C2002/3639, Transcript of Proceedings [2002] AIRCTrans 3130 (14 August 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 VT05113
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2002/3639
C2002/3699

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Becon Constructions Pty Ltd for an order
to stop or prevent industrial action at
various construction sites

BECON CONSTRUCTIONS PTY LTD

and

CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION

Notification pursuant to section 99
of the Act of a dispute re redundancies

MELBOURNE

3.00 PM, TUESDAY, 30 JULY 2002

Continued from 26.7.02, Not transcribed

PN1

THE COMMISSIONER: Yes. It is Mr Lange, is it?

PN2

MR T. LANGE: Yes, Commissioner. Commissioner the matter is listed for report back.

PN3

THE COMMISSIONER: Yes.

PN4

MR LANGE: I am sorry - - -

PN5

THE COMMISSIONER: Yes. You are just entering your appearance, and Mr Wainwright?

PN6

MR R. WAINWRIGHT: Yes. We would just like to enter a change of appearance for the CFMEU, Commissioner.

PN7

THE COMMISSIONER: Yes. Good. Thank you. Yes, Mr Lange?

PN8

MR LANGE: The matter is listed for report back. I can report that - - -

PN9

THE COMMISSIONER: Well, it was actually - the intention being that it should be listed not simply for report back but also to consider whether any directions under section 119 should be issued. I am not sure how it has actually been issued but that was my recollection of how it was to be set down.

PN10

MR LANGE: That is my recollection also, Commissioner. We will be making various submissions on that.

PN11

THE COMMISSIONER: Yes. All right. Thanks.

PN12

MR LANGE: A meeting occurred at 2 o'clock. It was attended by Mr Doyle with Mr Evans and myself. Mr Wainwright was able to attend at a later point in time. I understand he had conflict.

PN13

THE COMMISSIONER: Yes.

PN14

MR LANGE: Those discussions - without going into what occurred, I can say that those discussions have taken the matter no further. Accordingly we would request that in this matter there be conciliation before the Commission and that that conciliation be attended by an appropriate senior official of the CFMEU. Following agreement to that course we will press our application for a compulsory conference. Commissioner, do you wish to hear me on the 119 application now?

PN15

THE COMMISSIONER: Yes, thank you very much. Yes. Go ahead.

PN16

MR LANGE: Yes. I indicate - the submissions in support of the 119 application are that numerous discussions have taken place. We do not believe that matters are entirely exhausted in respect of those discussions. However, to date those discussions have taken the matter no further. It is our experience before the Commission that conciliation with the assistance of the Commission would overcome of the obstacles which appear to have arisen in those discussions.

PN17

THE COMMISSIONER: Yes.

PN18

MR LANGE: And I do want to indicate as well that part of the order we would seek under section 119 is that the individual at the centre of these issues, Mr Thomas, be a part of any order under section 119, in that he be required to attend that conference.

PN19

THE COMMISSIONER: This is Mr Peter Thomas, is it?

PN20

MR LANGE: Mr Peter Thomas, that is right. I might add, as well, that Mr Ian Markham is the organiser for the area, however we understand that Mr Markham has some personal issues at the moment and we wouldn't necessarily seek his inclusion.

PN21

THE COMMISSIONER: Yes.

PN22

MR LANGE: Although we do say it would be appropriate for a senior official of the union to attend.

PN23

THE COMMISSIONER: Yes. Anything further.

PN24

MR LANGE: Those are my submissions.

PN25

THE COMMISSIONER: Good. Thanks. Yes, Mr Wainwright.

PN26

MR WAINWRIGHT: Well, Commissioner, I think I can solve the problem of making a 119 order. What the CFMEU seeks is a direction from the Commission in relation to the way discussion should proceed.

PN27

THE COMMISSIONER: Yes.

PN28

MR WAINWRIGHT: We think that the first stage of that direction should be that the parties meet on Friday of this week - which I think is 2 August.

PN29

THE COMMISSIONER: Yes.

PN30

MR WAINWRIGHT: And from the CFMEU that meeting - - -

PN31

THE COMMISSIONER: Would that include Mr Peter Thomas?

PN32

MR WAINWRIGHT: We include Mr Peter Thomas, we include Mr Bill Oliver.

PN33

THE COMMISSIONER: Mr Peter Thomas, Mr Bill Oliver?

PN34

MR WAINWRIGHT: He is the acting secretary.

PN35

THE COMMISSIONER: Right. Okay. Yes.

