C2001/1813, Transcript of Proceedings [2001] AIRCTrans 982 (28 May 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 7255

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER TOLLEY

C2001/1813

CEA CONSOLIDATED INDUSTRIES

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Notification pursuant to Section 99 of the Act
of a dispute re alleged refusal of employees of
BRD Industries on the Boral Deer Park site at
Boundary Riding Road Deer Park

MELBOURNE

11.07 AM, MONDAY, 7 MAY 2001

Continued from 27.4.01

PN40

THE COMMISSIONER: There are no changes in the appearances I note. This matter is set down for report. Mr Hoy?

PN41

MR HOY: Thank you Commissioner. If it please to remember when we were last before you on Friday 27 April, we adjourned pending the inspection to be taken by WorkCover on the Monday. That inspection did go ahead and there were a number of areas that identified by the WorkCover report that needed to be addressed. Now, I can go through those in detail if you wish, or I can just give you a brief - - -

PN42

THE COMMISSIONER: No, I do not want it.

PN43

MR HOY: Okay. The company then addressed those issues and a further WorkCover inspection was arranged and took place on 30 April. That WorkCover inspection signed off on a number of issues but there were still a couple outstanding. A further WorkCover inspection took place at 9.30 on the 1st of the fifth and then a final WorkCover inspection took place at 3.30 on the 1st of the fifth, where all matters outstanding had been addressed, apart from an amenities sub-board still requiring an effective lockout for RCD and other current devices.

PN44

The company then engaged an electrical contractor, Mortimer Electrics Pty Limited, who made the necessary adjustments to the sub-boards. Commissioner, from the company's point of view there have been no outstanding OH and S issues. The company will ensure a qualified first-aid officer is available on site at all times during any work being undertaken. The company has put the project engineer through a first-aid course.

PN45

THE COMMISSIONER: Be quiet, Mr Spivey.

PN46

MR HOY: The company has put the project engineer through a first-aid course and he is now a level 2 first-aider. The company will ensure that all amenities will be maintained to a satisfactory standard. Despite this the union continues to impose the bans on the project. The company did meet with the union on Friday 4 May and in those discussions I am instructed that the only outstanding issue from the union was that employment of a labourer with first aid qualifications.

PN47

Commissioner, we say there is no legitimate grounds for the employment of a CFMEU nominated labourer, management have few prerogatives left, but I would submit one is clearly the engagement labour. If that is an issue, the civil contractor has indicated that they have a labourer available within their own workforce that could be transferred to the site if that was a requirement. It is our position, Commissioner, that all OHS issues have been met and no grounds exist for the continuation of the bans currently in place. If the Commission pleases.

PN48

THE COMMISSIONER: Thank you. Mr Noonan.

PN49

MR NOONAN: Commissioner, on the last occasion we were before you, the union raised a number of concerns as you would recall in relation to the status of occupational health and safety matters on the site and it was my intention to go to a number of other matters. However, that was not necessary because obviously saw that the other matters took some precedence and needed to be sorted out. We are aware of two, not three, inspections that have taken place on site since the last hearing, Commissioner, and might I say, it is important to note that the allegations that the union made at that time have been substantially borne out in respect of first aid, particularly where the company as you will recall from the last occasion, came to the Commission claiming that there were no issues on site in relation to first aid.

PN50

I think it is very important that we are clear about this issue. I do have a copy of two reports from the Victorian WorkCover authority which I would seek to tender here today. The first is a report from the VWA on - I have a second, and for convenience I might hand them both up now. The first, Commissioner, details the need for a number of things to happen including site induction to be upgraded - the form to be upgraded I should say, a traffic management plan defining the construction area, first aid register to be upgraded as per regulations. The Commission will recall, well at point six, the inspector observes that;

PN51

The first aid arrangements provided that the workplace ...(reads)... code of practice first aid in the work place.

PN52

And the inspector then makes comments about the electrical, safety and so on. Now, there has been - that is the report of 27 April, Commissioner. I am not sure if we have marked that.

