation to industrial action that has been taken.

PN192

And I do not understand at this stage that any of the people who represent the various unions are prepared to give an undertaking that there will be no industrial action. In the absence of such an undertaking on the record before the Commission, we say that my client is at least entitled to the protection of a direction of the Commission and we say that particularly because the Commission made recommendations in section 99 proceedings on 1 May, last Tuesday. My client walked out the Commission with those recommendations which included a recommendation from yourself that there be no further action taken. They received within an hour of those proceedings concluding notice of intention to take industrial action the next day with a mass meeting which resulted in a stoppage for 24 hours. The action of the parties on 2 May was unprotected and unlawful under the Workplace Relations Act and, in my submission, it should not be condoned by the Commission.

PN193

There was a deliberate and flagrant breach of a Commission recommendation in addition to the breaches of the various sections of the Acts. The people representing the members at the site participated in the proceedings on 1 May and, in my submission, have not indicated the genuine commitment to the resolution of the dispute by their conduct that occurred on 2 May and on that basis my client is entitled at the very least to the protection of an order of the Commission if this matter is to be adjourned. And I rest very firmly on my primary submission which is this matter should not be adjourned, it should proceed to hearing. If the Commission pleases.

PN194

THE COMMISSIONER: Thank you, Ms Zeitz. Mr Maddison, what is the position of the unions, you being the first, with respect to the undertaking?

PN195

MR MADDISON: Commissioner, in respect of that I say this: when we were before you yesterday and we had what I call the drafting exercise in terms of the applicant's grounds, they identified threatened industrial action in relation to the CEPU members today, that is the 4th, and they also identified an alleged mass meeting that may take place on the 9th. In relation to today, that meeting was cancelled. I have spoken to Ms Green from Silcar this morning and further explained the nature of what the CEPU intends to do in respect to addressing our members about a provision that is contained under the new agreement which is a change to the last one and said that we will have further discussions about when that will take place which is suitable to all the parties.

PN196

So one of their threatened industrial action claims from yesterday is no longer, in my submission, on the table. There is allegations about a mass meeting on the 9th. Our evidence will be refuting that, Commissioner. When we had some discussion before you yesterday about further proceedings in relation to this matter, you identified Tuesday as a day where you can spend at least some time with that matter. If the matter is heard and determined then, we say that the company will suffer no prejudice. The matters can be ventilated and determined on that day. In the absence of any other threats of industrial action from the applicant we say that there is no need for the union to give any undertaking sought. And secondly, it does not require you to issue any directions or recommendations in the matter. Those are my submissions, Commissioner.

PN197

THE COMMISSIONER: Thank you, Mr Maddison. Mr Waineright?

PN198

MR WAINERIGHT: Commissioner, I support the submissions of the CEPU but would like to add that the CFMEU made no concession that the action that occurred yesterday at Yallourn was industrial action within the definition of the Workplace Relations Act. We thought at the time, and have not been able to ascertain since, that it could be at least argued that that action was taken in a circumstance where there was an immediate risk to health and safety and we were going to hear evidence on that today. Because we have received the statements late I have not changed the position that I put yesterday on that matter.

PN199

THE COMMISSIONER: Do you have a position to put with respect to the mass meeting on 9 May which the company has cited as evidence of future industrial action?

PN200

MR WAINERIGHT: I have been instructed that there is no such mass meeting scheduled for 9 May.

PN201

THE COMMISSIONER: Thank you. Mr Addison?

PN202

MR ADDISON: Thank you, Commissioner. Commissioner, we support the submissions of both the CEPU and the CFMEU and similarly there was certainly no concession from the MWU yesterday that the action occurring at Yallourn Power Station yesterday morning was industrial action. Indeed, specific reference was made by Mr Waineright and myself with regard to the exemption in the definition under section 4 in relation to that action. Clearly we raised that, we thought at that point in time it was a health and safety issue. We do not resile from that proposition. So there is no concession there.

PN203

With regard to a mass meeting on the 9th, you will recall that yesterday I put quite specifically to the company and to yourself that there was no mass meeting planned for the 9th. There was some - there would be a report back meeting at some time in the future. Logically, even if the talks started almost immediately on Monday, it would be highly unlikely that anybody would be in a position to report back by the 9th. So I can categorically assure the Commission that there is no mass meeting planned at this point in time for the 9th.

PN204

With regard to undertakings, I am not instructed to give any undertakings. I have sought those instructions and I am not instructed to give any undertakings. With regard to the current issues, the only people who are breaching the status quo if you like at this stage are in fact the company. It is our view that there is a deliberate attempt to inflame the issue so that people will take industrial action. And that breaching of the status quo, ever since Silcar has been a contractor in the industry, the stewards have been allowed with pay to attend the Commission to look after the interests of their members.