PN36

MR WAINWRIGHT: And Mr Fergal Doyle.

PN37

THE COMMISSIONER: And Mr Fergal Doyle.

PN38

MR WAINWRIGHT: Yes.

PN39

THE COMMISSIONER: Yes, Mr Doyle. Yes.

PN40

MR WAINWRIGHT: And obviously it would be attended by the senior - - -

PN41

THE COMMISSIONER: Would you participate in that or - - -

PN42

MR WAINWRIGHT: I wouldn't think so, Commissioner.

PN43

THE COMMISSIONER: No. All right. Fine.

PN44

MR WAINWRIGHT: And be attended by the senior people from the company. And that would meet the obligations under the dispute settlement procedure of the enterprise agreement. Having not received - had an outcome at a certain level things get ramped up.

PN45

THE COMMISSIONER: Yes.

PN46

MR WAINWRIGHT: The other part of the directions that I would seek, Commissioner, is that the report back that I believe you have got listed for 6 August be listed for report back and/or conciliation. So what can be reported back to you is the last stage of the dispute settlement procedure, how that meeting went between the senior people. And should there be a need - and certainly we hope there isn't a need - the assistance of the Commission, as it is currently constituted, in any conciliation.

PN47

THE COMMISSIONER: Yes. And there will be no industrial action take place in the meanwhile?

PN48

MR WAINWRIGHT: As I understand it, undertakings have been given previously by Mr Doyle and those stand.

PN49

THE COMMISSIONER: Yes. Good. That is great. Mr Lange, that sounds a very sensible proposal. Do you have any objection to that? Can I just say it would suit - it actually would suit me. I am tied up later this week so - and I am flat out, really, from now until the end of the week. So I would be hard pressed myself to attend a conciliation conference.

PN50

MR LANGE: Certainly. Commissioner, could I enquire as to your availability on Monday or Tuesday prior to 4 pm next week and I - - -

PN51

THE COMMISSIONER: I have just been looking at my diary in regard to another matter that Mr Wainwright and I have and I am looking at rearranging my day next Tuesday and I would rather do it on Tuesday. But I can do it - I could do it first thing Tuesday. Yes, I could do it at 9 o'clock on Tuesday if that suits.

PN52

MR LANGE: That would suit, Commissioner. Just in respect of the submissions made by Mr Wainwright, I would indicate that the dispute settling procedure step being addressed by Mr Wainwright is the one which reads:

PN53

If still not resolved there may be discussions between the state secretary and senior management representatives.

PN54

Commissioner, at the last hearing of this matter it was affirmed that the parties would follow the dispute settlement procedure.

PN55

THE COMMISSIONER: Yes.

PN56

MR LANGE: That stage had been reached already at that point.

PN57

THE COMMISSIONER: Yes.

PN58

MR LANGE: At the meeting today the state secretary was unable to attend. We weren't given notice that he would not attend. We would seek conciliation before the Commission. We say that the disputes resolution procedure, so far as we are concerned, has been followed.

PN59

THE COMMISSIONER: Yes.

PN60

MR LANGE: And has not provided a resolution to the matter. I note although the participation of the parties identified by Mr Wainwright is welcome, we say that ought be in front of the Commission in conciliation.

PN61

THE COMMISSIONER: Yes.

PN62

MR LANGE: I also note that Mr Wainwright refers to the matter being listed for - the 127 matter being listed for report back on Tuesday at 4 o'clock. My understanding is that it is just a hearing, if necessary, at 4 o'clock next Tuesday.

PN63

THE COMMISSIONER: Yes. Why don't we list it for conciliation at 9 and leave the 4 o'clock listing for the hearing?

PN64

MR LANGE: That would be an appropriate course, from our point of view.

PN65

THE COMMISSIONER: Yes. All right. Now who would attend from the company's side?

PN66

MR LANGE: Mr Evans would attend. I would attend as representative.

PN67

THE COMMISSIONER: Well - - - yes. I of course see these proceedings, that sort of session, as being different to this sort of proceeding. But it is up to the company who it decides it wants to have. I just make clear that it is not a - it is not a legal proceeding.

PN68

MR LANGE: Certainly, Commissioner.

PN69

THE COMMISSIONER: Yes.

PN70

MR LANGE: It wouldn't be the role of - and I would understand this would go for any legal representative should there be one attending for the union - it wouldn't be the role of the legal representative to be anything other than a legal resource.

