C2002/1919, Transcript of Proceedings [2002] AIRCTrans 1573 (9 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2002/1919

CALTEX AUSTRALIA LIMITED

and

THE AUSTRALIAN WORKERS' UNION

Notification pursuant to Section 99 of the Act
of a dispute re allocation of work to employees

BRISBANE

3.15 PM, WEDNESDAY, 24 APRIL 2002

PN1

THE COMMISSIONER: Can I take the appearances, please?

PN2

MR M. COONAN: If the Commission pleases, I appear again with MS McCARTNEY, MR PHILLIPS and MR ZULLI. I seek leave in terms of the Act to appear on behalf of Caltex Refineries, may it please the Commission.

PN3

THE COMMISSIONER: Thank you, Mr Coonan.

PN4

MR B. SWAN: If it please the Commission, Swan, initial B. for the Australian Workers' Union. Commissioner, I would tender my apologies for the attire, I was caught at relatively short notice this afternoon. I have just made my way down to the Commission now.

PN5

THE COMMISSIONER: I know that you are normally more than suitably dressed, Mr Swan.

PN6

MR SWAN: Thank you.

PN7

THE COMMISSIONER: Considering that you have a mother in the precincts, I know that I don't need to supervise you.

PN8

MR SWAN: Well, I didn't want to offend her either, Commissioner.

PN9

THE COMMISSIONER: Mr Coonan, it is your application.

PN10

MR COONAN: If the Commission please, has leave been granted?

PN11

MR SWAN: No objection, Commissioner.

PN12

THE COMMISSIONER: All right. On that basis and, Mr Coonan, I know that you have some history with this particular matter and you were briefed to appear, I will grant you leave to appear.

PN13

MR COONAN: Thank you, Commissioner.

PN14

THE COMMISSIONER: And having said that, since I have been allocated this matter, the parties would be aware that I am not completely aware of the history of this particular dispute, whilst I am familiar with some of the occurrences at the Caltex site, so I would ask you to ensure that if you are assuming there is a particular history in relation to this file, to just make me aware of it.

PN15

MR COONAN: Thank you, Commissioner. There is, I suppose, Commissioner, not a history, but there are a number of other matters which have conspired to cause the current problem. The dispute was listed at the request of the company on this basis: the employees are covered by an award and by a certified agreement, and there are specific provisions in both documents that employees are required to carry out - I will just get the exact terminology for you, Commissioner:

PN16

They must be ready, willing and available to comply with all their job description and carry out all lawful instructions of the company.

PN17

And the matter has arisen this way, Commissioner: as a result of the industrial action taken by employees of another employer who was a contractor at the refinery, there resulted in a reluctance by employees of Caltex to carry out certain work which was normally done by the employees on strike. Similar application was made previously to Commissioner Hoffman in relation to a refusal by maintenance employees of Caltex Refineries to carry out work which would normally be done by employees of Transfield and its subcontractors whilst they were taking industrial action.

PN18

The same matter has arisen here, or a related matter, I suppose, is a better way to put it, Commissioner. There is an amount of work to be done by operation staff on this occasion, not maintenance staff, so it is operation staff who are employed by Caltex Refineries and who are members of the AWU. There is, as we said, and I seek leave at this stage to refer to the affidavit of Mr Sunny Phillips, which was filed in the Commission. Can I seek leave to read that and have it marked as an exhibit, if the Commission pleases?

PN19

THE COMMISSIONER: Yes. Mr Swan, do you have a copy of that?

PN20

MR SWAN: I do, Commissioner, yes. I have no objections.

PN21

THE COMMISSIONER: Thank you. Yes, Mr Coonan?

PN22

MR COONAN: Thank you, Commissioner. As Mr Phillips states in paragraph 5 that the Transfield employees are currently on strike and there is work that needs to be done at the refinery by - - -

PN23

THE COMMISSIONER: Sorry, Mr Coonan, where are you reading from?

PN24

MR COONAN: Paragraph 5.

PN25

THE COMMISSIONER: Thank you.

PN26

MR COONAN: Thank you. In the second sentence: Transfield employees are currently on strike and there is work that needs to be done through ..... by its employees, and that work has been delayed. And where we refer to its employees there, we are talking about Caltex, not Transfield. And we are given an instance there as the net gas chloride treater, and the desultor vessels, and work would normally be done by Transfield employees, and whilst there is an preparedness by some employees to carry out the work, as is indicated in paragraph 9 to enable the work to be completed, permits must be issued in accordance with the Caltex permit system.

PN27

The permit system is a way of carrying out hot work, cold work, and confined-space work, and it must be done in accordance with a workplace health and safety permit system. And as it presently stands, that work has been in effect black-banned, and that is affecting the operations of the refinery as stated by Mr Phillips in his affidavit. I am also advised, and from instructions to that, there was a further complication in relation to jet-fuel tanks in relation to watering down of those tanks which is also creating a production problem which is impacting, and will shortly impact significantly on the refinery operations.