PN205

The company yesterday made a deliberate decision that the stewards would not be paid for attending this hearing today. Stewards will be attending the hearing as witnesses and also as instructors. I am absolutely positive that the management people at the other end of this bar table who are acting as witnesses and instructors will be being paid, but our shop stewards are not being paid. Now, in my submission, that is an absolute deliberate attempt to inflame the situation. It is a complete breach of the status quo in this industry - and I have been involved for 20 years and I have never come across this type of action before in that 20 years, so it is something absolutely new and out of the blue and an attempt to inflame the situation. You will note, Commissioner, that there is no industrial action currently in place on either of the Silcar sites despite this clear flagrant attempt to inflame and escalate this dispute. If the Commission pleases.

PN206

THE COMMISSIONER: Ms Zeitz, do you wish to say anything further?

PN207

MS ZEITZ: Only this, that in my submission, it is disingenuous to suggest that undertakings cannot be given given the conduct of the unions and their members after the conference before yourself and the recommendations. My client has no confidence in the absence of undertakings or directions that action will not be taken, and indeed we do not have great confidence that even with those but it would at least give my client some comfort if the Commission were to issue a direction in the absence of undertakings which we say are properly sought and given in the context of what this application is all about.

PN208

With respect to the shop stewards, we simply say this: my instructions are that they will not be paid for attendances in relation to these proceedings while action that has been taken is unlawful and illegal under the Act. That is entirely different to attendance in proceedings in matters relating properly to negotiations for certified agreements, protection action and similar matters. The actions that have been taken - let there be no suggestion to the contrary - are in breach of the Workplace Relations Act 1996. My client has remedies elsewhere should it choose to use them. It is seeking the assistance of the Commission rather than further inflaming the situation but it will not provide payment to shop stewards who are engaged in that conduct while they continue to engage in it. If the Commission pleases.

PN209

MR ADDISON: Commissioner, could I just clarify that last submission of Ms Zeitz? I have already said there is no action going on, legal or illegal. There is no action at all. Does that mean the shop stewards who are currently attending this afternoon are being paid because they are certainly not engaged in any action, whether it be legal or illegal.

PN210

MS ZEITZ: I said in relation to these proceedings which relate to illegal action under the Act and that is what I meant. So their attendance here will not be paid.

PN211

THE COMMISSIONER: Does that clarify the situation?

PN212

MR ADDISON: Well, it clarifies the situation and I repeat what I said earlier. It is a deliberate attempt to inflame and escalate the situation from the company. I note also Ms Zeitz's submission that even if you do issue a direction, she has got no comfort that - she has got no expectation that will be held. In those circumstances without submissions from the applicant for a direction, the Commission ought not under any circumstances issue a direction. What Ms Zeitz invites you to do is bring the Commission into disrepute and, in my submission, that is just a nonsense.

PN213

MS ZEITZ: I do not know that I need to respond to that, Commissioner. I hope I do not.

PN214

THE COMMISSIONER: Let me deal with the matters before me in two parts. The first is essentially an application by the unions for an adjournment of this matter and I think it is understood by all of the parties that the adjournment being sought is actually until next Tuesday, 8 May at 10 am. I have given careful consideration to this application and very reluctantly I have agreed to grant the application. I want to make it exceptionally clear that this is the only adjournment that will be granted. That at 10 o'clock next Tuesday on 8 May the formal hearing of Silcar's application will recommence and the Commission has available to it at this stage until 2 pm and that the Commission will not be breaking at any time between 10 am and 2 pm.

PN215

Now, that is a very polite way of saying the Commission is extremely focused on this matter being heard and the proceedings proceeding. It is Friday, all right. I may have been flippant but I just want the union parties to understand in black and white that there is no discussion and no negotiation about doing anything other than commencing the - and hopefully finalising - the application by Silcar on Tuesday morning.

PN216

With respect to the second part of this morning's matter, this deals with, in the event the Commission went that way, the company has sought for an undertaking to be obtained from the unions that there will not be - on the basis that an adjournment is granted that there will not be any industrial action between now and at least then if not forever. The unions, it appears, quite clearly have been unable to give that undertaking this morning. It is clear that with respect to the CEPU, and I think the other unions with respect to 9 May which was one of the industrial action events that the company has included in its application, it appears that that is not going ahead, certainly on the 9th, and as I understand it from the CEPU that they are the only ones involved in the meeting concerning redundancy that was scheduled for this morning that has been cancelled.

PN217

So I accept at least to that extent that the items that were contained - those two items that were contained in the company's application are not going to happen. Now, I have been asked for a direction that there is nothing else, that nothing else happen under whatever label you like to give it. The parties are aware or are familiar with the recommendation the Commission made last week and also the Commission's view contained in that recommendation concerning status of the enterprise agreement and the status of the issue that the unions are seeking to pursue with respect to that agreement.

PN218

The best way I think to go to get us from now until Tuesday is for the Commission itself to put a condition on the granting of the adjournment today, and that is that there shall be no industrial action taking place between now and next Tuesday. That is my clear expectation and it is what will happen from my perspective. If that is not heeded, the company is to contact me immediately and I will move heaven and a few planets and what has been adjourned until Tuesday will occur at some point between now and then. Now I need to indicate that if that has to happen, the Commission as presently constituted will not be impressed. I think that concludes the matters for today. I shall adjourn until 10 am on Tuesday, 8 May.

ADJOURNED UNTIL TUESDAY, 8 MAY 2001 [1.30pm]