C2002/824, Transcript of Proceedings [2002] AIRCTrans 388 (12 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2002/824

HEAD HUNTERS QUEENSLAND PTY LTD

and

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

Notification pursuant to Section 99 of the Act
of a dispute re strike action by employees

BRISBANE

12.10 PM, FRIDAY, 25 JANUARY 2002

PN1

THE COMMISSIONER: Could I take appearances, please?

PN2

MR K.R. MASTERSON: I appear on behalf of Head Hunters Queensland Pty Ltd, and I have with me MR COLIN GLANFORD of Consultative Employee Services.

PN3

THE COMMISSIONER: Thank you.

PN4

MR P. SHOOTER: If it please the Commission, I appear for Australian Manufacturing Workers Union.

PN5

THE COMMISSIONER: Now, Mr Masterson, you've notified of the dispute. Would you like to make some submissions for the record?

PN6

MR MASTERSON: Thank you, Commissioner. Commissioner, we understand that a dispute existed or still exists between Bradken Industrial and the AMWU of which was no connection between that dispute and Head Hunters Queensland or Consultative Employee Services. We did not receive any notification from the AMWU of the strike action and we saw fit to phone Mr Peter Shooter yesterday at 5.30 pm and we phoned Peter on a mobile and asked if our employees intended on taking strike action.

PN7

And I was advised by Peter that he hadn't thought of that issue although I make mention that the day shift, in fact, had already been on strike since 11.30 am. This was at 5.30 pm yesterday afternoon. He advised me the resolution only applied to permanent staff and not to the casual on-hired employees and that, in fact, the casuals had gone home on day shift. We did not have any casuals, Commissioner, on day shift so the issue had no real relevance to us until the afternoon shift, hence the reason for the call at 5.30.

PN8

I requested Mr Shooter to tell his members that they should go to work and asked him to advise them of the severity of the issue. We regarded it as a legal strike action that had no relevance to Head Hunters. And I was advised by Mr Shooter that, and I quote, "I'm not going to tell them anything. I'm not sure if I can find them. And it is 5.40 pm and yes, they would still be at work." And also advised us that it was just a protest stoppage and that they would be back to work today. We proceeded to contact our employees, Commissioner, between 5 pm and 6.30 and we were advised that, in fact, they were already on strike. They were told to go home by the union. It was the advice that they gave us that the permanents had turned off the gas so that they couldn't work. They are welders, most of the employees. And that they generally couldn't understand the relevance of the issue to the contractors.

PN9

They also advised us that there had been a meeting at the site at 4.30 pm and they were told by the union, by Mr Shooter I believe, that they could work until 7.30 pm that night or they could go home now. The employees did return to work today, Commissioner, so essentially lost, I guess, half a shift. That would have been the result. We believe that the matters or the matter of the illegal strike action, in fact, is linked with the previous matters heard in this Commission, namely matter 793 and 795. And we believe that essentially this recent wildcat stoppage is nothing more than an attempt to bring some covert pressure on Bradken Industrial and Head Hunters Queensland to pay the travelling allowance.

PN10

We also believe, Commissioner, that the - sorry, we've also been advised by the AMWU yesterday of an intention to take further industrial action from Thursday 31 January in the form of a 24 hour stoppage and then threatened action beyond that if we don't concede to the claims of the union outlined in the application for the bargaining period that we discussed here on Wednesday. There have been no further requests by the AMWU since our hearing on Wednesday the 23rd, Commissioner, and there's been no details supplied regarding the union's claim for distant work or, in fact, how clause 5.9.4(b) of the Metals Award entitles their members to travelling allowance.

PN11

And I believe that was the direction outlined by this Commission on Wednesday. The notification of industrial action was sent on Thursday so essentially prepared and sent immediately after the hearing on Wednesday. Commissioner, we believe we cannot continue to operate in this commercially competitive environment with such a high degree of uncertainty and clearly that is being communicated to us by our client Bradken Industrial. We therefore respectfully request the assistance of the Commission in issuing orders in respect to industrial action between Head Hunters and the AMWU and to reconvene the matter 795 with a view to arbitrating on the matter of travelling allowance as it applies to Head Hunters, Commissioner.

PN12

THE COMMISSIONER: Mr Shooter.

PN13

MR SHOOTER: Thank you, Commissioner. Just by way of background the permanent workforce on the night shift, that is the night before last, took industrial action over an issue that had been going on for some time in relation to matters relating to pay, people not being paid correctly. This is an ongoing issue. The night shift the night before last went home. The day shift - - -

PN14

THE COMMISSIONER: So they are - Mr Shooter, are they employees of Head Hunters?

PN15

MR SHOOTER: Of Bradken.

PN16

THE COMMISSIONER: Of Bradken.

PN17

MR SHOOTER: All employees of Bradken. The dispute has got - does not relate to any of the contract employees, Commissioner.