EXHIBIT #A1 REPORT FROM VICTORIAN WORKCOVER AUTHORITY DATED 27 APRIL

PN53

MR NOONAN: About the second document, Commissioner, it was clear that there was still - the union still had some concerns about a number of electrical matters and Mr Coffey from the ETU made himself available, as did the WorkCover Authority for a further visit and the second workcover authority report dated 1 May goes on to detail a range of areas in which the site was not compliant with the relevant code of practice in respect of temporary installations and the construction industry. That is the last information we have about the state of the site, Commissioner. It is news to us here today that a further inspection has taken place on the site. We have seen nothing to indicate that the site is now compliant with the sort of standards that are required in the industry and we certainly would want some reassurance before we give any sort of commitments here today.

EXHIBIT #A2 REPORT FROM VICTORIAN WORKCOVER AUTHORITY DATED 1 MAY

PN54

Now, what is also significant about this report is its - in these sorts of situations where for reasons best known to themselves, we do not have the appointment of a principal contractor in the traditional method. WorkCover have determined that Boral Limited are in fact the party upon whom they have served the notice and we assume from that, the party who has the overall responsibility for occupational health and safety at the site level. Commissioner, we have had some discussions - the union has, I have not personally - I am instructed there have been some discussions with Boral which have been, I think, helpful, but we have not conclusively resolved all of the issues that we would seek.

PN55

I should just comment further in respect of maintenance of the amenities, in other words the peggy type work which needs to be done to keep amenities clean and that is noted at point eight in A1, maintenance that is required for all site amenities and facilities. We are still no wiser as to how that happens. The Commission will be well aware that on construction sites it is the practise that construction workers have a peggy to maintain, either on a part time or full time basis, to maintain site amenities - generally, or in all cases, we have never accepted them being cleaned by foremen, engineers, contract cleaners or anybody else. So, that remains an issue. We think the way forward is this, Commissioner - we think that clearly the workcover authority that Boral has a responsibility or has an overall role in respect of the site.

PN56

It is our view that if there is to be further progress in this matter there should be narratives involving Boral, or Boral in fact should be here and we think that that means there would be, if you like, some involvement from the organ grinder as well as the monkey. Subject to the union being satisfied that the requirements which are outlined, because these reports outline problems on the site, they do not outline solutions to them. As I said, we have never been back for the third inspection, we have never been satisfied that all these issues have been properly dealt with and identified so we need to be satisfied about that. There are also a range of issues which arise under the Victorian Building Industry Agreement which binds, at least, the employer of labour on site, meaning BRD, which we say have not been - or we have difficulty in seeing how they could be compliant under the current circumstances.

PN57

So, I could go to those, but perhaps it is best I do not at this stage, Commissioner, excepting to say that we would see that there is a need for Boral to be here and some further proper discussion to happen and a solution to the problems which have arisen at this site to be reached overall. If the Commission pleases.

PN58

THE COMMISSIONER: Do you have a copy of the third report, Mr Hoy?

PN59

MR HOY: I do, Commissioner. I seek to tender that third report.

EXHIBIT #R1 REPORT FROM VICTORIAN WORKCOVER AUTHORITY DATED 1 MAY

PN60

THE COMMISSIONER: Has the work spelt out as being inadequate in point two been - - -

PN61

MR HOY: We have a statement from Mortimer Electrics which I seek to tender to the Commission. I apologise for the quality of the copy, Commissioner. Perhaps if I read it out?

PN62

THE COMMISSIONER: What do you say about the other issues raised by Mr Noonan?

PN63

MR HOY: What we say, Commissioner, is as far as the CEA Consolidated Industries are concerned, we do not believe the VBIA applies until the scope and application of VBIA 7.2, engineering construction projects and the cottage and housing industries shall be excluded. We say that the construction of the concrete batching facility from Boral is an engineering construction project and therefore excluded from the VBIA. I understand Mr Noonan's point of view the civil contract BRD has a enterprise agreement in place that picks up the provisions of the VBIA. If that is the case then that is a matter he should be taking up with BRD not CEA, Commissioner.

PN64

THE COMMISSIONER: What do you say about his submission that Boral should be involved in resolving these issues to the finality or do you not comment?

PN65

MR HOY: I am not really in a position to comment other than to say that CEA is contracted to Boral and Boral obviously is the customer from CEA's point of view. CEA keep Boral informed of developments. Boral expressed concern that the matter has not progressed as far as the project goes for a period of over a week now with the bans that have been in place. It is only a six day work project, Commissioner. It is not a long project. We would employ a maximum of 10 people at any one time on the site.

