|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER RAFFAELLI
C2002/4360
C2002/4362
MASTER BUILDERS' ASSOCIATION OF
NEW SOUTH WALES
and
CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION AND ORS
Notification pursuant to Section 99 of the
Act of proposed industrial action in order to
hold a rally outside the Building and Construction
Industry Royal Commission
Application under section 127(2) of the Act
to stop or prevent industrial action
SYDNEY
9.40 AM, TUESDAY, 27 AUGUST 2002
Adjourned sine die
PN1
THE COMMISSIONER: Could I have the appearances please.
PN2
MR G. THOMAS: I appear for the Master Builders' Association of New South Wales and its Members.
PN3
MR WARREN: I appear on behalf of Bisco New South Wales and I represent the following associations: the Master Painters Australia New South Wales Association and respondent members of the Association of Wool and Sewing Industries of New South Wales; the Floor Covering Association of New South Wales; the Landscape Contractors Association and the Metal Roofing & Cladding Association of Australia. I also, on a temporary basis, appear for the Civil Contractors Federation, MS M. BASS is on her way in, last was heard of Five Dock in a traffic jam, should be here shortly Commissioner.
PN4
THE COMMISSIONER: What is BISCO?
PN5
MR WARREN: Building Industry Specialist Contractor Organisation.
PN6
THE COMMISSIONER: I will take the appearances from the unions.
PN7
MS R. MALLIA: If the Commission pleases I appear for the Construction, Forestry, Mining Energy Union.
PN8
MS R. MIFSUD: If it pleases I appear for the Communications, Electrical, Plumbing Union. I note on the application for the 127 orders the Electrical Trades Union New South Wales Branch is named, that is a stated registered organisation that does not have a Federally registered - - -
PN9
THE COMMISSIONER: That does not mean you cannot be bound by a 127 order though.
PN10
MS MIFSUD: Well they are all, everything is in the State Commission as far as that organisation is concerned but it's Federal name is the CEPU.
PN11
MR B. BEER: I appear for the AMWU.
PN12
THE COMMISSIONER: Yes Mr Thomas?
PN13
MR THOMAS: Thank you Commissioner. Commissioner the application before you and indeed the notice under section 99 relate to action proposed to be taken by a number of unions in the Building and Construction Industry Union at noon tomorrow, 28 August 2002. If I may Commissioner I will hand up a brochure. The brochure is headed "Enough is Enough Investigate Safety Now". The brochure advises members of a number of unions authorising the pamphlet that there will be a lunchtime safety rally, 97 to 99 Goulburn Street, Sydney, which is indeed outside of the premises occupied by the Family Court of Australia where the Royal Commission into the Building and Construction Industry will be in session.
PN14
I not Commissioner that the document is authorised by a Mr Bernie Reardon, Sectary of the ETU; Mr Russ Collison, Secretary of the AWU; Paul Bation, Secretary of AMWU; Steve McCarney, Secretary CEPU Plumbing; and, Andrew Fergusson, Secretary CFMEU. Sir, the meeting has been organised by way of a number of meetings - - -
PN15
PN16
MR THOMAS: Thank you Commissioner. Commissioner if I may also hand up a statutory declaration, a copy of which has been filed in the Industrial Relation Commission of New South Wales.
PN17
PN18
MR THOMAS: Commissioner this statutory declaration is by Mr Bernie Reardon, Secretary of the Electrical Trades Union of Australia New South Wales Branch. If I may take you to the content of the statutory declaration, it refers to a rally in protest to the Cole Royal Commission. It declares that Mr Reardon along with other state secretaries have authorised a flyer headed "Enough is Enough" that flyer has been entered in these proceedings as exhibit MBA1. Mr Reardon continues in his declaration that he has held a mass meeting of members within the construction industry and he has advised the membership at that meeting that they should wherever possible attend this lunchtime rally.
PN19
He continues that he has not directed members to leave work or as alleged by the MBA to knock off at 10.30 or 11.00 in order to attend the rally. He has nevertheless indicated to you indicated support for it and authorised a pamphlet encouraging members of that union to attend the rally, as I have mentioned held in protest at the Cole Royal Commission. Let me if I may dwell on the implications of the meeting itself. The Royal Commission is in session. Officials certainly of the CFMEU and other unions have ranged wide across building and constructions sites within the Sydney metropolitan area.
PN20
The notification under section 99 refers to sites at Walsh Bay, Concord and Parramatta. I note that sites that we anticipate will be affected, extend and ranges far as Mt Annan which is in the Campbelltown district. Now what is intended is a rally to start at 11.00am presumably to really move into top gear as it were at 12 noon. The people who are directed, encouraged, requested or whatever to attend that presumably, it is expected will arrive there by 11 o'clock in the morning or some time thereafter.
PN21
Characterised the advice or the direction or the coercion or whatever on the part of the unions as you might it is nevertheless suggesting to people who are employed on building and construction industry sites that they should absent themselves without authority tomorrow to attend a protest against a royal commission that is examining issues within the building and construction industry. That in itself has implications I would suggest both in terms of the employee absenting himself or herself in the morning and the return to work which as you will note from the pamphlet before you is quite open ended and I would suggest in terms of normal industry practice quite uncertain.
