C2002/182, Transcript of Proceedings [2002] AIRCTrans 3704 (20 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

WT05323

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER O'CONNOR

C2002/182

UNITED MAINTENANCE PTY LTD

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION -
WESTERN AUSTRALIAN BRANCH

Application under section 127(2) of the Act
to stop or prevent industrial action at the
BP Kwinana Oil Refinery site

PERTH

12.08 PM, THURSDAY, 5 SEPTEMBER 2002

PN1

MR C.M. BORLASE: I appear on behalf of United Maintenance Pty Ltd.

PN2

MR T.R. KUCERA: I seek leave to appear for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of workers, sir.

PN3

THE COMMISSIONER: Aren't you an employee of the Union?

PN4

MR KUCERA: Yes, sir, but as a counsel I still have to seek leave, sir.

PN5

THE COMMISSIONER: Not as an employee you don't.

PN6

MR KUCERA: I am happy to proceed then, sir.

PN7

THE COMMISSIONER: Okay.

PN8

MR BORLASE: Thank you, sir. Sir, this is an application pursuant to section 127 of the Act by seeking an order in the terms which have been filed in the Commission that employees effectively cease industrial action in which they are currently engaged and to return to work and continue to perform work in the normal course of events. Sir, by way of background, I need to take you back almost 3 or 4 weeks now. There was an incident involving a crane and a Mr John Brenchley on site at the BP Refinery. On 13 August there was an investigation into that incident commenced by two United Maintenance employees and two BP representatives on the investigation team.

PN9

On 29 August 2002, there was a report issued to Mr David Smith who is the United Maintenance Contract Manager on site. Effectively, that report indicated that the cause of the accident was driver error and failure for the driver to carry out certain pre start checks. On 30 August 2002, which was last Friday, Mr Brenchley was on a pre arranged rostered day off and Mr Smith delivered a copy of the report to Mr Brenchley at his home and asked him to review that particular report.

PN10

At approximately 10.30 on that morning, Mr Brenchley called Mr Smith and asked him to meet to progress the matter as a disciplinary matter and at 1 o'clock that day, Mr Brenchley, accompanied by Mr Battersby, who is a union representative at the site, met with Mr Smith and Mr Jim Duffy who is a United Maintenance superintendent. The report was discussed. Mr Brenchley raised a number of concerns about the report which Mr Smith advised that he would investigate in relation to Mr Brenchley concerns and contact him on Monday, 2 September.

PN11

On 2 September, Mr Smith rang Mr Brenchley at approximately 12.10pm to advise that BP, who is the client who controls the site, had withdrawn Mr Brenchley's access to the site. Now, Mr Brenchley, in addition to being on the rostered day off on 30 August, was also on pre arranged long service leave that had been booked, obviously, entirely separately to this particular incident and he was on long service leave for a period of 9 weeks from 2 September through to a point which is 9 weeks hence from here.

PN12

Mr Smith also advised Mr Brenchley that there would obviously have to be a further investigation into the report and the whole disciplinary process and that is subject to the issues that he had raised with his concerns over the report. At approximately 1 o'clock or a little bit after 1 o'clock, Mr Smith met with Mr Youens and Mr Battersby, who are both union representatives on site and also advised them of Mr Brenchley's access to site had been withdrawn by BP.

PN13

Similarly, at about the same time, Mr O'Byrne, who is the company's Industrial Relations Officer, Employee Relations Officer, advised Mr Saunders of the respondent union of that same situation. At approximately a quarter to 2 on that day, Mr Smith rang Mr Brenchley to advise that Mr Darryl Bertram, who is one of the officers of BP who is responsible for determinations in respect to people's access to site and safety issues, would address the concerns that Mr Brenchley had raised with respect to the report on Friday, 6 September, as Mr Bertram is currently overseas as I am instructed.