PN66

THE COMMISSIONER: Mr Hoy, whether the project is for a day or for a year, whether it employs one person or 100 persons, this Commission has always been concerned about workplace safety and it appears from the reports there were genuine concerns and those concerns have been upheld because of the workplace inspectors reports about occupational health and safety. Which leaves me to have no faith at the moment in the ability of CEA - it would appear to me that the client who is the owner of the facility or owned the land the facility is going to be on - the eventual of the facility is viewed in the same way by workcover as the persons who are in the end of responsibility. What do you say to that?

PN67

MR HOY: Commissioner, we would say that whilst there were a number of issues identified in the workcover reports, I believe it was not to the extent that anyone would have been placed in unsafe position whilst performing their work on the site. A number of the issues were administrative and they have been addressed. If it was a such a sufficient concern from workcover that employees were in danger, they would no doubt have issued the prohibition notice and that has not taken place. If you believe that the issues can be resolved by having Boral present, then the company is keen to have this matter resolved and for the employees to get back on the job and complete the project.

PN68

THE COMMISSIONER: Thank you, Mr Hoy. Mr Noonan, what parts of the project can ..... work on?

PN69

MR NOONAN: We say the entire project, Commissioner.

PN70

THE COMMISSIONER: Why.

PN71

MR NOONAN: Well, Commissioner, we have had the head contractor - I think I need to deal with a couple of things that Mr Hoy has just said because they are of great concern to me. He says that there is no, if you like - that there was not any particular risk to people's safety out there. Well, - - -

PN72

THE COMMISSIONER: Well, I do not agree with that comment.

PN73

MR NOONAN: Well, I think it is self evident from the comments in particularly the second workcover report. Those, in case the company has any doubt, are serious matters where electrical equipment on site does not comply with the code of practice. Now, that is not the union that makes up the code of practice. It is a code of practice that this contractor either feels they do not have to comply with because they are somehow above that, or they are ignorant of the code of practice and hence are not complying with it. We are very concerned about it, Commissioner, and these non serious matters are the sort of thing that kill construction workers and maim them because of either apathy or ignorance on the part of the sort of contractor that we see here today and I am very critical about the fact that even at this stage, having got up in front of this Commission and said everything was all right on the last occasion, we are still having submissions from the company which say that there are no problems there.

PN74

Commissioner, up until today we have not seen this third report. The other party had not seen fit to provide it to us. I might say when we suggested a joint discussion with workcover on the site, immediately at the adjournment of the last proceedings, Mr Dimech - his response to that was "We do not need to talk to you about that." It was only after talking to his advocate that it seemed that that position changed. We have got no confidence that CEA have the ability or competence to run a construction project and we do want to talk to the people who have their names on there, which is Boral Limited, about getting some finality to these issues.

PN75

As well as that, Commissioner, in respect of Mr Hoy's submission about the VBIA, let me say this - regardless of how Mr Hoy or the contractor may in his own mind have demarked the project in respect of civil or building or whatever, our members are entitled to and the union will insist they receive, a high standard of amenities which is what the VBIA talks about and proper compliance checks on the project and we expect that on this project, as we do on any construction project and we think that is achievable. We do not think that it is an unachievable thing with a bit of common sense and goodwill from the parties. It seems to us from the other end of the bar table we are not quite there yet, but we remain hopeful and we would press that the contractor who has got their - or the organisation who have their name on the notices be involved in further discussions. If the Commission pleases.

PN76

THE COMMISSIONER: Mr Fisher, come up to the bar table. Mr Fisher, do you represent BRD?

PN77

MR FISHER: I do, Commissioner.

PN78

THE COMMISSIONER: Well, BRD appears to be intricately involved in this matter. What is their position?

PN79

MR FISHER: Their position, Commissioner, is they want to get back to work.

PN80

THE COMMISSIONER: We are not in conference, Mr Fisher.

PN81

MR FISHER: Sorry, Commissioner. BRD's position is that they wish to get back to work as soon as possible. The fact is that we have a matter here where there is a dispute between the principal contractor and the unions. BRD, Commissioner, are a sub contractor on this project who do operate under the VBIA and have their own enterprise agreement and apply it, and apply it accordingly. So, in this case, BRD is making it very clear that they are not the principal contractor and they have no intentions of being the principal contractor, and certainly, when we look at the VBIA and the enterprise agreements, it is purely up to the principal contractor to supply the appropriate amenities, the first aid officer and occupational health and safety. We are not disputing that, Commissioner. The fact is that we just want to get back to work.