PN22
The reality is Commissioner that there will be a half day stoppage tomorrow in protest at the conduct by the commonwealth government Cole Royal Commission. Now I have also already emphasised that however else it may be characterised that will be in reality unauthorised absence on the part of employees from their place of employment. I emphasise that such action collectively on the part of employees, on the encouragement, direction or whatever by officials of unions who have supported the pamphlet and support the rally will in my submission to you constitute action which is contrary to dispute settling procedures of awards of this tribunal dispute settling procedures of certified agreements of this Tribunal and its NSW counterpart and also I would suggest to you strongly unprotected action in terms of the Workplace Relations Act. That is the action proposed. However you may view Mr Reardon's affidavit, Mr Reardon supports it. Mr Reardon's union supports it. Mr Reardon's union is identified at the bottom of the document as authorising it.Commissioner, may I also now hand up a further affidavit. This is an affidavit by Steven David Jansen, senior project manager.
PN23
THE COMMISSIONER: Of a company?
PN24
MR THOMAS: Yes, Mr Jansen is employed by Hansen Youngford.
PN25
PN26
MR THOMAS: Thank you, Commissioner. Mr Jansen's affidavit provides an account of a conversation on 20 August with Alan Duff, an organiser of the CFMEU. You will note in paragraph four of Mr Jansen's affidavit that Mr Duff advised him on that day that there is going to be a march on the Family Law Court building in the city next Wednesday. Mr Duff wanted to have a meeting of his members on the site. Mr Jansen proposed lunchtime the next day. Mr Duff returned to the site at 7.00am in the morning and called a stop work meeting to address the workers at 7.00am which went for approximately half an hour.
PN27
At the conclusion of that meeting, Mr Jansen was advised that there had been a vote to stop work at 11.00am for the rally in the city. When asked whether it would extend beyond lunch time, Mr Duff agreed that it was unlikely that there would be a resumption of work on Wednesday afternoon. Once again we see clear evidence, I suggest, Commissioner of an intention on the part of a number of unions to organise a rally, a march in protest at the conduct of the Royal Commission into the building and construction industry.
PN28
In terms of a major construction site employees on that site will stop work in time to allow travel to the city with resumption of work uncertain. Commissioner, once again, I would suggest that the actions proposed there, constitute all of what I have suggested to you earlier but it may be characterised as action, which is in breach of dispute settling procedures, be they based in awards or certified agreements of this Tribunal or its state counterpart. It involves unions, call it what you like, requesting, advising, inciting, coercing, whatever, but the end product of the input provided by the unions authorising the pamphlet that I have submitted as MBA1, is that there will be a collective unauthorised absence from work for a period tomorrow for the purposes of attending a rally in protest of the Royal Commission set up by an elected government.
PN29
I would suggest that that is an action that should concern this Tribunal. Both from the point of view that it involves instruments made by this Tribunal and its NSW counterpart. But there are other aspects that I will deal with in greater detail shortly. The bottom line is that there is a stoppage of work. The bottom line is that the conduct in question is a continuation of conduct indeed that prompted the establishment of the Royal Commission that is the object of the protest and it is conduct which has been the subject of the Commissioner's first report to government.
PN30
If I may turn now to the content of MBA1, and the legitimacy of the document. In particular, sir, I draw your attention to the third paragraph:
PN31
The union movement has provided box loads of information to the Royal Commission to investigate. The evidence we have provided relates to appalling safety standards.
PN32
Safety standards, in fact occupational health and safety generally has been a major concern of the Royal Commission and the Commissioner has made that concern clear, both in statements on the record and in discussion papers issued by the Royal Commission. Pressure on the workers to incorporate; nonpayment of subcontract companies by builders and developers for work completed. The Royal Commission is on the record as requesting input from parties on that topic and indeed has written to parties on that topic requesting their comments in detail.
PN33
There is a concern on the part of the Royal Commission for that issue and indeed the Royal Commission has given evidence of that concern. Widespread use of illegal immigrants and cheap labour, clearly a breach of existing Commonwealth laws. An area where all unions have maintained close interest. Legitimate concern but should it be something that is the subject of a protest against this Royal Commission. Workers compensation fraud, another issue that has loomed large in submissions made to the Royal Commission and the subject of statements by the Royal Commission. Five dot points, all of them areas that have been the subject of submissions to the Royal Commission, not just by unions but by other parties in the industry, all of them areas where concerns are being addressed if not in quite the same manner that the CFMEU and other unions would prefer. If I may, Commissioner, hand up as an exhibit.
PN34
MS MALLIA: Just one moment, Commissioner, I object to this. I don't see how this is relevant to your deliberations under section 127, it is correspondence to Mr Seidler from the Royal Commission and I just don't see the relevance in these proceedings.
PN35
THE COMMISSIONER: Does it not add to what Mr Thomas has said, that the Commissioner or the Commission has in fact been concerned about safety standards?
PN36
MS MALLIA: Well, even in submissions I will say that that is irrelevant to your considerations under section 127, I mean I just don't see how this assists you in determining whether or not there is industrial action which gives rise to your discretion to exercise - gives rise to the exercise of your discretion in the granting of the orders sought. If anything it is just background.
PN37
PN38
THE COMMISSIONER: Do I take it that you are Ms Bass?
PN39
MS BASS: Yes, Commissioner.
PN40
THE COMMISSIONER: Okay, we will take your appearance as well. Yes, Mr Thomas?
PN41
MR THOMAS: Thank you. I understand that this letter has been sent to other interested parties in the industry and indeed I believe it may well have been forwarded to unions who are involved in the Royal Commission. I note following upon my earlier remarks the Commissioner refers to his discussion paper on occupational health and safety and he invites interested parties to a conference in Melbourne on 19 and 20 September 2002 for further discussion of matters which I would suggest are not only relevant to the concerns of the CFMEU in terms of occupational health and safety performance in the industry but also relevant to the alleged purpose of the protest outside the Royal Commission tomorrow.