PN14

On 4 September 2002, there was a meeting at BP at 7 o'clock between Mr Colin Saunders and employees of United Maintenance. Employees returned to work at 8 o'clock and then there was a further meeting which took place at 8.25 between Mr Smith, Mr Duffy, Mr O'Byrne and Mr Saunders of the AMWU, Mr Battersby and Mr Youens, being the shop steward representatives. At that meeting the company was advised that employees and the union wanted Mr Brenchley's site access reinstated. And at that particular point in time, they were advised by the company that they would discuss the issue with BP on Friday which would be when Mr Bertram returned as a part of the whole investigation process that need to be conducted in terms of the safety report that had been generated as a consequence of the earlier incident on 12 August.

PN15

They were also advised that the company would advise the union of the outcome of that meeting on Friday, 6 September, or at the latest, on Monday, 8 September. At approximately 2 o'clock on Wednesday, 5 September, Mr Youens and Mr Battersby conducted a further meeting of employees and then at 2.30 yesterday, Mr Youens and Mr Battersby advised Mr Smith that employees were on strike and would meet again at 7.00am on Friday, 6 September.

PN16

Sir, you would be conscious of the history of the site in terms of their industrial relations. There has been a number of applications which have been before you. One being in matter C number 5961 of 2001 which was in approximately December of last year and at that particular point in time, that was about the fourth occasion since 18 September that employees at United Maintenance had taken industrial action. There has been other matters that have been before the Commission as currently constituted in terms of industrial action at this site as well. The last of which was in matter number C2002/113 which resulted in orders of this Commission that employees return to work. And that was an order which was to remain in force for a period of 14 days.

PN17

I am instructed that that particular order was breached in the first instance and the company had to file applications for enforcement in the Federal Court for an injunction and employees only returned to work approximately one hour before that matter was due to be heard by the Federal Court. Sir, in respect of this application, the application is again seeking orders for a return to work by these employees and no further industrial action to be taken. We have also made application in that order that it would be for a period of 12 months.

PN18

Now, the basis of that, we say to the Commission, is that there has been obviously quite a lengthy history of industrial action at that particular site and that there has been a continual disregard for the dispute resolution process which is contained within the agreement and the opportunity for - - -

PN19

THE COMMISSIONER: To my mind, correct me if I am wrong, but hasn't there only been one direct case of you seeing employees taking industrial action; wasn't the stuff last year created by a picket line by another union on the site?

PN20

MR BORLASE: It was effectively a refusal of those employees to cross the site in those particular instances although there was - - -

PN21

THE COMMISSIONER: Well we don't know that, do we? They may well have had fear for their own safety.

PN22

MR BORLASE: Sir, I think the evidence that was given in the last matter was that there was just simply a straight refusal to cross the picket line. I have Mr Smith here who I think it might be wise for me to actually put him in the stand to give evidence in respect to the issues which have occurred in the process today and if need be, for evidence in terms of what happened.

PN23

THE COMMISSIONER: No, I will take your word for it.

PN24

MR BORLASE: Sir, I don't believe that there were any safety issues or concerns of - - -

PN25

THE COMMISSIONER: Well, hasn't the Federal Court just awarded a substantial amount of money against Patricks for forcing a worker to cross a picket line and he then had depression and stress as a result of that?

PN26

MR BORLASE: Sir, I would separate this issue out quite distinctly from that. There has been no indications of that type of behaviour or even that type of claim from employees in this particular instance or certainly in those issues which arose last year. The actions which had quite historically occurred on this site has been a propensity of the union to have employees engaged in the industrial action and to refuse to attend work as they are required to do. And again, in the last instance as you will be aware, you felt it obviously necessary at that particular point in time to issue orders for employees to return to work and as indicated to you, it was only under eventual threat of injunctions from the Federal Court that these employees were prepared to abide by the terms of your order.

PN27

THE COMMISSIONER: Yes. Sorry, continue.

PN28

MR BORLASE: Sir, subject to a - I might just ask the union if they would be prepared to indicate whether they are prepared to accept what I put as submissions from the bar table in respect of the factual situation there or whether it is necessary for me to call Mr Smith to give evidence in respect to that matter.

PN29

THE COMMISSIONER: Yes, Mr Kucera?

