C2002/1837, Transcript of Proceedings [2002] AIRCTrans 1502 (3 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT03584

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2002/1837
C2002/1839

FLUOR GLOBAL SERVICES PTY LTD and
ANOTHER

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
and OTHERS

Notifications pursuant to section 99
of the Act of a dispute concerning the
total cessation of work and withdrawal
of labour by employees at the Hazelwood
Power Station site effective 3.15 pm 18/4/02
and a stoppage of work and withdrawal of
labour over an alleged safety issue at the
Hazelwood Power Station

MELBOURNE

2.55 PM, FRIDAY, 19 APRIL 2002

PN1

MR R. McSWEENEY: I appear from Fluor Global Services Australia Pty Limited.

PN2

MR J. HOY: I am from the Australian Industry Group. I appear on behalf of Diamond Power. With me I have MR G. DONNETT from Diamond Power.

PN3

MR R. SMITH: I seek leave to intervene in this matter here before you today on behalf of Alstom Power. Alstom Power is a contractor engaged at Hazelwood Power Station and our employees, at this point of time, are involved in the stoppage that is happening at the moment.

PN4

THE COMMISSIONER: Thank you. There is no-one here to object it seems to your appearance other than the other employers, is that right? So for the purposes of this proceeding, until such time or if such time we go to other participants. I have listed both of these matters because on their face obviously they relate to the same matter. Mr Hoy, do you want to address me first, or Mr McSweeney?

PN5

MR McSWEENEY: Thank you, Commissioner. I don't know how far we will get today in the absence of the unions but certainly at the outset, Commissioner, if I could just give a brief outline as to the events that have occurred over the past two days.

PN6

THE COMMISSIONER: I would be grateful because I know nothing of the matter.

PN7

MR McSWEENEY: Okay. A decision was made by Hazelwood Power to take out of service, Unit 3, yesterday morning due to a generator hydrogen leak on a particular valve of that unit. Following that decision a meeting was held of contractors, employees, with the exception of Fluor at around mid-day yesterday. At that meeting I understand it was decided that employees would leave site on the grounds of an alleged health and safety issue and with respect to Fluor, of which I am here today, the decision was made that Fluor employees would continue to work as it had been agreed by company management on-site and our health and safety representatives that a health and safety risk did not exist with respect to our work on the site.

PN8

Approximately at about 2 pm yesterday an official of the AMWU, Mr Steve Dodd, attended the site or was already on site but attended our work place and requested that he meet with our employees. That meeting went ahead at 2.30 pm yesterday. It proceeded for about 45 minutes and around 3.15 pm Fluor management were advised by Mr Dodd and our Work Place representatives that they were withdrawing their labour and that they would return to site, not return to work but return to site, this morning at 9.30 am.

PN9

A claim was then placed on the company for payment of that period of time for the remainder of the working day yesterday and for the portion of time missed this morning. The union has claimed that there is a health and safety issue that exists, and that is despite Fluor's health and safety representatives confirming that a risk was not present and that Fluor's works should continue.

PN10

Clearly, Commissioner, what then occurred this morning was that employees did return to site at 9.30. We had a number of discussions with our Work Place representatives. I believe a meeting was held - a collective meeting of contractors, employees and the union representatives was held at that time and our position, which was that we were not going to pay for the action and the time that was lost due to the action taken, subsequent to that announcement to those employees I believe a further decision was made that they would withdraw their labour for the remainder of the day and that they would return to site at 10 am on Monday, 22 April.

PN11

Clearly, Commissioner, as I have pointed out, Fluor went through a number of steps in order to address any concern that our employees held about the taking out of service of Unit 3.

PN12

THE COMMISSIONER: Can you explain to me what the nature of the allegation is about the health and safety.

PN13

MR McSWEENEY: I believe it is to do - yes, I believe it is to do with the communication process that was adopted to inform contractors and their employees that the unit was being taken out of service due to this hydrogen leak, and on that basis the unions have sought to have discussions with Hazelwood about that communication process, but nonetheless have withdrawn their labour or our employees have withdrawn their labour.