PN42
I note that in the penultimate paragraph the Royal Commissioner refers to having extended similar invitations to representations of other employee and employee organisations that are active in the industry and I would be surprised if the CFMEU and other organisations represented at the bar table had not received a similar invitation.
PN43
I suppose the point is and I refer to an article which was printed in the Australian Financial Review on Thursday, 22nd, authored by the Executive Director of the Master Builders Australia, I will tender that.
PN44
PN45
MR THOMAS: I note the first three paragraphs of the article where Mr Harnish says:
PN46
It is regrettable that there has proven to be a need for a Royal Commission into the building and construction industry ...(reads)... 15 areas of practices and conduct with need of reform.
PN47
Mr Harnish continues:
PN48
At no time has the MBA seen the Royal Commission as a union-bashing exercise - - -
PN49
and indeed we don't. However, we also don't believe that the operation of the Royal Commission should be used as a justification for an exercise in either employer-bashing or industry-bashing. It is quite clear that Mr Harnish and others in the industry acknowledge the need for some examination of issues within the industry. I note on page 2 and in fact the third last paragraph where Mr Harnish acknowledges that part of the purpose of the interim task force that has been announced by government should be to address the concerns of the CFMEU in areas such as alleged under-payment of employee entitlements.
PN50
So let it be quite clear when we turn to MBA1 that concerns which are highlighted there are receiving attention though that attention may not necessarily be in the same manner that the CFMEU and other unions would prefer but it nevertheless is receiving attention and indeed in a way that they could well become part of. Why then is it necessary to conduct a protest? Why is it necessary indeed to suggest to their memberships that it is necessary because those various issues of concern are not being addressed?
PN51
I would suggest that there is a problem. The problem is not solved by holding a stoppage tomorrow. I would put to you that it is fairly clear what the intention is. The intention is that there will be a rally outside the Family Court tomorrow. The object of the notification under section 99 was to bring that to the attention of the Commission, to ventilate the issue and to seek orders under section 127 of the Act which would prohibit that action.
PN52
I believe that the material you have before you is sufficient for you to exercise your discretion under the Act to grant the orders sought, not only in the sense that the material before you establishes that there has been a concerted effort to organise a rally notwithstanding other obligations that unions and members of unions may be party to but also I have tried to raise some questions as to the legitimacy of the action proposed because I believe that also, if anything, increases the imperative that this Tribunal act to make orders as proposed under section 127 of the Act. As the Commission pleases.
PN53
THE COMMISSIONER: Mr Thomas, could I take you to your proposed order, in clause 4, it's often critical if an order is issued. Now, if an order were issued it could readily be served on the organisations but how effective could it be to serve it on employees or even bring it to their attention. I am getting to the point - the horse has bolted hasn't it?
PN54
There's been mass rallies or whatever, stopwork meetings - one of them is at Concord Hospital. There's be delegates all over the place instructed by the unions to do certain things; they might have already had meetings. How is the Commission, since it says the Commission shall provide a copy, even if the Commission is assisted by the MBA, how are we going to effect something that's in any way going to cut the numbers down tomorrow?
PN55
MR THOMAS: Commissioner, including mid morning there is a range of devices whereby copies of an order made by this tribunal could be made available on sites around the Sydney metropolitan area, be that by the CFMEU or other unions. I'm talking now about fax, email, a range of technologies. There is also the phone, there is also the human resources of the organisations concerned and they are, I would submit, not inconsiderable.
PN56
THE COMMISSIONER: Yes, Mr Warren.
PN57
MR WARREN: Thank you, Commissioner. I would support the submission by Mr Thomas. In doing so, just a couple of additional points that I might bring to the attention of the Commission. MBA1 clearly demonstrates that this is a coordinated approach by the unions. It is coordinated industrial action and I would say to you that the unions are fully aware of the effect that it will have on the industry. Clause 28.1 of the National Building and Construction Industry Award deals with the meal break and it states:
PN58
There shall be a cessation of work and of working time for the purpose of a meal on each day of no less than 30 minutes to be taken between noon and 1.00 pm
PN59
All of the building industry awards have that clause or something very similar so it is quite clear that lunch is a half hour break. I think there is provision under some circumstances for a variation of 45 minutes but that's a very rare occurrence. So there is a half hour break. Having been through a proceeding in the State Commission yesterday the unions may well say to you, we are only authorising a half hour break, but Mr Thomas has put evidence to you that the sites throughout Sydney have been visited and in fact you have a declaration from one of the site managers that his people have been clearly told to know off early to get into the rally.
PN60
I have been dealing in this industry for the last 16 or 17 years and we've had a few of these rallies in that time and the inevitable effect is that the rally is at noon but the employees have to be massed and put into some semblance of order, that means they normally get there half an hour before the rally starts at least. Those coming from the outlying areas, Mt Annan is mentioned by Mr Thomas, they tend to know off at smoko time, 9.00 o'clock and head off to the rally. Others in the areas such as Concord or the inner suburbs all knock off at 10.30 or 11.00 o'clock, so work stops from that time.
PN61
After the rally our experience has been that if the rally goes for only half an hour the employees make their way back to city sites, they may get back to work if we're lucky about 1.00 or 1.30. The suburban sites, 2.00, 2.30 at a time when they're going to knock off within an hour means that effectively no work is done in the afternoon because they have to resume, take up their tools, relocate their material and it's usually a half hour to get things going so by the time they get going it's time to knock off again and clean up and leave the site.