PN30

MR KUCERA: Yes, I am happy to comment, sir. The union's position in relation to the orders sought, the order in its form appears to - - -

PN31

THE COMMISSIONER: Do you accept that what Mr Borlase has put is a factual account of events that have - - -

PN32

MR KUCERA: Only in part, sir. What Mr Borlase seeks with his application is, I suppose, an order of the type that was issued by the Commission in a decision involved CFMEU and Coal and Allied Operations. We would submit, sir, that there is no pattern on intermittent or ongoing illegitimate industrial disputation brought about by - - -

PN33

THE COMMISSIONER: But if this bloke is on long service leave, what the heck are the blokes going on strike for?

PN34

MR KUCERA: I will get there, sir. The position is that as you quite rightly pointed out before that there has only been once incident and that was early this year in relation to industrial action that was taken by employees that was directly attributable to the United KG employees themselves and that obviously related, sir, to work that is ordinarily performed by AMWU member employers by United KG at BP being outsourced to someone else.

PN35

This dispute relates to something completely different. It is entirely unrelated to the previous dispute and relates to disciplinary action that has been taken against an employee by United KG in relation to the incident which occurred on 12 August. We would agree that there was an incident on 12 August; it was incident involving a crane and there was some minor damage to the crane. Following the incident, sir, Work Safe were contacted; they didn't believe that the incident was worth them attending and the report itself actually states that Work Safe were of the view that it wasn't an incident that was notifiable to Work Safe.

PN36

What actually came out of the report was that - and there are a number of versions of the report, we are not sure what the final report is and that is part of the problem that we are facing but it appears that the crux of the report is that there was to be some disciplinary action against the crane driver. Now the incident, sir, interestingly happened on 12 August. The final report was not released or issued until 28 August and our member, in that time following the incident, was then despatched to other crane driving duties on site driving a FRANA crane.

PN37

The company did not regard the issue as so serious as to suspend his permit at that time and we would say that the incident itself doesn't warrant his permit being suspended now. But the most interesting issue at the end of all of this, sir, is that the report that was issued by the company, and I am hoping that Mr Borlase is going to tender this in evidence because it is a material document that is important to the proceedings, sir, was that the recommendation at the end said:

PN38

BP and United KG management must determine and define the appropriate disciplinary action that will be taken with the crane driver involved in this incident.

PN39

The position that appears to be loosely put by the company at the moment is that they have no say in the final outcome as to whether the crane driver's pass should or should not be removed. In relation to the breach of the disputes procedure, sir, the union rejects that submission from the bar table. Disputes procedure, sir, are two way streets. The first three steps of the procedure, we would say, have been adhered to. In fact, Mr Saunders met with the company yesterday and the employees, when the issue was raised at a meeting yesterday morning, we would say, followed or observed the intent of the procedure by not taking industrial action. 19.6 of the disputes procedure, which is contained in the relevant agreement states, sir that:

PN40

Throughout all stages of the procedure all relevant facts shall be clearly identified and recorded.

PN41

The company has said to us that it will provide to us copies of the reports but we have had to obtain the report through other means. So, what we are saying is that the union has attempted to adhere to the disputes procedure but the company hasn't been forth coming in providing the information and what not to resolve this particular dispute. In 19.9:

PN42

In order to allow for the peaceful resolution of grievances, the parties shall be committed to avoid stoppages of work, lock outs or any other bans or limitations on the performance of work whilst the procedures or negotiation and conciliation are being followed.

PN43

What the company has done, United KG, have done with BP is effectively lock out or ban one of our members from employment. They have removed his pass. Now, that is before our member has been given an opportunity to respond to the specific issues that are contained in the report. So, in a sense we would say he has been denied natural justice and procedural fairness. But it has also been done in a haphazard way as our member is going on long service leave.

PN44

We would say what should have happened is, he should have been allowed to take his long service leave without the angst that is caused by this situation and the issue could have been dealt with on his return then. Simply because we say, sir, the incident happened on 12 August, it took the company 4 weeks to investigate; our member was now going on long service leave for 9 weeks, it could have waited another 9 weeks.