PN14

I should if I may, Commissioner, point out that with respect to the communication process, Fluor held - Fluor received notice of the intended Unit 3 closure at - on Wednesday. We then held a meeting with our health and safety reps on that Wednesday and informed them of the preventative action that was being taken. A further meeting was held again on Thursday morning at approximately I think it was 7.30 in the morning and then when notice was received that there was a meeting going to occur I believe, or that there was further action pending from our employees, a further meeting was held at approximately 10 am with our health and safety representatives and our work force management at site and it was at that meeting that Paul agreed that there was not a risk to health and safety and that work should continue and it did indeed continue until 3.15 that afternoon.

PN15

Now, Commissioner, in absence of the unions, I cannot see a point in us obviously seeking to adjourn this matter and given that our employees currently do intend to continue their industrial action without providing us with a return to work date - we understand they are returning to the site on Monday but not to work, we would clearly request that the Commission exercise your powers under section 111(1)T and issue a direction that the industrial action that is occurring cease. Thank you.

PN16

THE COMMISSIONER: Thank you. Mr Hoy.

PN17

MR HOY: Thank you, Commissioner. Commissioner, I would support the submissions of Mr McSweeney on behalf of Fluor. In respect to Diamond Power, Commissioner, they were advised on Wednesday evening I believe of a hydrogen leak from Unit 3. There was a morning meeting with the shift managers at Hazelwood and the Unit was taken out of service.

PN18

Prior to that meeting, the health and safety rep for Diamond Power approached management and asked that the employees remain in the work shop rather than go on to the job at hand. That was agreed to. At approximately 10.30, when the Unit had been taken out of service, the employees met again with management of Diamond Power and went back on the job.

PN19

Then about lunchtime, about 12.30, they were contacted by the union and asked to go to a meeting at the site where they were instructed to leave the site on the basis of a health and safety issue. No details of the health and safety issue has been put to management other than as Mr McSweeney has already said, it appears to be a communication issue.

PN20

THE COMMISSIONER: But it is not - but as I understand what Mr McSweeney said, and correct me if I am wrong, it was a past event of communication. It is not an on-going communication problem.

PN21

MR McSWEENEY: Yes, that is correct, Commissioner.

PN22

THE COMMISSIONER: Yes, yes.

PN23

MR McSWEENEY: Yes, that is - certainly, Commissioner. The other issue that the company faces is that there is other work available that employees could have been transferred to if they believed there was an unsafe area. Even to the extent that the company had work available for one employee at Yallourn for today, but were denied the opportunity to transfer that employee to the Yallourn work.

PN24

If there is a genuine OH and S issue, then the company should be allowed to identify other areas where employees can be placed to work. Certainly in respect of Diamond Power they do have other work available. It is our belief, that it is a communication issue between the unions and Hazelwood and they are seeking to inflict some punishment on Hazelwood through penalising the contractors.

PN25

We would also support the application that you issue a direction to the employees, to the unions, to return to work and if there are issues then they should be followed in accordance with the disputes procedures, if the Commission pleases.

PN26

THE COMMISSIONER: Thank you.

PN27

MR HOY: Thank you. I want to hand up a letter that has been sent to the company today from the client - Hazelwood Power and I suggest that could you read it for a second.

PN28

THE COMMISSIONER: Sure.

PN29

MR HOY: I have made copies available to - - -

PN30

THE COMMISSIONER: Yes.

PN31

MR HOY: Thank you, Commissioner. I think that gives you a bit of a background of how the client sees it current position. From Alstom's position yesterday they were alerted to this hydrogen leak and they consulted the OH and S committee and those consultations with the committee transpired between 9.45 and 11 o'clock. Whilst those discussions were happening with our other committee our employees involved were sitting in the smoko sheds and they stayed there concurrent. The OH and S committee accepted that there was a communication problem and that resolved the matter and as far as we were concerned the employees are going to go back to work.