PN62
So, effectively, we lose half a day at best and in some cases three quarters of a day productivity so there is a very serious effect on the industry and it's quite disingenuous of the union to say it's only a half hour's stoppage. It is in fact a much longer stoppage. It is industrial action, it is coordinated and even those people who work within a block or two of the actual site of the rally would need that full half hour to stop, get there, have a 10 minute rally and get back. I don't think anyone seriously believes it will be a 10 minute rally.
PN63
So this is a deliberate and joint action by the building unions to disrupt work tomorrow. It is serious industrial action, it has a serious effect on the economy of the building industry, it flows on. Those people who are not members of the union generally cannot work on sites because the key areas go out, the safety officer goes, the electrical work goes, whatever it may be, the whole site has to stop and so people who otherwise might be employed and wish to continue working cannot do so.
PN64
So it is a knock on effect there, it puts production back, it is a serious economic impact on the industry and it's across Sydney and that's a major industry. That's all I wish to add, thank you, Commissioner.
PN65
THE COMMISSIONER: Thank you Mr Warren. Ms Bass, do you have anything further.
PN66
MS BASS: Commissioner, we would certainly agree with submissions put to you this morning by both the MBA and Biscoe. We would request that the Commission consider applying section 127 of the Workplace Relations Act to prevent this industrial action which is scheduled for tomorrow. If the Commission pleases.
PN67
THE COMMISSIONER: Thank you, Ms Bass. Yes, Ms Mallia?
PN68
MS MALLIA: Yes, Commissioner, firstly, before I go into the details of what has been put to you this morning, as is evident before you there are proceedings before the State Commission which are back before her Honour Justice Cavanagh this afternoon at 2.00 o'clock. Both the MBA, MBA1 forms part of the evidence that is being put forward to the Commission in that respect. Also, the statement of Mr Bernie Riordan, as you can see, is an affidavit filed for the purposes of the proceedings this afternoon and so, too, the affidavit of Mr Jansen in these proceedings is an identical affidavit to the one which has been provided to us by the MBA last night which will be relied upon in those proceedings this afternoon.
PN69
So, from our point of view, firstly, we say there is an issue which arises here under section 111AAA(1) particularly in relation to the projects that Mr Jansen is associated with, the Concord General Repatriation Hospital site because, even on his affidavit which I have to hand at this moment is subject to a state project award which on that basis the MBA has filed proceedings in the State Commission and it is being dealt with by a formal hearing this afternoon in front of Justice Cavanagh.
PN70
There was a brief listing for compulsory conference before Deputy Vice President Walton in the State Commission yesterday, conciliation failed, a certificate was issued and a hearing set down for this afternoon. I have got to be in two places at the one time and I also have two address orders given by His Honour Justice Walton yesterday that I am to respond to the evidence in relation to this afternoon's proceedings by 12.00 o'clock today and the evidence before you, Commission, is essentially the evidence that Justice Cavanagh is dealing with this afternoon.
PN71
So we would say in the first instance a duplication of these proceedings is completely unnecessary. The employers are obviously trying to cover all bases, I am not really quite sure, but under section 111AAA(1) of the Workplace Relations Act, unless you think there is a public interest element here you would have the authority to cease dealing with the matter here, allow the matters to be fully traversed and dealt with this afternoon in the State Commission.
PN72
THE COMMISSIONER: If these people are under the national building trades award, I don't know what it's new name is, National Building and Construction Industry Award 2000 and/or federally registered agreements why shouldn't - I don't see how AAA - - -
PN73
MS MALLIA: That's the assertion of the employers. There is a State project award on that site. I understand Hanson and Youngpert as the project managers do have a federally registered enterprise agreement with the CFMEU. Apart from that I don't see any reference to any other employer here that is operating on that site that can be identified which gives rise to any other federal enterprise agreements that are affected or whether they do have federally registered enterprise agreements.
PN74
All we have here is a statement of one project manager about a conversation with an official of the CFMEU and that's it. We've got a situation where a formal hearing has been set down for Justice Cavanagh to deal with exactly the same issues and exactly the same evidence. It seems to me that it would be appropriate for the Federal Commission to let that situation play out. I don't see Mr Jansen here. I don't know if he's available for cross examination based on his affidavit.
PN75
THE COMMISSIONER: Except that it would be a bit of a - - -
PN76
MS MALLIA: And we are in the process of responding to that very evidence this morning in relation to the proceedings this afternoon. It just makes it very difficult to respond - - -
PN77
THE COMMISSIONER: It's your action so you just have to be in two places at once. The fact is, whatever Justice Cavanagh does I don't think she can give an order that would impact on employers or employees under a federal agreement. It's a dog's breakfast in this industry because you've got State Awards and Federal Awards and agreements everywhere and probably AWAs in some places, well, be that as it may, 127 is aimed at being an efficient way of dealing with disputes and I'm not sure that 111AAA has a role to play but it certainly has a role to play if we were talking about an industry solely State covered. Well, that's one point you make and I take that on board. What else do you wish to say?
