C2002/581, Transcript of Proceedings [2002] AIRCTrans 1159 (9 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER McCUTCHEON

C2002/581

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Krueger Engineering for an order to stop or
prevent industrial action by the AMWU

ADELAIDE

9.00 AM, FRIDAY, 22 MARCH 2002

PN1

THE COMMISSIONER: I will take the appearances, please.

PN2

MR KLITSCHER: If it please the Commission, SA Employers Chamber of Commerce and Industry trading as Business SA, appearing on behalf of Krueger Engineering. With me is MR N. WILTSHIRE, General Manager, Krueger Engineering.

PN3

THE COMMISSIONER: Thank you, Mr Klitscher.

PN4

MR GRESTY: If it please the Commission, I appear on behalf of the Australian Manufacturing Workers Union.

PN5

THE COMMISSIONER: Thank you, Mr Gresty. Gentlemen, I've got two applications before me: a section 127(2) application to stop or prevent industrial action and a section 170MW to suspend or terminate a bargaining period. The applicants in both are Krueger Engineering. Which one do you want to deal with, Mr Klitscher?

PN6

MR KLITSCHER: Sir, if my friend is agreeable I think it might be appropriate to deal with the section 127(2) application, the application for an order to stop or prevent industrial action. Perhaps if I go through the necessary background to this matter. Sir, the company and the AMWU have in place currently the State registered enterprise agreement, being file number 303 of 2000. That agreement expires on 3 April this year. If it helps the Commission I've got a copy I will hand up.

PN7

THE COMMISSIONER: Yes.

PN8

MR KLITSCHER: Sir, it is a reasonably complex enterprise agreement which covers the company's operations at Harold Street, Mount Gambier, and also caters for the event that the company undertakes on-site engineering installation work. Several months ago the parties commenced negotiations to renew this State agreement and I can say to the Commission this morning those negotiations particularly between the company and its employees are well down the road. There is not a lot of distance to travel before hopefully agreement is reached.

PN9

Sir, on 28 February the AMWU issued a notice of initiation of a bargaining period and now has a registry number of BP2002/382. That initiation of a bargaining period excludes or purports to exclude the company's premises at 2 Harold Street, Mount Gambier. In fact, what it purports to do is to indicate the union wishes to have an enterprise agreement that covers one, Wynns Coonawarra Winery Estate in Coonawarra and any other establishment where similar work is carried out by Krueger Engineering employees other than 2 Harold Street. So we have in place a State registered enterprise agreement of which negotiations are underway. Then we have a notice of initiation of a bargaining period.

PN10

You will see that on 14 March 2002 the union lodged a notice in the Commission and sent a copy to the company of a notice of giving of authority to engage in industrial action under section 170MR of the Workplace Relations Act. It is my understanding and my advice to Krueger Engineering at the time that this was simply a matter that the union was notifying the parties that authorisation had been given. It is not a notice to take industrial action. If it were, of course, we might be here under different circumstances.

PN11

Sir, I would like to turn now to the events of 15 March 2002, indeed last Friday, at about 1 pm at the Wynns Coonawarra site where employees of Krueger Engineering were performing contract work. The work involved the installation of some additional and new tanks at that particular winery. The company was advised at 1 o'clock that the employees had left the job - walked off the job. They were advised by a Mr Solly, who is an AMWU organiser servicing the South-East, as I understand it. The issue was about an alleged safety concern. Whilst Mr Solly was unable to be precise to my client about what the safety concerns were, the employees remained off the job. Amongst those employees included an employee who is covered by a current Australian workplace agreement.

PN12

On Saturday 16 March 2002 at the request of Mr Solly, Mr Lockwood from the workplace services, was asked to attend the site to undertake inspections regarding safety issues. It is our understanding from Mr Lockwood that the site was found to be safe. On Monday, 18 March work did not commence. Pickets were in place by the AMWU and others and employees were unable to - were advised by the union not to work because of continuing safety issues. When questioned on the safety issues Mr Solly said there were numerous, but would not be specific. There was one mention of the failure to put a safety fence around the construction site. Sir, it is our belief that a construction site does not exist there. It is an engineering upgrade. It is installation of some tanks.

