C2002/3069, Transcript of Proceedings [2002] AIRCTrans 2477 (3 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N VT04643
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2002/3069

SERCO AUSTRALIA PROPRIETARY LIMITED

and

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

Notification pursuant to section 99 of the Act
of disputes re a claim for an enterprise agreement
with the employer

MELBOURNE

9.03 AM, WEDNESDAY, 19 JUNE 2002

PN1

MR M. TEHAN: I seek leave to appear on behalf of Serco Australia Proprietary Limited.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Tehan.

PN3

MS L. RUSSELL: I seek leave to appear on behalf of Halliburton and KBR Limited and City West Water, who seek leave to intervene in this matter.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Russell.

PN5

MR V. THEUMA: I appear on behalf of the AMWU and wish to express my dissent in that I don't believe that the company Serco ought to be represented by solicitors and I also object to them intervening on behalf of the employers.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Tehan, could you - sorry.

PN7

MR C. WINTER: I appear on behalf of the Australian Workers Union. We would also oppose counsel being represented in relation to the matter. The reasons why, in accordance with 42(3) of the Act:

PN8

...that leave of the Commission can be granted on application made by the party, if the Commission is satisfied that having regard to the subject matter of the proceedings, there are special circumstances that make it desirable for the parties to be represented so.

PN9

In this case, we have a situation with a straight section 99, that has been lodged by Serco. There is a representative from Serco sitting at the bench, Mr Townsend, who is experienced, going back 20 years, in representing various companies before the Commission. We have a representative from Halliburton, Mr Wiggins, also who is sitting at the back there, who has represented various water companies etcetera. I see no need for legal counsel in this matter. We had hoped we could go into conference, initially, and just give you an outline of the dispute, as negotiations are proceeding right at this present moment to try and resolve the disputation.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Tehan, would you like to tell me why leave should be granted?

PN11

MR TEHAN: Yes, Commissioner. This matter involves serious risks to health and safety of a substantial part of the Victorian community - the Melbourne community. And the bans are unlawful bans, the industrial action is unlawful, Serco has notified a dispute, under section 99 and seeks to have the matter heard, expeditiously, by the Commission, but there are complex legal issues which will arise if the unions do not discontinue the bans and quickly. And the jurisdictional issues, which will arise, where we look at the interaction of section 127 of the protected action provisions, which the unions will no doubt rely on, are well known to the Commission.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR TEHAN: That is essentially the reason. Commissioner, before I do sit down, may I thank the Commission for listing this matter at short notice and I am conscious that you have got another matter listed - - -

PN14

THE SENIOR DEPUTY PRESIDENT: At 10.15, yes.

PN15

MR TEHAN: - - - and do appreciate the Commission's courtesy in doing that for us.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Russell, would you tell me why you should have leave to intervene and why you should be granted leave to appear as counsel.

PN17

MS RUSSELL: Yes, your Honour, in respect of leave being granted for legal representation. In addition to the matters that have already been raised by Mr Tehan, the position of Halliburton is that, essentially, it is a operation in Western Australia, it only has a regional office in Victoria. In terms of the current negotiations, those are being conducted by a consultant, not an employee of Halliburton, so that, in our submission, in order for Halliburton to be adequately represented, leave should be granted.

PN18

THE SENIOR DEPUTY PRESIDENT: Halliburton has won the contract that is about to expire?

PN19

MS RUSSELL: Yes, your Honour. The position is that there are a number of functions which are currently performed by Serco which, from 1 July, will be undertaken by an unincorporated joint venture between City West Water and Halliburton and Halliburton will be the employer of those people.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN21

MS RUSSELL: Your Honour, in respect of seeking leave to intervene for both Halliburton and City West Water, Halliburton's interest in this matter, is reasonably self evident, which is that it is due to begin its operations and to employ people from 1 July. It is extremely concerned that the industrial action and also the delay in finalising the enterprise agreement, is putting at risk the commencement of that contract and it seeks an early end to the industrial action and the finalisation of the enterprise agreement. Your Honour, I understand that the parties are reasonably close to finalising that enterprise agreement and Halliburton - - -

PN22

THE SENIOR DEPUTY PRESIDENT: That is between Halliburton and the unions, is it?