PN78
MS MALLIA: In relation to the various matters that have been put to you this morning, firstly we would say there's no industrial action here, that all you have is the organisation of a rally to take place at 12 o'clock tomorrow in front of the premises of the Royal Commission. The employers haven't even provided evidence that anyone is even going to attend the rally. We have made communications that a rally is going to take place. They have put forward a statement or an affidavit by Mr Jansen about a conversation he had with an official of the CFMEU and that's the extent of it. We don't accept that the organisation of the rally if that is indeed the complaint is itself industrial action and would give rise to any ability of the Commission to make orders in the circumstances.
PN79
Various allegations have been made. Mr Thomas has used a multitude of hyperbole to talk about coercion and the like, not evidence forthcoming in relation to those allegations. I'm not in a position to address general views that he has about the rally and the motivations for the rally tomorrow. All we have gain as I've said once statement from one project manager in relation to one conversation with one union official and I'm not in any position, nor is the union in any position, we'd reserve our rights to be able to respond to any broad submissions that Mr Thomas has made in relation to any coercion or the terminology that's used, it's not substantiated by any evidence whatsoever.
PN80
There's no dispute between the members of the MBA generally or the unions listed to this application. We don't know how the dispute resolution procedures in any award should it apply or enterprise agreement applies to this situation. We'd say there's no industrial action. As far as the contents of MBA1, it's quite clear, it says there will be a rally at 12 o'clock in relation to the issues listed. Whether or not the Royal Commission is looking at these issues, how it's looking at these issues, is completely irrelevant. The union is entitled to have a viewpoint. We are entitled to express that viewpoint. There's been an endorsement by several unions of a lunch time rally tomorrow afternoon to express in accordance with the law those viewpoints and I don't see how anything that Mr Thomas puts to you in his MBA4 or in relation to how the Commission is actually dealing with the issue of OH&S is relevant in any way, shape, or form, unless he intends on bringing Commissioner Cole in here and questioning him how he's been dealing with the issue of Occupational Health & Safety and a myriad of other issues. We are entitled to a view and entitled to organise ways to express that view.
PN81
We'd say that the attendance by employees tomorrow should they choose to attend the rally is not industrial action which gives rise to a situation where you need to exercise your discretion to award orders. There's no evidence that any official of the unions directed, encouraged, incited, coerced anybody to attend that rally. These are merely submissions made to you from the bar table by Mr Thomas, entirely unsubstantiated by the evidence before you. Certainly I'm sure Ms Mifsud will make the submissions that Mr Riordan's statements to the New South Wales Industrial Relations Commission supports that.
PN82
As for there being clear evidence that major construction sites will stop again, there's no evidence before you. I can't even respond to it. There isn't even any evidence before you that the sites that are affected are nothing more than the Concord Hospital site and I'll get to that particular site in a moment. So it's very hard for the union to respond to allegations that sites are going to stop and the industry is going to come to a standstill when the employer organisations at the bar table haven't provided a skerrick of evidence to support that allegation, certainly given the union nothing to go on as far as addressing their general complaints.
PN83
As I've said any matters which have led to the establishment of the Royal Commission are not relevant to these proceedings. You have to satisfy yourself that (1) there is an industrial dispute which we say there isn't, and you have to satisfy yourself that there is industrial action which would give rise to yours exercising a serious discretion, the issuing of orders, to make certain conduct unlawful. That's the effect of the orders. They are to find that conduct entered into in breach of those orders is unlawful and there is nothing here that we say which would support such orders being made.
PN84
In relation to the orders sought themselves, they are phrased in the most broadest of terms. Firstly, the order is binding upon the Construction, Forestry, Mining & Energy Union. That's a union that is federally registered and has members all around Australia in four or five, if not more, different industries. If orders are to be made in these circumstances they should be substantially narrowed to address the concerns or the action that the Commission finds is actually being undertaken or threatened to be undertaken.
PN85
We say that the industrial action which is listed in clause 3 - there's no evidence of any of that type of action being taken or being proposed in return. There's no evidence of any authorisation of industrial action by the CFMEU. There's no industrial action taking place or proposed to be taking place that falls within the very broad terms of clause 3.3 of the orders sought. The order doesn't specify beyond a listing of the unions and a broad statement that it should apply to all officials, employees, and members of the union, anything else specific doesn't relate to any particular employer, doesn't relate to any particular site, because the employers here at this table have not been able to provide any evidence apart from what they say has occurred at the Concord Hospital site.
PN86
In relation to the Concord Hospital site we had a similar difficulty yesterday. The MBA bowled up a whole heap of submissions about various things that have happened. They have since filed their evidence in support of their proceedings in the State Commission. That evidence is essentially the leaflet and a version of Mr Jansen's statements. Upon receiving this statement I've had discussions with executive official of the union, Mr Brian Parker, and I'm aware that he's attended the site this morning to clarify the situation on that site. I haven't because I'm here this morning being able to find out what has occurred in relation to that.
PN87
What I believe are the concerns of Mr Jansen and Hanson and Youngton will be more than adequately addressed which would then deal with that particular site and in the circumstances see no other basis upon which you can at this stage, you can at this stage exercise your discretion to make orders under section 127 of the Workplace Relations Act.
PN88
THE COMMISSIONER: What did you say about Mr Hansen?
PN89
MS MALLIA: Mr Parker attended the site this morning to speak with site management and also to speak to the employees on site. My understanding is to make it very clear that this is a lunch time rally, that is people want to attend that rally then they should make whatever arrangements they need to make with their employer, if that's possible, and that it's not the intention of the union to have the site closed down. I mean, one of the matters raised, put to you here is that you know, the sites are going to close down from 10.30 or 11 o'clock. Well, there's no evidence here that suggests that's going to occur apart from this one statement by Mr Jansen which the union, the assistant secretary of the union, Mr Brian Parker, is addressing this morning and which I'll know more of when I get back to the office.