PN45

And what we say is that instead, the company has, in its own way, breached the grievance procedure and brought this dispute on itself. I am instructed, sir, that we will recommend a return to work at a report back meeting tomorrow morning if our member's rights to work at BP are reinstated. I mean, effectively, the company might say that he is not dismissed but if BP removes his pass to enter the premises then what the effectively does is that it interferes with our member's contractual relations and interferes with his rights to work and puts him in a situation where he can't effectively work for United KG because he is locked out of his employment. And that, we say, sir, is just an untenable situation and we would say doesn't justify the issuance of a 127 order at this stage.

PN46

MR BORLASE: Sir, there is a number of issues I think which I need to address in respect to that. The first issue is that in terms of the pattern of industrial action, we would say that the pattern of industrial action is consistent in terms of the employees taking their industrial action and the company being affected and the action being taken over issues over which the company has no control. This is effectively one more of those matters. As we understand the dispute - - -

PN47

THE COMMISSIONER: Well, the company has got a fair bit of control over this issue.

PN48

MR BORLASE: Sir, if I may explain, I will run through how and why it is that I say that. The company is in the process of investigating this issue and continues to investigate the issue. Procedural fairness is being displayed towards Mr Brenchley in that he has been given a copy of the report, he has been given the opportunity to respond to that report and that that response to that report is being investigated. There is no disciplinary action which is being taken against Mr Brenchley by United Maintenance at this point in time.

PN49

At this stage, they still have an open mind, as I am instructed, towards what the outcome of this whole disciplinary procedure may be because they are going through that particular process. This dispute is not over the disciplinary procedure that United Maintenance are engaged in, in terms of their dealing with Mr Brenchley. I would put to the Commission that the procedures that they are following are, in fact, exactly those procedures that Mr Kucera has indicated should effectively take place. They are engaged in that particular process.

PN50

The dispute is over the removal of Mr Brenchley's access to site by BP. Now, as has been indicated, that has no practical effect on Mr Brenchley, as he is actually on long service leave for the next - or probably now, 8-and-a-half-weeks. And so, it has absolutely no practical effect on him what so ever. The other aspect in respect to this is that in the meetings that have been conducted between United Maintenance and the union, it has been quite clearly indicated to them that the outcome of this is subject to a review by the investigating group into that report of the further points that have been raised by Mr Brenchley in terms of his view on the report.

PN51

In terms of what may ultimately arise in terms of a disciplinary action against Mr Brenchley, if any, are still open. Now, depending upon what course of action is seen as appropriate in respect to Mr Brenchley's actions, it is obviously the intention of the company, and this has been communicated as well, to the union, I believe, that they will discuss with their client, who has control over the access to the site, whether or not Mr Brenchley's access to the site should be reinstated by BP.

PN52

We would make it quite clear that it was not United Maintenance's decision, in terms of the removal of Mr Brenchley's access to the site. That particular aspect, they had no control over. In terms of the investigative process and any discipline process that might result out of that investigation process, the company is proceeding down a well accepted path in terms of processes that are accepted and outlined by this Commission. So, we would say that there has been no action by the company which places it in breach of the dispute resolution procedure at all and further, the dispute resolution procedure where this is such a dispute, quite clearly provides at 19.7 that there be certain time limits adhered to in terms of resolving a dispute.

PN53

And further, at 19.8, obviously all the references to a avoidance of stoppages and bans and limitations and things of that nature. The company has not locked out Mr Brenchley from his employment. They were in a process of an investigation in respect to that whole report and what, if any, disciplinary steps would need to be taken against Mr Brenchley. I think it has also been indicated to the union that if the ultimate result of any disciplinary procedure is that he would not be entitled to return to site, it is not the intention, I think, of the applicant company to terminate Mr Brenchley but to look at what other work opportunities they have within their organisation for Mr Brenchley.

PN54

I think the significant issue again though is that there is a pattern in that all of the industrial action that has taken place at that site, that has not been protected industrial action, has related to issues over which the applicant company has not had control and that the company is following a correct and proper procedure in terms of Mr Brenchley and also that the industrial action that has taken place, and we would say that in terms of the proposal that has been put to you by Mr Kucera, is one which is not acceptable to the company in terms of a recommendation from themselves for employees to return to work if the individual's rights are reinstated.