PN23

MS RUSSELL: Yes, yes, your Honour. In Halliburton's view, the industrial action, which we also say is not protected and therefore not lawful, should cease. In respect of City West Water, your Honour, the basis on which we seek to intervene, is that clearly the industrial action which Mr Tehan has already indicated, has the potential for serious public health and safety issues, is of great concern to City West Water and there has been an escalation of that industrial action since last Friday.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Russell. Mr Theuma.

PN25

MR THEUMA: I reiterate what I said about Halliburton. It is quite clear they are not the employer and the employer is Serco. There is a bargaining period in place and there is protection in place. In terms of health and safety, the bans are such that we have ensured that the health and safety of the public is not at risk. For example, the issue of any work that needs to be done to look after hospitals, we - that is excluded from any bans and limitations and what the employers are saying is not true. The action is legal, it is protected and we don't believe there is any need for any action at this point of time and negotiations are continuing.

PN26

MR WINTER: We would continue to oppose representation, if the matter is going to be heard formally. Our position would be different if it was going straight into conference. Halliburton, as Mr Theuma says, doesn't employ anyone involved in this dispute. In fact, what they haven't informed you, is as of yesterday they hadn't signed the contract with City West Water. So as of 1 July, and this is still up in the air, whether they are going to be employing anyone as part of the City West Water contract, whatsoever.

PN27

So the question of Halliburton being represented, they don't employ anyone directly at the moment, two, they haven't even signed the contract with City West Water, so there is no contract been set that they will take over any employer role, as of 1 July. And in relation to Serco's representation, they can be quite adequately represented. This is not an application as a 127, it is an section 99 application. If you see fit to allow legal representation, then I believe it may be appropriate just to go straight into conference and then all the parties put their positions on the table. As Mr Theuma has said, negotiations are continuing. From an AWU point of view and we have the majority of workers on site, involved in this dispute, we are very close to finalisation of an agreement and we have had a meeting - - -

PN28

THE SENIOR DEPUTY PRESIDENT: With Halliburton?

PN29

MR WINTER: Yes and City West Water, as part of the PACES arrangements and that has got to be remembered. City West Water seems to be sitting in the background, but they are the authority that runs the water system in the western suburbs and the central CBD. We have a mass meeting of our members planned at 12 o'clock. We have a meeting of basically everyone in this room, planned for 11 o'clock, to try and finalise the disputation. If we are going to get into some sort of legal argument, what it is going to do is delay the meeting at 11 o'clock, delay the mass meeting and prevent the - - -

PN30

THE SENIOR DEPUTY PRESIDENT: Well it won't, because I am not available after 10.15, so it certainly won't be delaying anything at 11 or 12.

PN31

MR WINTER: I believe, at this stage, it may be appropriate, to try and speed things up and resolve things quickly, is that for the parties go into conference and give an outline of where everything sits.

PN32

THE SENIOR DEPUTY PRESIDENT: I am satisfied that there are special circumstances that warrant appearance by counsel, by lawyers. There are allegations and counter allegations about health and safety issues, about the validity of the bans and so on. I am also satisfied that it is appropriate that Halliburton and City Water be granted leave to intervene. Therefore your application for leave to intervene is granted, Ms Russell and your applications for leave to appear are granted Mr Tehan and Ms Russell. I am attracted to the notion of going immediately into conference, but I want to hear the parties attitudes, as to that, before I make a decision as to whether to adjourn into conference or not.

PN33

MR TEHAN: Your Honour, we don't have an objection to proceeding into conference. Might I say, however though, that we sent the Commission a letter with the section 99 notification, which may or may not have been sent to the unions - - -

PN34

MR WINTER: We haven't got it.

PN35

MR TEHAN: I thought it might be wise to tender that, so that it is before all the parties and - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, it should of course have been copied to the unions and - - -

PN37

MR TEHAN: Yes. Time was - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Better late than never, Mr Tehan.

PN39

MR TEHAN: Well that is how I felt, your Honour. I don't feel that there is anything which is greatly prejudicial in the matter, but it does help to set out the overview of the circumstances. So, if I may tender that document. That is the letter dated 18 June 2002, to the Registrar of the Commission, which enclosed the notification for listing.