PN13

So we say the action taken by the union and its members, employees of Krueger Engineering, was unprotected action. There was no formal notice of intended protected action given and on that basis we say that the action is unprotected. You will notice the grounds of the section 127(2) application.

PN14

So to sum up, Commissioner, we have a State enterprise agreement in place, negotiations well down the track for a replacement agreement. We have a notice of initiation of a bargaining period lodged by the AMWU and shortly thereafter unprotected industrial action, in addition to which we say the union knowingly enticed an employee who is covered by AWA to participate in that industrial action.

PN15

THE COMMISSIONER: Mr Klitscher, wasn't this site subject to some Federal Court proceedings last week?

PN16

MR KLITSCHER: I believe it was. I wasn't involved in those. I understand that was between the AMWU and Southcorp.

PN17

THE COMMISSIONER: What was the washup of those proceedings?

PN18

MR KLITSCHER: I've no idea, Sir. I understand there was an injunction or a temporary injunction obtained by the company and the pickets were lifted, I believe, at about 10 pm Monday night. Since Monday night or from Tuesday employees have been working on site and still are working on site.

PN19

THE COMMISSIONER: Has Southcorp made any contact with your client?

PN20

MR KLITSCHER: I think my client has had discussions with Southcorp local management at Coonawarra and, yes, there have been some discussions.

PN21

THE COMMISSIONER: What is the washup of those in respect of how it would impact on this matter?

PN22

MR KLITSCHER: Well, there would be no impact on this matter. In fact, work has resumed as normal. Things have carried on normally and whilst at the moment there's no industrial action, certainly we're seeking the order to prevent - which the Act allows - any further unprotected industrial action. I understand that there have been discussions between Southcorp and the AMWU over a number of things. I'm not privy to what the end result of that was.

PN23

THE COMMISSIONER: Given that Southcorp are the client which your client is performing work for, have Southcorp given Krueger Engineering any directions as to how they shall handle industrial relations on site.

PN24

MR KLITSCHER: None whatsoever.

PN25

THE COMMISSIONER: So that is the basis on which you seek an order?

PN26

MR KLITSCHER: Yes.

PN27

THE COMMISSIONER: Of anticipated industrial action.

PN28

MR KLITSCHER: Yes.

PN29

THE COMMISSIONER: Given that a notice of a bargaining period has been filed, have there been any discussions between the company and the union about that?

PN30

MR KLITSCHER: There was a telephone conversation, I believe, between my client and Mr Solly in respect of that notice which my client put to the AMWU that, "What's this about? We've already got an EBA and the new one is well down the track of negotiations; why aren't we pursuing that?"

PN31

THE COMMISSIONER: This is an attempt by the union to move from one jurisdiction to another which is perfectly legitimate.

PN32

MR KLITSCHER: I don't believe that is true. I think this is an attempt by the union to embroil Krueger Engineering in a broader fight with wineries and particularly those wineries in which my client has an involvement with contract work. I don't believe it has anything to do with the attempt to move the established enterprise agreement for Krueger Engineering from the State jurisdiction to the Federal jurisdiction.

PN33

THE COMMISSIONER: In respect of the existing State agreement, is the union represented in the discussions?

PN34

MR KLITSCHER: Yes, but I will say that with the following comment, Sir, that there were good discussions. The discussions have continued with the employees but the union organiser, Mr Solly, who was involved in it has been absent from recent meetings. My client tells me his employees are very keen to continue to pursue those agreement negotiations because they don't want any delays to the finalisation of the agreement so of course they can pick up whatever financial rewards that might be offered in that agreement.

PN35

THE COMMISSIONER: Has Mr Solly indicated anything to an officer of the company that there is likely to be further industrial action?

PN36

MR KLITSCHER: No.