PN55

That is something that is simply not within the control of the applicant company. Further, we understand as well, to give appropriate credit where it is due to Mr Saunders, that we understand that he had made a recommendation for people to remain at work in any event and that that was unfortunately not adhered to by the employees. So, a recommendation from the union for these people to return to work with a caveat attached to that over which the company has no control is obviously something that is not acceptable.

PN56

The Commission should probably also be aware that there was some $50,000 worth of damaged caused to the crane so that was not a small monetary amount in terms of the incident. So although the incident may not have been significant in terms of a safety issue possibly viewed by Work Safe in terms of their requirement to proceed any further in terms of an investigation, the accident was not insignificant in terms of a monetary dollar amount.

PN57

And further, as I have said, the company would be intending to discuss with their client the appropriateness or otherwise of a ban staying in place by BP once that whole disciplinary procedure has been gone through by the company as it intends to continue to proceed with. And on that basis, we would again seek that the Commission issue these orders in the terms that are sought.

PN58

THE COMMISSIONER: Well I don't think your agreement envisaged that where there is a dispute and the agreement specifically says that an employee shall comply with site safety regulations and non compliance will be grounds for exclusion. To exclude the person before the grievance procedure is exhausted and a part of the grievance procedure is if it can't get a negotiated settlement then you come here. This is a legitimate document, it is binding upon UC and the union. Now, I don't know what role BP has but it is a legitimate document, certified here and if BP wants to thumb their nose at those parts of the document, then so be it, but I expect all the parties to abide by it and this matter didn't need a stoppage of work but it certainly didn't need disciplinary action or action excluding the worker from the work place until the matter had been heard and determined at least in accordance with 19.8. To my mind, you are as much to blame as the union.

PN59

MR BORLASE: Sir, with respect to that, as I say, the company hasn't denied - it is not the company who has issued - - -

PN60

THE COMMISSIONER: No. You come here all the time and you are not the only people but they always fall back on BP. Well, it seems to me that BP seems to be like the Taliban. Everyone kowtows to them despite what is in your registered documents and it is not for BP to change the practices or the procedures in a document which specifically says that it applies UM maintenance workers at that site. Now, it doesn't have a caveat here that BP can override what is in these documents. There should have been no action taken against the man until the procedures were finally exhausted and they haven't been because there is not a negotiated settlement. There is obviously still a grievance between the parties.

PN61

MR BORLASE: Sir, the only aspect of the issue that - - -

PN62

THE COMMISSIONER: Somebody needs to go back and tell BP this because time and again they take unilateral action before matters are exhausted properly in this Commission or in the certified agreements that are brought to this Commission.

PN63

MR BORLASE: Sir, as I have indicated to the Commission that the access to the site is something United Maintenance does not control and it - - -

PN64

THE COMMISSIONER: Well you should have foresaw that before you entered into an agreement that has these procedures in it and you have got a couple of years to run on it, I think; middle of next year. Look, can you blokes guarantee you will get these men back to work tomorrow?

PN65

MR C. SAUNDERS: On the basis that the access for this individual which is - he is not going to work - - -

PN66

THE COMMISSIONER: Well don't worry about the access. If by the time he is ready to go back to work the access is still an issue, then you have got 19.8. You can come here and we can resolve it that way. It relates to a matter in the agreement, whether the site safety regulations have been breached or haven't been breached, whether the worker has seen the site safety regulations or if they relate to what happened. I don't know. That is a matter to be argued. But I don't think you need the blokes to be losing money because you have got access to arbitration if there is no conciliation if conciliation fails.

PN67

MR SAUNDERS: I suppose the concerns of the workers, sir, is on this occasion that the individual is going on long service leave with his family who doesn't know whether he has got employment when he returns from his long service leave or not.

PN68

THE COMMISSIONER: Well, he has got employment one way or the other but if it is still a question of - I mean, I think it is a question of him getting a fair hearing, isn't it?

PN69

MR SAUNDERS: It is.

PN70

THE COMMISSIONER: All right.