PN28

THE COMMISSIONER: Who would normally undertake all of that work, Mr Coonan?

PN29

MR COONAN: Sorry, Commissioner?

PN30

THE COMMISSIONER: Who would normally undertake all of that work?

PN31

MR COONAN: Well, if the Commission pleases, we had the same sort of issue before Commissioner Hoffman and - sorry, Commissioner, I will just get - yes, Commissioner, the work would normally be done by a subcontractor to Transfield, a company called Contract Resources.

PN32

THE COMMISSIONER: Thank you.

PN33

MR COONAN: And as I say, that work is being impacted by the dispute and whilst it is work that would be done by those employees, it is also work that can be done by operational employees that are employed directly by Caltex, and that is what we are trying to achieve, Commissioner. The indications are that the employees will not do it without direction to do so, and the application has been filed by Caltex to seek to have the Commission intervene in this matter, and to have the work directed in accordance with the provisions of the award - sorry, the certified agreement and the award.

PN34

If the Commission pleases, that is about as far as we would like to go on transcript. We would like to move into conference in due course, but before I do so, I would just tender a draft direction which we would be seeking as a result of the hearing.

PN35

THE COMMISSIONER: Were you also seeking to tender this document then, Mr Coonan, the affidavit of Sunny Phillips?

PN36

MR COONAN: Yes, Commissioner, I was.

PN37

THE COMMISSIONER: All right. And that has got other documents attached to it, has it?

PN38

MR COONAN: It has a copy of the certified agreement and the award attached, Commissioner.

PN39

THE COMMISSIONER: Right. Is there any objection to that being as an exhibit, Mr Swan?

PN40

MR SWAN: Not at all.

PN41

THE COMMISSIONER: Thank you. I will mark that exhibit 1.

EXHIBIT #1 AFFIDAVIT OF SUNNY PHILLIPS

PN42

THE COMMISSIONER: And the draft direction; you are seeking to tender that, Mr Coonan.

PN43

MR COONAN: Yes, Commissioner.

PN44

THE COMMISSIONER: We will mark that exhibit 2.

EXHIBIT #2 DRAFT DIRECTION

PN45

MR COONAN: Just following, Commissioner, as I say, we submit that in accordance with the Act that there is industrial action taking place. The actual action relates to work that is covered by an award and by a certified agreement of the Commission, and that the Commission is empowered under section 111(1)(t) of the Act to make directions as it sees fit in relation to any industrial dispute that is before it. On that basis, Commissioner, we would, as I say, formally ask that the order be issued, and be happy to move into conference to discuss it with the Commission.

PN46

THE COMMISSIONER: Thank you, Mr Coonan. Mr Swan?

PN47

MR SWAN: Commissioner, just a couple of matters very briefly. Firstly, I should correct the appearances. I also appear with MR MARK FIELD who is the AWU delegate at the Caltex Refinery. The second point is that it is incorrect to say that the operators of Caltex would undertake the work that needs to be undertaken, as I understand it, and as I am instructed, the operators issue the permits to enable subcontractors of CR to undertake the particular work. It is merely - it doesn't - it neither adds nor detracts from anything materially, it is just a correction of specific facts.

PN48

THE COMMISSIONER: But they are able to, within their contract, undertake this work, aren't they, Mr Swan?

PN49

MR SWAN: The operators of Caltex, I am not instructed that they are. They issue the permits with respect - one might presume that if they issue the permits they are people that are capable of undertaking that particular work, but the fact is they will not undertake that work, they will issue the permits to enable other people under other arrangements with Caltex, or for that matter with Transfield, to undertake that particular work. The third thing is with respect to exhibit 2 - - -

PN50

THE COMMISSIONER: Sorry, Mr Swan, just when you say that they will not undertake that work, is that in the current circumstances of this dispute?

PN51

MR SWAN: I am talking about - no, as a matter of practice.

PN52

THE COMMISSIONER: Right.

PN53

MR SWAN: They will not be the people undertaking the work, as I understand it; it will be employees of Contract Resources who will actually undertake that work. The operators of Caltex will issue the permits to enable the employees of Contract Resources to undertake that particular work. That is as I understand it, Commissioner, but it doesn't, as I said, it neither detracts or adds to any of the material issues in this case. With respect to exhibit 2 the point 3 of the draft order is excessive in the extreme. We do not agree that an order of that nature should, if it is granted, should operate until 30 June 2002.

PN54

As I understand it, the company seeks to rely on some alleged motivations behind the action that is being undertaken by Transfield. As to what those motivations are, it is immaterial to this particular matter; the fact is that we don't know, and no one can be sure how long Transfield employees will be undertaking lawful industrial action in furtherance of their claims. An appropriate timeframe would be two weeks, and either party be at liberty to apply with respect to any order if it is issued, to either revoke that order or to petition the Commission to extend the operation of that order as it sees fit, depending on the circumstances.