PN90
THE COMMISSIONER: Thank you.
PN91
MS MALLIA: So far as Mr Irving Warren's comments about his experience over the last 20 years: well, unless he is going to stand in the box and let me cross-examine him about that experience, I can't see how his submissions from the bar table assist you any further. You have a situation before you. It relates to a particular event tomorrow and any experiences or otherwise that Mr Irving Warren might have had over the last 20 years aren't relevant to your deliberations and nor are they supported by any evidence. They are just assertions made from the bar table. I think that's all that I wish to put to you at this moment.
PN92
THE COMMISSIONER: Thank you. Yes, Ms Mifsud?
PN93
MS MIFSUD: Thank you, Commissioner. We would strongly support the submissions made by the CFMEU this morning particularly in relation to the matters being dealt with in the State Commission both yesterday and this afternoon and particularly in relation to exhibit MBA2, an affidavit signed by Mr Bernie Rearden who is the State Secretary of a state-registered organisation and does not have a single industrial instrument that covers any employees in the construction industry that is registered in the Federal Commission. Now, I'm not aware of any industrial instrument, bar the Australian Workers Union either, that is registered in the Federal Commission in relation to the construction industry.
PN94
As I said, these matters are being dealt with in a complete formal fashion within the State Commission and we would be seeking that you use your discretion under 111AAA(1). This is a lunch-time rally. We do not feel that it is industrial action or purports to be any kind of an industrial dispute. As you can see, in Mr Rearden's affidavit, at point 6, he says that he has made it explicitly clear that the rally is to commence at 12 o'clock and is being held at lunch-time.
PN95
In relation to the question that you asked my friend from the Master Builders Association about the communication to members at this late stage: it was our understanding at the Commission conciliation yesterday, in the State Commission, that the issue was not about the metro area, that they didn't have a problem with the metro area attending the rally; it was more to do with the surrounding areas, for example, Parramatta site, Concord site.
PN96
Now, he addresses the issue of communicating with the metro area and saying that the unions could get in touch with those employees but that was not the issue yesterday. The issue yesterday was about the broader areas and those construction sites. The only evidence that has been put on is in relation to the Concord site. There hasn't been any evidence provided in relation to electricians or other industries and we would be asking that this matter be dealt with using your discretion.
PN97
THE COMMISSIONER: Thank you, Ms Mifsud. Yes, Mr Beer?
PN98
MR BEER: Thank you, Mr Commissioner. I wouldn't wish to go over what has been said by my colleagues. I fully agree with all that has been said. I just would like to put on the record that the AMWU fully supports the holding of the rally. We believe that it is necessary to draw both the attention of the workers and the general public to the issue of occupational health and safety mainly.
PN99
We have a shocking industry in which there is at least - or has been - a fatality a week and it's ongoing. The whole activity of the Royal Commission seems to be aimed at arguing that the unions have transgressed in various ways; but occupational health and safety has been buried. Our attitude is that the only way that people are going to focus on one of the main issues affecting construction workers in New South Wales is by holding a rally where the press will be forced to report what the issues really are. So, from that point of view, I believe it's most necessary for our union to give full support to the holding of the rally.
PN100
At no stage have we told workers on job that they must attend the rally. We have told them what the issues are they have taken voluntary decisions that they will attend the rally. Now, I must say that I haven't looked at the train schedules or bus schedules to work out whether it's possible for somebody to catch a bus, get into the rally and get back to work within the lunch-hour. That's a decision that individual workers will have to make because there's no way that the union has the logistics to work that out.
PN101
All I can say, Mr Commissioner, is that I cannot see any possible way in which, at the end of the day, the rally could be called off if that is what the Master Builders and Bisco are seeking. I must say that it's locked in stone, as I would see it. There's no possible way that the unions could contact their members in time to call it off. What will be will be.
PN102
Now, I can understand that that might not make the Master Builders or Bisco happy but the unions quite genuinely believe that this is the only way that they're going to get the public and the unionists to understand what the issues are. So I would leave it at that, Mr Commissioner.
PN103
THE COMMISSIONER: Thank you. Yes, Mr Thomas?
PN104
MR THOMAS: Thank you, Commissioner. Commissioner, can I first go to Ms Mallia's submissions to you regarding section 111AAA of the Act? It is quite clear that, on a number of building sites in the Sydney metropolitan area, those sites could be predominantly, I would suggest, covered by awards of this Tribunal but, there also being awards of a State Tribunal in operation, there is a clear involvement of two Tribunals.
PN105
In my submission to you, it is not necessary to refer to section 111AAA at all. The agreements certified by this Tribunal, the awards brought into operation by this Tribunal, have their own force and the proceedings before you here today focus on a significant cross-section of the industry that relies upon those industrial instruments.
PN106
It is in accordance with the Federal law that provides the platform for those instruments to be brought into operation that we also seek this redress in response to what we see as, however you characterise it, conduct which is inconsistent with commitments made by parties to those instruments. I refer, of course, to the dispute settling procedures, be they incorporated in awards or certified agreements, as well as the very clear fact that exists that this stoppage is unprotected action - quite simply.
PN107
Let us take the most favourable interpretation that we can put on it. Nobody is walking away from the fact that unions have attempted to organise a rally in protest at the Royal Commission tomorrow over a range of issues, some of them industrial, some of them not.