PN71

THE COMMISSIONER: Well, perhaps a resource. Yes. So, Mr Evans - - -

PN72

MR LANGE: It would certainly be a matter for resolution.

PN73

THE COMMISSIONER: - - - and Mr Lange for Becon?

PN74

MR LANGE: Yes. And if available, Ms Attwood of the MVAV would also attend.

PN75

THE COMMISSIONER: Thanks. Is there a time preference from the parties? I know Mr Allenby must be very busy but can I just ask is there a time preference from both sides for this Friday - Mr Wainwright?

PN76

MR WAINWRIGHT: Commissioner, I am sorry, I should indicate that when we put the submission that the compulsory conference and/or a conference before the Commission occurred, in light of what has occurred in discussions we say that ought be the only such meeting. We are, I am instructed, given the content of discussions not of a view that there would be any assistance by the parties meeting without the assistance of the Commission.

PN77

THE COMMISSIONER: Well. I am not going to be able to assist you on Friday. But I personally think it is worth giving - letting the parties have another go, particularly if Mr Oliver is going to be there, Mr Wainwright.

PN78

MR WAINWRIGHT: Yes. We press our submission that it would be useful for the Commission to direct that the meeting occur on Friday.

PN79

THE COMMISSIONER: Yes.

PN80

MR WAINWRIGHT: We would suggest a time of 8 o'clock. I would further suggest that whilst - - -

PN81

THE COMMISSIONER: 8 am?

PN82

MR WAINWRIGHT: 8 am in the morning. It might be a bit early for Blake Dawson and Waldron but it is not early for the CFMEU.

PN83

THE COMMISSIONER: No, it won't be too early for Blake Dawson and Waldron.

PN84

MR WAINWRIGHT: We have - - -

PN85

THE COMMISSIONER: My experience has been that it is often union officials who don't like outside of office hours meetings, Mr Wainwright.

PN86

MR WAINWRIGHT: Not the construction industry, Commissioner.

PN87

THE COMMISSIONER: Okay. Good.

PN88

MR WAINWRIGHT: But also, my experience of these meetings is - and you know my view of even participation in these types of proceedings - that they are best attended by the participants.

PN89

THE COMMISSIONER: Yes.

PN90

MR WAINWRIGHT: We are not intending to have legal representation there, or even industrial officers present.

PN91

THE COMMISSIONER: Yes.

PN92

MR WAINWRIGHT: And we think that if the company wishes to be represented by the MVAV that would be constructive. If they wish to bring other representation that is an issue for themselves but not something that we would encourage.

PN93

THE COMMISSIONER: Yes. Well, that is why I made clear that perhaps they are there as a resource rather than as a legal resource. Lawyers are capable of wearing many different hats, Mr Wainwright, as you well know. Yes.

PN94

MR LANGE: Commissioner, I am sorry, I didn't have anything to add to that at this stage although I - - -

PN95

THE COMMISSIONER: Yes. I didn't see you blanche at the mention of 8 am on Friday.

PN96

MR LANGE: Certainly not. Saturday, Sunday, Commissioner?

PN97

THE COMMISSIONER: It is usually me offering my weekend up, 8 am on Friday. Yes. Mr Evans, is that going to be okay with you?

PN98

MR EVANS: As difficult as it may be - I do have to get our sites underway and I do have a fairly strict timeframe but under the circumstances I will make myself available. Thank you.

PN99

THE COMMISSIONER: Yes. Okay. And Ms Attwood, is that going to be okay with you?

PN100

MS ATTWOOD: Yes, that should be fine at this stage, Commissioner.

PN101

THE COMMISSIONER: All right. Good. All right. Thanks very much. I will issue a written direction in due course but I don't want there to be any doubt so I will actually give it from the Bench just at this stage. Having heard the submissions of both parties I am satisfied that I should order two compulsory conferences in this matter pursuant to section 199 of the Act. The first is to be a conference between Mr Peter Thomas, Mr Bill Oliver, Mr Fergal Doyle, Mr T. Evans, Mr T. Lange and Ms Attwood but without the assistance of the Commission, but here in the Commission premises at 8 am on Friday, 2 August 2002.

PN102

We will let you know a room in due course. And I will list the matter for second conference for conciliation, with my involvement, for 9 am on Tuesday, 6 August 2002. And yet again you will be notified of the precise location of that conference room. Thank you very much.

ADJOURNED ACCORDINGLY [3.11pm]