PN32

There was a meeting called. There was a couple of union officials there, I think you have heard the name of one particular chap and at no time did Alstom ever indicate to its employees that there was going to be deduction of pay for the lost in fact they were told they would be paid for the time. They were sitting in the sheds whilst we were doing this matter before the OH and S committee. And this is the absurdity of this whole dispute - there obviously must be something behind it - I don't know what they then left the site after the union meeting on the basis of to prove some point, but the issue concerning payment of lost time - they were being paid, so why leave the site to prove a point to get paid when they were going to be paid anyway.

PN33

Now this is absurd and as you see by that letter, the damages in this current dispute, plus the loss of electricity generation - it is very important to the State of Victoria. It is these sorts of disputes the state can afford not to have and what Alstom is saying here is, we support the submissions that are being put before you here today, in particular we say a strong a direction under 111T that the employees of the Alstom and the other contractors should resume work forthwith.

PN34

And we say that this matter is so important I notice not one union official has turned up here. Not one. I am putting it to you, Commissioner, that the matter should be brought on as a matter of urgency tomorrow morning because if you look - by Monday, another meeting at 10.30. More lost time. Be back here Monday afternoon. What are we going to argue. Payment of lost time. You know where that is going to go. We are not going to sit here and breach the Act, particularly in the circumstances that is happening at moment elsewhere and to me the company feels that this matter should be expeditiously dealt with by the Commission. It is in the power generation industry, it is not in the service industry and it has the likelihood of costing Hazelwood Power a tidy sum of money as you can see the figures there on that paper. Thank you, Commissioner.

PN35

THE COMMISSIONER: Is there something else, Mr McSweeney?

PN36

MR McSWEENEY: Sorry, Commissioner. If you were so inclined to issue that direction can I just point out one administrative requirement that requires rectification. On our dispute notification you will notice that there that Fluor Global Services Australia Pty Limited, which is the employee company, notified you and then obviously underneath is says that there is an alleged industrial dispute between Fluor Global Services Pty Limited. That should be Fluor Global Services Australia Pty Limited.

PN37

THE COMMISSIONER: Fluor Global Services Australia Pty Limited.

PN38

MR McSWEENEY: If that could be noted, thank you.

PN39

THE COMMISSIONER: Thank you. Have we got an additional appearance?

PN40

MR G. WARREN: If the Commission pleases, I appear on behalf of the Australian Manufacturers and Workers Union. Sir, I appear on behalf of the CEPU and the various applications.

PN41

THE COMMISSIONER: Mr Warren - - -

PN42

MR WARREN: I apologise for being late.

PN43

THE COMMISSIONER: Mr Smith, has sought leave to intervene in this matter. In the absence of unions I granted him leave so long as this matter was proceeding. Do you have an objection to him, then intervening and remaining?

PN44

MR WARREN: No, sir.

PN45

THE COMMISSIONER: Thank you. In that respect, Mr Smith, leave is granted.

PN46

MR SMITH: Thank you. Thank you, Commissioner.

PN47

THE COMMISSIONER: Mr Warren, you weren't here to hear the submissions of the employers, do you want an adjournment for a brief minute to talk to them, or do you - are you totally familiar with what is before you?

PN48

MR WARREN: No, I am not.

PN49

THE COMMISSIONER: Look, I think we will take a 15 minute adjournment and you can have a discussion with Mr Warren. You can tell him what has been said and what is being sought. We will reconvene at 3.30.

SHORT ADJOURNMENT [3.15pm]

RESUMED [3.48pm]

PN50

THE COMMISSIONER: Just before you start, Mr Warren, it might - just to clarify your appearance, you are appearing on behalf of AMWU, CEPU and CFMEU?

PN51

MR WARREN: CFMEU - Federal Division

PN52

THE COMMISSIONER: Yes. Do you want to address me?

PN53

MR WARREN: Yes. If the Commission pleases, and thanks for the time to get limited amount of information and being the disadvantage I guess of what the employer may have already said on transcript, I can report to the Commission that a few things have happened in probably the last 24 hours and some of those, from what my instructions are, is that currently on site there has been agreement Hazelwood Power, the AMWU, the ETU, the CFMEU and the appropriate health and safety reps or site representation are on site at this point having an investigation into the hydrogen leak that has been on site that under - my instruction is that it was a serious or has been a serious problem.