PN108
The dot points in the third paragraph clearly indicate that some of the subject matter is industrial, some of it is not and how are we to achieve this rally? Well, we're going to stop work in time to permit employees to travel to Goulburn Street, City, we are going to permit them time to assembly in the form of a rally, we are going to allow the rally to go ahead, we have no program or anything like that as to how long the rally is going to run. No indication that the program of the rally is limited to the time that would be necessary, for example, to allow an employee to travel from a major site in the inner west of Sydney to Goulburn Street, participate in the rally and then get back to the site in time to start work after the 30 minute lunch break.
PN109
The fact of the matter is, I draw your attention and that of my colleagues to the definition of industrial action provided at section 4 of the Workplace Relations Act:
PN110
Failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.
PN111
and I suggest that in circumstances where you have a number of people agreeing to attend this rally or deciding at the recommendation of their union to attend it or by whatever process is involved, there is a process where in terms of simple fact of the employment contracts concerned, you have unauthorised absence encouraged, incited, coerced or whatever else by a number of unions that have authorised the pamphlet that you have before you as exhibit MBA 1.
PN112
Now, my colleague, Mr Beer refers to the logistics. The unions don't have the logistics between now and tomorrow morning to advise their membership not to attend the rally. They have also completely ignored, it would seem, the logistics of conducting a rally. How they would get there, what the program of the rally would take, how long it would take.
PN113
If there was to be any legitimacy to what they are putting to you today, they would be able to say, yes, this rally is going to take so long and there will be such and such speakers and this is it and they would be able to provide you with some assurance that the rally could be conducted in such a way that there would be no breach of employees obligations to their employers as a result of attending. Of course, it is ridiculous to suggest that they would be physically able to provide you with that guarantee.
PN114
What they are saying instead is well, look, there's going to be this rally, we want employees who are members of the unions supporting the pamphlet for a stopwork, go to the rally, participate in the rally and after that well, who knows. As far as it being hard to respond to allegations that a stoppage is being organised, section 127 by its very concept provides a means whereby parties to awards or agreements can seek orders relating to intended conduct in time for that conduct to be the subject of an order prohibiting it and that has been the intention of the MBA and other employer organisations supporting the MBAs application.
PN115
The matter was notified on Friday. It is before you today. It is before the New South Wales Tribunal currently simply because of a self evident fact that there are other organisations involved in the proposed action that rely on state coverage in an industry characteristically mixed in coverage and my colleague reminds me of apprentices who, of course, will be exempt from this action anyway but, nevertheless, it goes to highlight the mixed nature of the coverage.
PN116
Purely and simply, we seek relief from what we see is an unacceptable intervention in contracts of employment between member companies and their employees and we seek that redress by way of order under section 127. As far as the structure of the order is concerned, it follows the definition of industrial action provided by section 4 of the act and it can be related back to the provisions of section 4 of the act.
PN117
As far as the ability of the unions here to go into the field and convey advice to their members regarding an order made by this tribunal, I don't know how many people carry state and federal authorities for the AMWU or the ETU or CEPU, but certainly the CFMEU has significant resources that they could deploy to advise their members of an order made by this tribunal today and I would suggest that with the technology available, it would be relatively easy to cancel the rally proposed to be undertaken tomorrow.
PN118
In those circumstances, Commissioner, I ask that you proceed to exercise your discretion under section 127 of the act and to make orders in the terms that are before you. As the Commission pleases.
PN119
THE COMMISSIONER: There's no need to respond is there, Mr Warren? You're not the notifier, you're not the applicant.
PN120
THE COMMISSIONER: Yes, I propose to deal with the matter now. First of all, I don't accept the argument that section 111AAA inhibits the Commission. I would go into it in greater detail on the basis that there are clearly federal awards or agreements in play and I'm not sure that 111AAA has any role to play but more importantly, rule 21 of the Commission's rules makes it clear that any application under 111AAA must be in writing and served on the parties. That hasn't occurred. I understand the circumstances but nonetheless I don't believe that can be just waived today so I don't believe that should inhibit me.
PN121
Now, in respect of the jurisdictional requirements that are set out under section 127, I am satisfied that they're met. I mean, there is clearly work that is governed by the sort of instruments that are set out in 127. I'm also satisfied that section 4, together with the provisions of 127 which talk about probably and impending etcetera are met or are satisfied in the sense that the industrial action is threatened and I consider probable.
PN122
It may be that the rally is a fizzer and no one turns up as the unions say but that is not what the unions hope for. They in fact hope that it will be a success. I think Mr Beer got closer to that than the others but nonetheless, I'm prepared to accept that the unions have put some effort into getting people there and people will be there and there will be industrial action and at this point, that industrial action is a probable outcome and as I said, that satisfies 127.
PN123
The next point, of course, is whether I should exercise my discretion. Everybody knows 127 is not an automatic outcome and it doesn't provide for automatic outcomes. Just because there's industrial action doesn't mean orders of this kind are issued and the reason is that, of course, they are serious matters which can have serious consequences because if an order does exist, if it is then breached, that has serious financial implications for employees and trade unions if the matter is seized by the Federal Court or some other court. So that is the reason why it's not automatic and it's certainly not a walk up start.
PN124
Given all that, I need to give weight to a whole range of considerations and facts that inform me as to the current situation and having heard the parties, I find as follows and that is firstly, the industrial action is not protected action. I also find that it is contrary or I'm prepared to assume that it is contrary to disputes procedures in either awards and or agreements. Mr Thomas said so and nobody contradicted him so I'm prepared to accept that.