PN71

MR SAUNDERS: But it is not correct that he has got employment. It is if, as I understand what has been told to me is, is if there is work available when he returns. There are no guarantees that I have been given and secondly, he was employed at BP Refinery as a rigger in the first instance some years ago and he has worked his lifestyle about it. I just think it is ridiculous that BP be able to stand there, the fact the person is overseas somewhere so we can't have negotiations to fix these things, he is in Singapore I understand, that he goes away, he cuts off site access with the agreement of United KG because that is what the recommendation says and then puts this bloke's life in hell while he is supposed to be off relaxing.

PN72

That is what disturbs our members down there. It is a one way street and they come here with: Your Honour, it is not us. Well, it is them. It is them. And all I would ask is that if the Commission would give a recommendation, one, is that there should be a return to work. We will put that very strongly. And secondly, that site access should be made to this individual employee as far as United KG is concerned, then that will be enough in my opinion. If they want to argue then at a particular time that even though they can't give site access because BP - we will bring them back here. But the workers have got to see that this individual is getting a fair go because he hasn't had a fair go up to date and I would have to say there would be a lot of evidence given about safety on this job and this bloke is being a scapegoat.

PN73

THE COMMISSIONER: Yes, all right. Is UC prepared to say as far as they're concerned he - as far as they're concerned, full well knowing that BP are still involved, that he should retain his site access at all?

PN74

MR BORLASE: Sir, what I am instructed is that the company has given its commitment that they will have this issue resolved, I think, by Tuesday of next week in terms of the outcome of the disciplinary exercise in respect to Mr Brenchley and that they would again reiterate that it is their intention to speak to BP about this man's access to the site being reinstated if it is appropriate given the outcome of the disciplinary review process.

PN75

THE COMMISSIONER: Yes, all right. Look is it Brenchley, how do I spell it?

PN76

MR BORLASE: B-r-e-n-c-h-l-e-y.

PN77

THE COMMISSIONER: Oh, yes. All right. Look, Mr Kucera, I will issue a recommendation that the men return to work tomorrow and in that recommendation would be that UC withdraw the removal as far as they can of Mr Brenchley's exclusion to the site pending the final outcome of either a negotiated settlement or an arbitrated decision. However, if the men don't return to work then I will issue orders pursuant to section 127 in the terms that Mr Borlase seeks save for the term and the term would be a month.

PN78

MR KUCERA: No problems, sir.

PN79

THE COMMISSIONER: All right. Are you happy with that, Mr Borlase?

PN80

MR BORLASE: Yes, sir, our obviously preferred course of action would have been that an order be given that the timing of these employees is such that Friday, it is very difficult for us to be able to serve any orders on employees if they fail to - well, if they simply leave work. I am uncertain if there is any weekend work scheduled.

PN81

MR A.D. SMITH: Yes, there might be some.

PN82

MR BORLASE: Yes, there is going to be some weekend work scheduled and that would mean that - - -

PN83

THE COMMISSIONER: Well, he said, "There might be some," it doesn't sound too urgent to me.

PN84

MR BORLASE: I will just take some instructions in respect to that, sir. Sir, I am advised that there is intended to be planned work for the weekend.

PN85

THE COMMISSIONER: Is there, all right, well I am sure that - is that double dollars, weekend?

PN86

MR SMITH: Yes.

PN87

MR BORLASE: Yes, it is.

PN88

THE COMMISSIONER: Oh, I am sure they will drag themselves back for that.

PN89

MR BORLASE: The difficulty, sir, that was experienced the last time was actually the serving of the orders. People suddenly became very difficult to access and to locate in order to be able to serve the orders on the last instance and from that perspective, given the timing of people, if they fail to return to work on the Monday - sorry, on the Friday morning, it is likely that they will disperse fairly rapidly and - - -

PN90

THE COMMISSIONER: Well look, what I will do is, I will say service of the order on the union will constitute service on all the employees for the purposes of a return to work.

PN91

MR BORLASE: Thank you, sir.

PN92

THE COMMISSIONER: That is if I have to issue it.

PN93

MR BORLASE: Yes, sir. Yes, on that basis that would be acceptable, thank you.

PN94

THE COMMISSIONER: All right. Well, this matter stands adjourned.

ADJOURNED INDEFINITELY [12.55pm]