PN82

THE COMMISSIONER: So, in a nut shell, BRD say they intend to comply with their EBA and the VBIA?

PN83

MR FISHER: They have so in the past, Commissioner.

PN84

THE COMMISSIONER: I think, Mr Hoy, to assist the people you represent, CEA, there should be a conference that involves Boral because, I will tell you now - I will give some gratuitous advice to your client through you, if anything goes wrong out there they will soon shift the blame to them if they can. That is the sorry history of the building construction and civil engineering industry. Clients love to shift the responsibility and the blame wherever they can.

PN85

MR HOY: I accept your advice, Commissioner.

PN86

THE COMMISSIONER: Well, I am going to go further than that. I am going to order that those discussions take place.

PN87

MR HOY: Can I have a moment, Commissioner?

PN88

THE COMMISSIONER: Yes. You had something further, Mr Noonan?

PN89

MR NOONAN: Yes, and only for completeness, Commissioner, and that is - as I have said to you, we had only seen that third field report just now, but it does not appear to deal with the matters that were raised in the initial field report - - -

PN90

THE COMMISSIONER: Yes, I have already picked that up, Mr Noonan.

PN91

MR NOONAN: - - - 1, 2, 3, 4, 5 and 6 do not appear to be dealt with in either of the subsequent notices, Commissioner.

PN92

MR HOY: Commissioner, if I could just respond to that. There have been a number of reports - - -

PN93

THE COMMISSIONER: I bet there have.

PN94

MR HOY: If we wanted to go through the history of them - a lot of those issues were addressed in a report, I think on 30 April - - -

PN95

THE COMMISSIONER: I tell you what I will do, Mr Hoy. I do not wish to stop you and I accept what you are saying there.

PN96

MR NOONAN: Well, there are reports we still have not seen.

PN97

THE COMMISSIONER: Be quiet, Mr Noonan. To make sure there is no more confusion about who has got what piece of paper, and who has read what, and who needs the interpreter to understand what has been put there - and as to the responsibility of various persons and contractors and sub contractors on the site, apropos their relationship to the client Boral, the Commission orders that pursuant 111(1)(t) of the Workplace Relations Act that an immediate conference be convened between the relevant officers of the CFMEU, the relevant representatives of CEA and the relevant representatives of BRD to go through all of the reports, to assess the status of those reports, to progress any other issues between the parties and report back to this Commission at 10.00 am on Friday of this week. In the interim, if it is possible for any work to be progressed, especially in respect of BRD, that work is to be progressed. In other words, work is not to be unduly held up. Do you all understand that?

PN98

MR HOY: Yes, Commissioner.

PN99

MR NOONAN: A clarification Commissioner. Is it correct that Boral are not included in that order? I have taken the order down and I have not noted whether Boral were included in that order in terms of the conference.

PN100

THE COMMISSIONER: I said that CEA, BRD and Boral would have a conference.

PN101

MR NOONAN: I am sorry Commissioner. I had CFMEU, CEA and BRD written down.

PN102

THE COMMISSIONER: Well, I meant to include Boral as well because I have already said they are the client and I do not make the remarks facetiously about the blame being shifted and I am painfully aware of the position the BRD is in. It appears to me they may be getting the short end of the stick at the moment and I think that is unfair. Do you understand what I have told you?

PN103

MR HOY: Commissioner, can we just have a clarification of what - is there any limitation on the work to be held up.

PN104

THE COMMISSIONER: I do not know. I have not been to the site. I said where ever it is possible for work to progress, it is to progress. If between you as adults you cannot sort that out I will get my grandsons to sort it out for you and the eldest one is only 11. The Commission is adjourned.

ADJOURNED UNTIL FRIDAY, 11 MAY 2001 [11.34am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 REPORT FROM VICTORIAN WORKCOVER AUTHORITY DATED 27 APRIL PN53
EXHIBIT #A2 REPORT FROM VICTORIAN WORKCOVER AUTHORITY DATED 1 MAY PN54
EXHIBIT #R1 REPORT FROM VICTORIAN WORKCOVER AUTHORITY DATED 1 MAY PN60