PN55

That is what occurred in the previous proceedings before Commissioner Hoffman, and I would submit it is entirely appropriate in this case. Otherwise, it is just simply excessive. The only other thing is I support the submissions of Mr Coonan that we should adjourn into conference quite confident that we can reach some sort of amicable arrangement with respect to these particular matters, Commissioner.

PN56

THE COMMISSIONER: Right. I might, and not limiting your response, Mr Coonan, but I might specifically hear from you in terms of Mr Swan's submissions about the timing of any order, direction if required in this matter. I note, as Mr Swan has said, that Commissioner Hoffman, when he did issue his order, did issue that order in similar circumstances to these, as I understand, for a two-week period with that leave for each party to apply to either extend the notice or shorten it.

PN57

MR COONAN: Yes, Commissioner. Commissioner, I am referring directly back to the matter before Commissioner Hoffman. The order, Mr Swan is correct, was for a period of two weeks, but on that basis the affidavit material before him was in relation to what were critical tasks in a two-week period. I think the material before you at the moment is, we say there is certainly a critical task now, and there may be further critical tasks that require the safe operational work permits to be issued. So we say there is one difference in that matter before Commission Hoffman. It looked like a two-week timeframe; as it presently stands, we thought the employees of Transfield were returning to work yesterday, and that is not the case, so the indications are that this dispute might go for another month. So it is on that basis that we were seeking extended time. However, Commissioner, I am happy to discuss that in conference.

PN58

THE COMMISSIONER: All right.

PN59

MR SWAN: Commissioner, the only thing I would say in response to that is we are in never-never-land. Who knows? We are back to where we were last night, we gaze into the crystal-ball and we make assumptions about things that might or might not happen. The appropriate course is do not place onerous orders on employees to the extent that is petitioned by the company. We can adequately deal with these sorts of issues as and when they arise, a period of two weeks is appropriate. We are not here obviating or trying to put up barricades to the company, but the petition in terms of the time period is just onerous, and it shouldn't be the case in this circumstance.

PN60

We don't know if Transfield employees will return to work tomorrow and undertake the work. It is anyone's guess. It would seem rather bizarre if these particular employees maintained there industrial action for a period of some months up until 30 June, or whenever it is that the order is sought to - - -

PN61

THE COMMISSIONER: What has it been now; two weeks that the industrial has been - - -

PN62

MR SWAN: It has been two weeks. And you can imagine, in a realistic sense, what sort of impact that has had on those particular employees and their families, financially. To contemplate that someone would stay out of the gates until 30 June is getting beyond the pale, in my submission. It is appropriate - we are quite willing to come down here and deal with these issues as and when they arise; a period of two weeks is appropriate in the circumstances. Commissioner Hoffman was cognisant of that when he issued his previous orders with respect to the other employees in the maintenance department.

PN63

THE COMMISSIONER: Thank you. Nothing else? We will go off the record if - we will go off the record now into conference proceedings.

OFF THE RECORD [3.30pm]

RESUMED [3.40pm]

PN64

THE COMMISSIONER: I would indicate for the record that discussions have been held off transcript of the parties. I have indicated that I will issue the directions as sought by Mr Coonan with the amendment that the direction will remain in force for a two-week period with the ability for Mr Coonan, on behalf of Caltex, to apply on short notice to argue or come before the Commission to seek an extension to that period of time if required, and the matter will then be assessed. I have indicated that this matter has similarities to the dispute that was before the Commission on 18 March 2002 between Caltex Refineries v The Australian Workers Union and Others which was C2002/1367.

PN65

Caltex employees, as Commissioner Hoffman termed, are giving what has been termed moral support to employees of the contractor Transfield, who are taking what is apparently protected industrial action in support of their negotiations for a certified agreement. That is a matter between Transfield and its employees. I embrace the words of Commissioner Hoffman in which in his decision on transcript in which he says:

PN66

The Commission understands the union's submissions, that the course of action proposed by the employer may create future industrial relations difficulties. It is nevertheless, in accordance with the Act, inappropriate for Caltex employees to be taking any form of industrial action during the life of their certified agreement which is consistent with the definition of industrial in the Act section 4.

PN67

In accordance with this I issue the directions of today's date as I have set out and will ask for my associate's assistance to prepare those and issue them to the parties.

PN68

MR SWAN: Commissioner, just before we adjourn, I did note one particular comment that related to leave to apply to the applicant with respect to these proceedings. I just - - -

PN69

THE COMMISSIONER: Mr Swan, you are quite correct, and I will - - -

PN70

MR SWAN: I note that it is to any party on the order.

PN71

THE COMMISSIONER: You are quite correct, Mr Swan, and I am glad you have raised that. It is to any party to either lengthen or shorten that period in accordance with the circumstances, my apologies.

PN72

MR SWAN: Thank you, Commissioner.

ADJOURNED INDEFINITELY [3.42pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AFFIDAVIT OF SUNNY PHILLIPS PN42
EXHIBIT #2 DRAFT DIRECTION PN45