PN37

THE COMMISSIONER: All right, thanks, Mr Klitscher. Mr Gresty.

PN38

MR GRESTY: Yes, thank you, Commissioner. Without going through much of what my friend, Mr Klitscher, said, the Commission would want to know that there is no industrial action currently or is there likely to be into the future on that particular site as we do have an arrangement or an agreement in principle with Southcorp which in our view will overcome the current impasse that we have with respect to Krueger Engineering.

PN39

THE COMMISSIONER: Are you at liberty to tell me what that agreement is?

PN40

MR GRESTY: What Southcorp have said to us, Sir, in recognition of future construction work or installation work, as my friend likes to refer to it, they will talk with us and we will reach an agreement as to what would be the appropriate industrial instrument to regulate our particular project, Sir.

PN41

THE COMMISSIONER: Like a site agreement.

PN42

MR GRESTY: Yes, Sir.

PN43

THE COMMISSIONER: So they have given that undertaking.

PN44

MR GRESTY: We have that undertaking. That was Tuesday or Wednesday of this week, I think.

PN45

THE COMMISSIONER: Right. Is it for that reason that you say there is no current action and I think the second thing you said was "nor is there likely to be".

PN46

MR GRESTY: No, Sir.

PN47

THE COMMISSIONER: Is that the reason why you can make those two statements?

PN48

MR GRESTY: Absolutely. Perhaps by way of explanation for the bargaining notice period - bargaining notice was served on a number of companies. Because of the applications for 127 orders leading to 45Ds we thought we would take the precaution of logging a number of these companies and this was before we had the conversation with Southcorp. Had we have done it in the reverse there would have been no need to serve these various bargaining notices on various companies. So the issue has been resolved. There is, in my view, nothing for this Commission to address.

PN49

THE COMMISSIONER: Nothing to address by way of Mr Klitscher's application?

PN50

MR GRESTY: That is what we would say, yes.

PN51

THE COMMISSIONER: Mr Klitscher, it sounds to me you might be at a little bit of a disadvantage in the sense that you don't know what Southcorp have said to the union.

PN52

MR KLITSCHER: I don't feel disadvantaged, Commissioner, and whatever discussions have taken place between Southcorp and the unions is of little concern to my client. I say that on this basis: that in the future when my client is involved in work with Southcorp or any other place, whether it be a winery or some other industrial site, that they would be bound by, one, their contractual obligations to the contractor or the builder or whoever it might be. If there is in place an arrangement at that particular site that requires people to be paid something different - and my client is contractually bound to do that, they will do that. Not a problem. But I draw the Commission's attention to the fact that that is already catered for in the State agreement that my client has with the union, this union, and its employees.

PN53

THE COMMISSIONER: The situation I face this morning is that my jurisdiction is limited to the scenario where industrial action is happening or is threatened, is impending or probable.

PN54

MR KLITSCHER: Yes.

PN55

THE COMMISSIONER: Now, in an answer to a question from me, you indicated Mr Solly hasn't threatened any industrial action.

PN56

MR KLITSCHER: Has not advised the company, no.

PN57

THE COMMISSIONER: No.

PN58

MR KLITSCHER: But he never does, Commissioner.

PN59

THE COMMISSIONER: Well, but he has not and Mr Gresty tells me there is no current action and nor is there likely to be; that an agreement has been struck with Southcorp. He says the issue that was between the parties is now resolved as a consequence of those discussions with Southcorp.

PN60

MR KLITSCHER: Between which parties, Commissioner?

PN61

THE COMMISSIONER: Well, in this sense - this is why I asked if Southcorp had had any communication with your client.

PN62

MR KLITSCHER: No, and we wouldn't expect them to.

PN63

THE COMMISSIONER: Well, I would have. If they had a dispute on their premises and your client is coming on to their premises to perform its work, I would have thought there would need to be some discussion.

PN64

MR KLITSCHER: Well, Commissioner, this dispute that I've brought before the Commission - the application is to do with the union and Krueger Engineering.