PN54

When we pursued, and in particular, Hazelwood Power they could not guarantee us that the place was a safe working area. That question was specifically asked. That - it was said that there was inadequate barricades. They could not - Hazelwood Power could not identify safe working limits or whether the hydrogen leak was within those limits and what we have said on site is that the unions are available to sit down tomorrow or over the weekend to resolve the issue in relation to the health and safety issue.

PN55

THE COMMISSIONER: I guess you are familiar with the area and you would know, but it was Mr Smith's submissions, on behalf of Alstom and he tabled a letter that the loss per day is a minimum of $450,000. There is a copy of the letter there.

PN56

Also, as the employer representatives would have told you, the application before me today was to seek directions that people return to work immediately without restriction and it was - it was put to me that in the absence of the unions that the matter should have been reconvened in the morning. You are giving an undertaking that the unions will meet with the employers tomorrow?

PN57

MR WARREN: Or over the weekend, yes. I understand - from what I understand is that the hydrogen leak or the Unit in question is now no longer going. The Unit has actually been taken off, which he tells me there was definitely a problem on site in relation to that.

PN58

MR SMITH: No, no. It is an outage.

PN59

MR WARREN: In Unit 3?

PN60

MR SMITH: There was an outage designated to go off on Thursday evening, anyway, so you cannot use that as a - - -

PN61

MR WARREN: Well, my instructions are that that is the reason why the Unit has come off, because of a hydrogen leak.

PN62

THE COMMISSIONER: In any event that doesn't seem to me to be an on-going problem is it, if it is off-line.

PN63

MR WARREN: Not that I am aware of.

PN64

THE COMMISSIONER: Mr McSweeney, did you - - -

PN65

MR McSWEENEY: Thank you, Commissioner. A couple of comments, if I may. Mr Warren said that the unions are prepared to meet with the employers over the weekend as I understand it to address the health and safety issue, is that correct? Commissioner, within Fluor it was agreed that yesterday morning at two separate meetings of our health and safety representatives and our management that there was no health and safety risk, particularly to our guys who were working in and around that area anyway and I don't think that issue either way, whether Hazelwood Power is meeting with the unions right now to address the health and safety issue of the alleged leak whether that addresses at all our concerns that our employees have withdrawn their labour and are still out until what we believe to be Monday morning, with no guarantee that they are going to return to work.

PN66

Certainly, we would see that any discussion over the weekend about the health and safety issue is not going to help get these employees back to work because those items with respect to the health and safety issue had already been resolved within Fluor yesterday.

[3.55pm]

PN67

MR HOY: Commissioner, we support the submissions of Mr McSweeney. We would still pursue a direction from yourself that all bans and limitations be removed and employees be available to return to work immediately. We are thankful that the unions have offered to continue discussions with the employers over the weekend and I am sure the employers will take that up but we say it is still an issue that in respect to any claims for lost time, Commissioner, we don't say it was an imminent risk to health and safety. Certainly the employers never had an opportunity to put their employees in other areas where, allegedly, there was other safe areas in which to work, if the Commission pleases.

PN68

THE COMMISSIONER: Mr Smith.

PN69

MR SMITH: Thank you, Commissioner. Firstly, I must say here for the record that this ..... that has been raised about unit three has been taken out because of safety reasons. There was a planned outage on unit three and it was to come out on Thursday evening anyway. Now everybody knows that. I am not blaming Mr Warren. I think Mr Warren has been given the wrong drum on that one, Commissioner. However, from this company's position the safety issues have been dealt with and have been resolved and if the - - -

PN70

THE COMMISSIONER: And employees suffered no loss.

PN71

MR SMITH: Employees suffered no loss and it was the union's officials that wanted to get the employees out. For some unknown reason they wanted to get the employees out. Employees were not suffering any loss of pay and the OH&S Committee, prior to people being pulled off the site, came to resolve the issues and the station management knew that as well as the contractor. Thank you, Commissioner.