PN125
I also find that the attendance by employees is not to attend a political rally. The Commission has in the past issued 127 orders where people are congregating or stopping work in support of Medicare or in support of anti apartheid measures etcetera. I don't think 127 goes back to the apartheid days but those kind of orders certainly have been given because they were political rallies. I don't find this is a political rally. This is an industrial rally. It is about matters concerning the employees and the employers of the industry. So whatever illegitimacy there is with political issues that really one might say why are the building workers sticking their nose in, this is not such a situation.
PN126
I also find that the action by the employees is not aimed at their particular employer, nor is it a pretence or a fiction in any way where they are using this as some kind of excuse to hurt their employers. It seems to me that the employees are at least in this instance innocent victims but certainly not either the direct or indirect subjects of the grievance that the unions are seeking to generate.
PN127
I also find that the subject matters identified by MBA 1 and specifically those five dot points do not seem to me to be particularly untoward items of concern. In fact, they're issues such as workers compensation, fraud, safety standards, use of illegal immigrants, one might almost suggest that they might have some popular community support if it came to that, nor are they matters that I might describe as selfish.
PN128
At the bottom of this action or hidden somewhere in this action, there is not a demand for an extra $5 an hour or better redundancy pay or whatever so in that way, it is self evident that the action is one aimed at matters that don't go to the hip pocket of the employees concerned because if it did, then I would think that would be a clear breach of agreements that the unions and the employees have signed with employers.
PN129
I'm also satisfied that while there is to be an impact by the stoppage that the unions are making attempts to minimise any early leaving and the statutory declaration of Mr Riordan attests to that. I'm not so happy with the possibility that the people will not return to work but there is really no evidence that they won't return or won't make efforts to return to work. One would expect that building sites in the CBD, although if it goes for half an hour, people would go back if nothing else but to not lose as much pay as they ought, but there is no doubt that in the more distant localities, a return to work is possibly not something that can be anticipated and I give that weight.
PN130
I also give weight to the fact that this is a one off event. It is not industrial action that is persistent. That is, there is nothing before me to suggest that there's going to be another rally next week or in a months time even now. It may be that there have been similar rallies in other capital cities but that's not before me and I'm not going to visit any such consideration on the Sydney or Sydney suburban employees. As far as they're concerned, this is a one off, as I said, not a persistent action.
PN131
I also have some concerns as to whether the order would be effective. I understand what Mr Thomas has said about the ability of unions to bring certain matters to their members attention. I dare say the unions could do so but it may very well be by civil disobedience they may just choose not to so the effectiveness of the order could only really be if the employers could somehow curtail the action and some question mark really exists as to whether they could, but that's not one of the principal considerations. Even if some jobs could be prevented from attending, that would be some work and some outcome that might be positive and I give that consideration.
PN132
I also note, although it's not pressed, there is nothing in the order that suggests, that goes to the calling off of the rally. The order can only go to industrial action so the decisions by the four or five unions to hold the rally, I don't think the Commission can do anything about that if a whole bunch of paid union officials turn up or people on annual leave turn up, well, I don't see how the Commission could possibly see itself restricting their ability to exercise their freedom of assembly and freedom of expression, but in any case, that's not pressed and I note it nonetheless.
PN133
There may also be a question of whether the order sufficiently specifies persons because of the difference between state and federal coverage but again I take the same view as with bringing the matter to the attention of people, even if it's brought to the attention of some people and some people under federal awards, then the order would have a work to perform and the fact that it couldn't get to everybody or there might be some confusion, I don't think is necessarily something to weaken the discretion to be exercised by the Commission.
PN134
I also finally indicate that it's a pity to this Commission that the concerns of the unions cannot be better be brought to the attention of either the Royal Commission or the Government, that is to bring their concerns in some other way rather than to stop work and bring a cost of employers and I've given that consideration.
PN135
Finally, I make this broad comment. The Commission often has before it circumstances that it is not happy with and those circumstances are often generated by employees and often also generated by employers.
PN136
A clear example is a decision by profitable companies such as banks. I'm not bank bashing but it's one that just seems to have appeared in the papers recently where they are profitable and yet despite also to cut jobs. Now, that's not a desirable thing and yet the Commission does nothing about that and it does nothing because it's not the Commission's role to run enterprises.
PN137
In this instance, my view is that the unions might better have dealt with this in another way, but on the other hand, it's not the Commission's role to run the policies and the actions of trade unions. Just like it understands that banks have responsibilities almost primarily to their shareholders to maximise profits, then the Commission understands that unions have certain roles to play, certain imperatives that really shouldn't be lightly interfered with.
PN138
As I said, it notes those outcomes, either by banks or by unions without in any way supporting them but doesn't feel necessary to interfere on each and every occasion when such unhappy circumstances come before it.
PN139
Weighing up all of those matters giving them due weight, I have decided not to exercise my discretion. I will not issue orders pursuant to section 127. I would also indicate that I will take no action arising out of the section 99. It's true that section 99 opens up the ability to conciliate. No one has pressed me for conciliation. I note that Justice Walton attempted to and was unable to prevent the action. I think the unions would play with a straight bat as far as any conciliation is concerned, it's not going to achieve much. It's unfortunate but in the circumstances, as I said, I don't propose to do anything about the section 99 application either.
PN140
In those circumstances, these proceedings are now adjourned.
ADJOURNED INDEFINITELY [11.03am]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2002/3547.html