EXHIBIT #SERCO1 LETTER DATED 18/06/2002 TO THE REGISTRAR OF THE COMMISSION WHICH ENCLOSED THE NOTIFICATION FOR LISTING

PN40

MR TEHAN: Your Honour, might I just draw your attention to a couple of things here, before we do go into conference, if that is okay by your, your Honour.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Tehan.

PN42

MR TEHAN: First of all, in the first paragraph, we set out that our client has the contract until the end of this month, with City West Water, for the provision of maintenance services and that includes maintenance and repairs of sewerage, water and other essential services. We have used the term central business district there. The central business district, so far as the unions are concerned in this matter, has a wider definition than the Spring Street, King Street, Flinders Street, Spencer Street boundary that many of us might understand, CBD, in these circumstances, goes from North Melbourne through to Collingwood. So bans on things in the CBD has a much wider impact than might be otherwise obvious at first glance.

PN43

THE SENIOR DEPUTY PRESIDENT: What are the bans in support of, Mr Tehan?

PN44

MR TEHAN: They are in support of a demand for an enterprise agreement with Serco, conscious that Serco will no longer be the employer, in approximately 10 days time.

PN45

THE SENIOR DEPUTY PRESIDENT: And is the proposed enterprise agreement confined to the contract that Serco now has?

PN46

MR TEHAN: Yes. Serco had a certified agreement with the AWU, which expired on 31 March this year, which has continued in operation.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MR TEHAN: It had an unregistered agreement with the AMWU and the ETU, which also expired on 31 March 2002. The submission of Serco, your Honour, is that the demand for a certified agreement with Serco is a sham and that the real issue here is a desire by the unions, naturally enough, to have an agreement with Halliburton and the new employer of the workforce, post 1 July.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes.

PN50

MR TEHAN: But, in any event, bans were imposed, with effect from Friday 7 June. The bans, your Honour, are purportedly underpinned by bargaining periods 2910 of 2001, that is the AMWU, 647 OF 2001, the ETU and 1781 of 2002, that is the AWU.

PN51

THE SENIOR DEPUTY PRESIDENT: So the AWU has two, does it?

PN52

MR TEHAN: The first one was the AMWU.

PN53

THE SENIOR DEPUTY PRESIDENT: I am sorry. Thank you.

PN54

MR TEHAN: And the AWUs bargaining period notice, your Honour, was filed on 23 May 2002. The ETU and AMWU bargaining periods were filed in 2001, when negotiation took place in respect of an enterprise agreement, 12 months ago, with Serco.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR TEHAN: Notices of industrial action were given by the unions, in identical form, on 3 June 2002, with the bans to take place from 7 June.

PN57

THE SENIOR DEPUTY PRESIDENT: And have the bans taken place?

PN58

MR TEHAN: They have, your Honour. They are the bans which are set out in the middle of Serco 1 - - -

PN59

THE SENIOR DEPUTY PRESIDENT: Yes and you say they have been extended in recent times.

PN60

MR TEHAN: They have been extended in recent times. Late last week bans were imposed on, what I call, priority one and priority two call-outs. These are the most serious incidents, such as burst water mains or sewerage spills. And that has meant, for example this week, that the workforce might come along to be directed to go to - attend to a certain matter and say no we are not attending, we have put a ban on this, this sewerage repair and management and supervisors have been covering it.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes.

PN62

MR TEHAN: Your Honour, I don't want to take up too much time, except I want to say this, there has not yet been a serious incident which has caused an occupational health and safety problem. That has been good luck. If there were to be, for example, two or three sewerage spills at the one time, around this broader western metropolitan area, management could not cope with it and we could have a very serious situation, very quickly. Serco has resisted notifying this matter and seeking orders under section 127, thus far. That should not be misinterpreted by the unions. If these bans don't come off Serco will be forced, because of its obligations to the client City West Water and to the community, to seek immediate bans, bans on the - - -

PN63

THE SENIOR DEPUTY PRESIDENT: Bans on the bans.