PN18

THE COMMISSIONER: Mr Masterson obviously has a different view.

PN19

MR SHOOTER: No, I don't think so.

PN20

THE COMMISSIONER: Well, his employees have taken - - -

PN21

MR SHOOTER: The dispute over this particular issue, that is the issue of pay - - -

PN22

THE COMMISSIONER: Right.

PN23

MR SHOOTER: - - - relates only to employees of Bradken. The day shift met the next morning, Commissioner, that is yesterday morning and resolved to also take industrial action. And I was contacted and went to the site yesterday morning at 9 o'clock. I met with management, endeavoured to negotiate - this is Bradken management - endeavoured to negotiate with Bradken management a way out of the dispute. Our negotiations went backwards and forwards bearing in mind that Bradken is a national organisation. The matter also involved the bank and I spent the entire day on the site.

PN24

The net result was that the day shift continued with their action and then the afternoon shift continued with their action. At no stage - Mr Masterson has got some of the information wrong. At no stage did I address the labour hire workers, the Head Hunter employees or any labour hire workers about any issue in relation to this dispute. At no stage did I speak to them about whether or not they should take action. I became aware that the day shift labour hire people were not there when I went to address a meeting of them that had been previously arranged at the end of their shift. That was at 3.20.

PN25

I meet them off site, because it is not a Bradken matter so I meet contractors off site, not on site. I had arranged to meet at a gate and no one turned up so I assumed they had gone home. But if they did go home they didn't go home as any result of resolution of union meeting or as a result of any discussion with me in relation to the matter. The conversation that I had with Mr Masterson yesterday - I had just got back to the union office when he rang me and asked me about, you know, whether or not this matter related to his employees and I said, "No, it doesn't".

PN26

Yes, he did say, "Well, will you ring them" and see if I can contact them and instruct them to work. And I said to him, "Well, no, look I'm - you know, it is now, you know, a quarter to 6. I am not going to. I have a commitment at 6 and I don't think I can contact them at any rate and I certainly am not in a position to drive back out to Bradken, which is an hour's drive away, to try to find them".

PN27

So he told me, "Well, I am going to find them or endeavour to find them," and I said, "Fine". And he said, "If I find them, I'm going to instruct them to - or advise them to work. Is that all right with you?" And I said, "That's all right with me." So I have not spoken to any of the members. I don't actually know their names, the labour hire people. When I've met with them out there at Bradken previously I'd meet with them as a group. In some instances I know, you know, which labour hire companies they work for. I actually don't know who the people are that work for Mr Masterson; though they are my members and have been attending the meetings, I don't know how to contact them individually. I was notified of this hearing at 11, and I have not been able to locate any of my members to ascertain what happened, but I presume they went home. I don't know, but I presume they went home.

PN28

THE COMMISSIONER: Were they at the meeting that you spoke of, Mr Shooter: not the one at the gate, but - - -

PN29

MR SHOOTER: Yes.

PN30

THE COMMISSIONER: - - - the one with, as I understand, employees of Bradken.

PN31

MR SHOOTER: I had two meetings, Commissioner, one in the morning, when I did a report back after I'd met management, and then I had a meeting at 4 o'clock with the afternoon shift.

PN32

THE COMMISSIONER: Well, what was the resolution of the earlier one that caused the industrial stoppage? Was it for all employees? Was the resolution for all employees at the site?

PN33

MR SHOOTER: The resolution applied to Bradken workers, Commissioner.

PN34

THE COMMISSIONER: So it's understandable that these employees may have thought that they were caught up in that .....

PN35

MR SHOOTER: They may well have. I mean, you know, there are some 200 employees.

PN36

THE COMMISSIONER: Well, I can understand Mr Masterson's concern at endeavouring to fulfil his contract if these employees have left the site.

PN37

MR SHOOTER: And I can too, Commissioner, and I had no part in the decision for them to leave the site, if they did leave the site.

PN38

THE COMMISSIONER: Well, was the decision taken as a result of this meeting that you held at 9 o'clock in the morning?

PN39

MR SHOOTER: No. The decision - I wasn't there for the stop work meeting where the decision was taken, Commissioner. It was taken before I was notified, in fact. There was an attempt to contact me at 3.30 the night before when the night shift went out, and I didn't answer my phone. I then didn't get another call until about 8 o'clock the next morning, and by then the decision to take yesterday's industrial action by the day shift had been taken, so I wasn't at that meeting. There was a subsequent meeting that I was at - mass meeting - where I reported back on my negotiations with management to endeavour to call off the industrial action and the strike.

PN40

THE COMMISSIONER: And are you aware whether any of Mr Masterson's - - -

PN41

MR SHOOTER: I am not aware, Commissioner. There was - you know, it was a mass meeting. I imagine there were about, you know, a hundred people at the mass meeting, and whether there were contractors there or not, I don't know.