PN72

Commissioner, our position is we support the submissions made by the two other employers here today and seeking strong directions in accordance with 111T of the Act. We are quite happy to meet with the unions and discuss what matters they have. However, the employees should return to work first. Thank you, Commissioner.

PN73

THE COMMISSIONER: Well I think it - I address everybody on this. I think it is axiomatic that if you are having discussions between the parties about health and safety matters, you are directly addressing a return to work. Mr Warren.

PN74

MR WARREN: Just a couple of comments in relation to Fluor Daniel. My instruction was it was actually the Fluor Daniel people that actually grabbed the officials and said we have got a problem. That is on my instruction, and that the investigation - we say there is currently an investigation of the issue and that Work Safe have been notified of the issue and will make their own investigation, so I guess we are all in the hands of that to say, you know, whether there was or wasn't, but at the time when we asked Hazelwood Power, who is the client on site, whether he could provide a healthy and safe workplace, and the answer was no. In fact they had stopped cranes, stopped vehicles - - -

PN75

THE COMMISSIONER: When do you say that occurred?

PN76

MR WARREN: That happened at 10 am yesterday. Yesterday morning. The question was asked of the on site safety rep.

PN77

THE COMMISSIONER: That may not be the case now, of course.

PN78

MR WARREN: It may not be, yes.

PN79

THE COMMISSIONER: Yes, Mr Smith.

PN80

MR SMITH: Mr Marshall, who is here on my right, he feels so strongly about those comments raised on the record by Mr Warren, he would like to be able to respond to you at this hearing of what the actual situation was.

PN81

THE COMMISSIONER: Well certainly. It might be of assistance to Mr Warren as well. Yes, Mr Marshall.

PN82

MR MARSHALL: Thank you, Commissioner. I was actually present at a meeting where Greg Warren's colleague, Steve Dodd, was present plus Rod Hart from the FEDFA and the Occupational Health and Safety Officer from Hazelwood, whose name is Mr Brian Hastings. Mr Hastings was able to tell us the areas that had been barricaded off, the reasons why vehicles weren't allowed in the basement of the unit three area only, the readings for the amount of hydrogen that he could detect with the meter, which were nil, the rated gas leak, the rated gas leak currently, the rated gas leak yesterday. He was also able to tell us that he couldn't get a gas monitor up into the roof area of the turbine house and therefore he had the crane isolated over that unit only and the unit adjacent, because it is a whole stage isolation, to ensure that an overhead travelling crane did not pass in the area in case there was a leak up in that area that had pooled hydrogen in that area.

PN83

So I believe that Hazelwood Power were able to clearly define the scope of the leak and the source of the leak - they knew which valve exactly it was, how far the leak was providing detectable hydrogen from the source of the leak, the area that had been barricaded and the area that had been isolated just as a precaution because it couldn't be tested. Thank you, Commissioner.

PN84

THE COMMISSIONER: So on the basis of that, are you saying that as of then, a return to work was beyond - - -

PN85

MR MARSHALL: Well this was all done on the Wednesday, when the leak was really starting to - the leak is monitored by the amount of hydrogen used to top up the generator, so they knew that a leak was present. The area had been monitored to find the source of the leak with a gas monitor and at that stage, Fluor's personnel who were working in that area of the power station were - that is when that engagement that Mr McSweeney had previously defined took place. At all times, I believe, Hazelwood were very aware and very open with the gas leak. The unit was taken off line whilst we were having a meeting about approximately 10.30. We could hear it coming down from our office. It was due to come out that night. It came out in the morning because of the leak but it was coming out of line in any case.

PN86

THE COMMISSIONER: Thanks Mr Marshall. Do you want a last say, Mr Warren and bearing in mind that I now have to make my decision about the application before me.

PN87

MR WARREN: Yes, just a couple of things. There was a safety bulletin that I understand was put out 24 hours prior to people leaving the site and from what I understand and the mood of the mass meeting was that there was a safety bulletin put out. It definitely hadn't been put out or filtered down to the troops to say that there was a potential problem and that everything had been put in place.