PN65

THE COMMISSIONER: Yes.

PN66

MR KLITSCHER: That is all I am asking you to look at.

PN67

THE COMMISSIONER: The difficulty I've got is I have a senior official of the union saying to me there is no current action nor is there likely to be. The issue that gave rise to the action is now resolved.

PN68

MR KLITSCHER: Commissioner, I take on board what you say.

PN69

THE COMMISSIONER: My difficulty is acting under the Act.

PN70

MR KLITSCHER: Yes, I understand that. Perhaps I could help you with that.

PN71

THE COMMISSIONER: It seems to me that it might be useful if you could have some discussions with whatever officers of Southcorp are dealing with their industrial relations on their site as to where they see all this going.

PN72

MR KLITSCHER: Certainly we can do that and are happy to do so. Sir, perhaps I can put this to you. I understand where you are coming from in relation to your jurisdiction. However, we would be willing to perhaps set aside this matter, this application, for now because with the greatest respect to my friend that I've known for some time and I know him to be a man of his word, he has given an undertaking there's not likely to be. But simply my client can't accept that because the experience of the past has shown that that is really worth nothing. It has nothing to do with my friend. I know he gives it in good faith and he is a man of his word. But we are talking about something that may well be out of his control. So we would be happy to put to you, Sir, to perhaps set aside this matter and if there is - in the unlikely event, as my friend has assured us all - some further industrial action, we will ask that this matter be brought back on before you.

PN73

THE COMMISSIONER: You mean adjourn it?

PN74

MR KLITSCHER: Adjourn it. Yes, sorry, Commissioner.

PN75

THE COMMISSIONER: So it remains alive and in the event of there being some action then you would notify immediately and we would - as in accordance with the act - act as quickly as we could.

PN76

MR KLITSCHER: Yes. Now, that is an option perhaps I put to you. However, that might be subject to what I might say in respect to the second application that is before you this morning.

PN77

THE COMMISSIONER: Mr Gresty, what is your view on my adjourning the section 127(2)?

PN78

MR GRESTY: We would say, Sir, there's no need for you to adjourn it. If the word in my statement is not strong enough I can reiterate that there will be no action taken with respect to that site and if the current enterprise agreement is deemed to be appropriate for covering such work there will be no activity. We say this to the Commission and we don't say it lightly. There will be no industrial activity on that site as a result of the agreement we've got with Southcorp for that particular site and other sites. As a consequence of that, there will be no industrial activity.

PN79

THE COMMISSIONER: Mr Klitscher, what do you say?

PN80

MR KLITSCHER: My submissions before still stand. I accept what Mr Gresty has said, however, I think that experience has shown us in the past that that means zip when it comes to the crunch.

PN81

THE COMMISSIONER: What is the length of the contract likely to be? It is tank building, isn't it, or something like that?

PN82

MR KLITSCHER: Installation, not building. It is installation of tanks.

PN83

THE COMMISSIONER: Installation of tanks. What is the likely duration of it.

PN84

MR WILTSHIRE: Sir, it is still about two weeks away.

PN85

THE COMMISSIONER: For completion.

PN86

MR WILTSHIRE: For completion - about two to three weeks.

PN87

MR KLITSCHER: Commissioner, after that there may be another job somewhere else where my client is working. So it is not as if this is the last project ever to be undertaken by my client. There are many other sites.

PN88

THE COMMISSIONER: I'm of a mind to adjourn it for one month and then if it is not reactivated strike it out.

PN89

MR KLITSCHER: I would be happy with that.

PN90

THE COMMISSIONER: Mr Gresty?

PN91

MR GRESTY: Well, I think we have said what we have to say. If the Commission is of a mind to adjourn it, it will be adjourned.

PN92

THE COMMISSIONER: I propose to adjourn this section 127(2) matter for one calendar month. If there is no notification inside that calendar month, the matter will be struck out at the completion of that month.

ADJOURNED ACCORDINGLY