PN64

MR TEHAN: Bans on the bans, yes - sorry, orders, your Honour. Your Honour, the final thing is, there is no bona fide interest - it is our submission that there is no bona fide interest of Serco in this matter. Talks have been going on and we would be hoping that those talks will continue. But that is perhaps enough for the time being, your Honour, in terms of the request you made about whether we would have an objection to going to conference. We don't have an objection and we would be happy to do so.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Russell. Well, does anybody else want to say anything before I adjourn into conference?

PN66

MS RUSSELL: Your Honour, just very briefly. Your Honour, we don't have any objection to going to conference, however, because of my client's obvious concern about the industrial action, if the unions - unless the unions indicate that they are prepared to cease the industrial action immediately, then we would be seeking from your Honour, a recommendation that industrial action cease. And if that recommendation was not to be followed, then certainly, City West Water would be seriously considering what other action it may need to take to protect its position and also to protect the community.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Russell.

PN68

MR WINTER: If I could just respond to another number of points, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Winter.

PN70

MR WINTER: What you haven't been, in relation to this, is that we have been put into a position, now, where we are trying to turn a scrambled egg into a boiled egg. We are dealing with the Kennett government's contracting out policies that have been our members go from public sector workers to contractors, from one company to another and now to some sort of magical joint venture between City West Water and Halliburton, even though there is no contract signed between Halliburton and City West Water and bear in mind there is only 10 days to go.

PN71

We, and what hasn't been told to you, is we started discussing these matters, with City West Water, in August last year. We also started discussing these matters with both Serco and Halliburton, prior to Christmas. We have put our bona fides on the line, we have put our positions on the line and we have got to a situation where it is 10 days before the contract falls over and Serco disappears back to New South Wales and there is just total chaos. We have had people removed from the negotiations, we have had people put into the negotiations, there hasn't been a real attempt until yesterday, to get this thing finalised.

PN72

And we made more progress yesterday than we have done in the nine months we have been talking to the parties. City West Water has got a lot to answer for, in this. At the end of the day, that is where the buck stops. They decide what happens, they are the water authority. So, to say that we haven't been trying to resolve this dispute, is totally wrong. In relation to the bans, let me say to this, we have exempted hospitals, kindergartens, we have exempted nursing homes, we have made a conscious effort to make sure we have exempted any threats to personal or private property. Right. We have made every attempt to limit the dispute and the affects on individuals health and safety.

PN73

We have taken, as I said, a protected action against Serco and we have been trying to negotiate an agreement with Serco, on the basis of this. But at least if we had finalised the certified agreement with Serco, then we would have something in place if we hadn't, couldn't get anything together with City West Water and Halliburton under the PACES arrangements. So, we have been attempting to negotiate, in good faith.

PN74

THE SENIOR DEPUTY PRESIDENT: So you speak of something called PACES, is it, or something?

PN75

MR WINTER: Yes, well this is where it gets - - -

PN76

THE SENIOR DEPUTY PRESIDENT: That is something I don't know anything about.

PN77

MR WINTER: PACES is a non-incorporated body.

PN78

THE SENIOR DEPUTY PRESIDENT: Is that an acronym for something?

PN79

MR WINTER: It probably is, but it - - -

PN80

THE SENIOR DEPUTY PRESIDENT: What is it P-A-C-A-S?

PN81

MR WINTER: P-A-C-E-S, and it is an unincorporated body that is City West Water and Halliburton, and up to yesterday, another company called Bells and they were going to run this new contract, as part of a joint venture. But Halliburton, supposedly, is going to employ all our people. City West Water, who are a part of this PACES group, isn't going to employ anyone, yet Halliburton says they are going to employ everyone, but they haven't signed the contract with City West Water. So there are all these issues involved and it has been a nightmare.

PN82

We have, as a union as I have said, have been spending, regularly at least once a week and in the last month, we have been spending three or four days a week negotiating with this crowd, to try and finalise something, so at least it gives some guarantees to our members, and we have been unsuccessful because they haven't even got their own act together. At this stage, I would support going into conference.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, very well, well we will go into conference. Thank you.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SERCO1 LETTER DATED 18/06/2002 TO THE REGISTRAR OF THE COMMISSION WHICH ENCLOSED THE NOTIFICATION FOR LISTING PN40