PN88

THE COMMISSIONER: Is this the bulletin that you are talking about?

PN89

MR WARREN: I haven't seen it. There was a safety bulletin put out on the e-mail system, I understand. I am not sure whether it went on the notice board but I understand the e-mail system and this information is in this bulletin. I will just take a second to read it before we go on. I am not sure whether that means that stage two control room is in the same area as the hydrogen. Is that to say that people - and I think this is saying that all people need to go through that area to get to the control room? But the basic - well my instructions area that this safety bulletin did come out 24 hours prior to yesterday and that the information that was in this safety bulletin wasn't filtered all the way down to the troops and not all the troops or the contractors on site - some may have known but others did not know of that, other than that they knew that in place there was some barricading that wasn't sufficient and all the answers were not being answered or they just didn't know about it and I dare say - well I would like to say if there is one official down there that has been able to send all contractors home, that is a mighty feast. I would say there is a heap of confusion gone on site and the information hasn't got back to the troops through to supervisory levels and through the health and safety reps. That may not be the case in some contractors but predominantly, and it probably must be the majority of them, that that be the case.

PN90

THE COMMISSIONER: But if there is a problem about that communication process, there is a procedure for dealing with that. In respect of the unit going off line, it has been off line now for a day and half, hasn't it?

PN91

MR WARREN: Yesterday afternoon.

PN92

MR McSWEENEY: Yesterday morning it did come off line.

PN93

THE COMMISSIONER: Well it has been off line for some time and it seems to me that there ought to be steps being rapidly taken to get people back to work, shouldn't it, and if there is an issue, it can still be dealt with.

PN94

MR WARREN: That may be the case, Commissioner. I don't know. It could well be the case.

PN95

THE COMMISSIONER: Well I think you need to give, on behalf of the union, some encouragement to these employers that that will be the case.

PN96

MR WARREN: All I know, Commissioner, is that the unions have said that they will sit down with the companies tomorrow, tomorrow morning, or sooner if that be the case, and go through and resolve the issues. Now if that is a matter of sitting down and saying yes, yes, everything is sweet and then we will all join hands and get everyone back to work.

PN97

THE COMMISSIONER: Well when you say resolve the issues, it may well be that there is still an outstanding argument about the consultation process and in my view, and I am trying to make it clear to you so you take it back to the unions, that that is not a reason for a continuing restriction or limitation on work. There are procedures for dealing with that and that can come before me, if that is the case. Yes, Mr McSweeney.

PN98

MR McSWEENEY: Thank you, Commissioner. If I could just point out on that item alone, Commissioner, that this morning it was put by our site management to our representatives, our union representatives, that we had this hearing listed for this afternoon and that I should point out also that this morning's meeting and subsequent walk off site was not related to there being a health and safety issue. Our understanding is that it was related to the fact that we had not conceded that our employees would receive payment for the time that they had lost so far.

PN99

THE COMMISSIONER: Well again, that is a matter that can be dealt with through the dispute resolution procedure and if need be, referred to the Commission. Yes, Mr Smith. You seemed anxious to get my attention.

PN100

MR McSWEENEY: Sorry, if I could just finish off on that, Commissioner. This morning we did offer the hearing this afternoon as a means to address any items that may have arisen out of this morning's meeting. That was rejected. Thank you.

PN101

THE COMMISSIONER: Thank you. I have this following recommendation to make and I will print it and provide it to the parties. This recommendation is put in the strongest possible terms. That the unions meet urgently with the relevant employers represented here to arrange:

PN102

1. for a lifting of all bans and limitations at the earliest practicable opportunity, subject of course to proper OH&S clearances and assurances;

PN103

2. that all outstanding issues be referred via the dispute resolution procedure with, if need, referral to this Commission for assistance;

PN104

3. that there be no illegitimate industrial action before referral to the Commission and the Commission will re-list urgently, on request, these matters if required.

PN105

This matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [4.12pm]