PN42

THE COMMISSIONER: I don't know of the issue at the heart of the Bradken employees' industrial action; that hasn't been notified to the Commission. But are you indicating that that doesn't have any application to these contract labour hire employees?

PN43

MR SHOOTER: It has no application, Commissioner.

PN44

THE COMMISSIONER: And was that made clear at that particular meeting?

PN45

MR SHOOTER: The report back meeting that I spoke at, Commissioner?

PN46

THE COMMISSIONER: Yes.

PN47

MR SHOOTER: I didn't mention anything about contractors. I was only talking about Bradken.

PN48

THE COMMISSIONER: As a result of the industrial notification or the resumed conference on Wednesday, did you convey to your members who are the subject of that particular dispute that there was to be adherence to the disputes procedure, and that as yet the bargaining period hadn't come into force whereby any action they took would be of a protected nature?

PN49

MR SHOOTER: The meeting that I called to report back on the hearing in the Commission, Commissioner, no one turned up at. That was at 3.20 yesterday.

PN50

THE COMMISSIONER: Because they were already taking industrial action?

PN51

MR SHOOTER: Because they had - well, I assume; I didn't know. I went there expecting them to be there, and no one turned up, and it was at that meeting that I would have reported back - intended to report back on the outcome of the hearings in the Commission.

PN52

THE COMMISSIONER: Well, what is the union's intention in relation to this particular dispute?

PN53

MR SHOOTER: The Bradken one, Commissioner?

PN54

THE COMMISSIONER: No, the one in relation to the matter here today in relation to - is there any threatened industrial action?

PN55

MR SHOOTER: In relation to the stoppage?

PN56

THE COMMISSIONER: Head Hunters, yes.

PN57

MR SHOOTER: The dispute that is now the subject of this notification, Commissioner?

PN58

THE COMMISSIONER: Yes.

PN59

MR SHOOTER: The matter is over. All workers - Bradken workers and, I assume, contract workers - are back at work.

PN60

THE COMMISSIONER: And is there any planned future industrial action?

PN61

MR SHOOTER: There is no planned future industrial action. It is my belief after a full day's discussion and negotiation that the matter has been resolved.

PN62

THE COMMISSIONER: And in terms of ongoing discussions in relation to the travelling allowance which was at the heart of that dispute, what is the intended plan in dealing with Head Hunters on that particular issue?

PN63

MR SHOOTER: In dealing with Head Hunters, yesterday when I spoke to Mr Masterson we also talked about this issue. I told him that I had spoken to Bradken - no, hang on - I had two conversations yesterday. I had a conversation with another company. I'm not certain, Commissioner, but the instruction that I got from the last general meeting that I had was that if I could get no resolution at yesterday's conferences with the assistance of the Commission, then I was to notify 72 hours' notice for a potential stoppage on Wednesday. I have served those documents, Commissioner, and intended to discuss them with the men yesterday but, of course, they weren't there. It is my intention to discuss them again with the labour hire workers including, presumably, those from Head Hunters, on Wednesday afternoon.

PN64

THE COMMISSIONER: So when is that? You're saying there is threatened industrial action to occur next week?

PN65

MR SHOOTER: Next Thursday, Commissioner.

PN66

THE COMMISSIONER: And as I understand, have you now withdrawn the bargaining period notification from Consultative Employee Services?

PN67

MR SHOOTER: I believe so, Commissioner - - -

PN68

THE COMMISSIONER: And you have - - -

PN69

MR SHOOTER: - - - but I haven't actually been in the office. I believe that that has happened.

PN70

THE COMMISSIONER: And I've just been handed a file whereby you have lodged a notice of initiation of bargaining period against Head Hunters Queensland as of 18 January.

PN71

MR SHOOTER: I'm uncertain of the date, but - - -

PN72

THE COMMISSIONER: Mr Masterson, are you aware of that?

PN73

MR SHOOTER: Yes, this was the - when we discovered that Head Hunters were the - - -

PN74

THE COMMISSIONER: Employer.

PN75

MR SHOOTER: - - - employer, not CES. Then we initiated a bargaining period, yes.

PN76

THE COMMISSIONER: That document has been lodged in the Commission. Has that been - have you been notified of that particular bargaining period, Mr Masterson?

PN77

MR MASTERSON: Yes, I have, Commissioner.

PN78

MR SHOOTER: Yes, we have actually spoken about that.

PN79

THE COMMISSIONER: Right. Is there any further commentary that you wish to put on - - -

PN80

MR SHOOTER: No further comment, thanks, Commissioner.

PN81

THE COMMISSIONER: Mr Masterson, did you wish to respond to any of that?

PN82

MR MASTERSON: Yes, Commissioner, just on a couple of points. The employees outside of hours advised us that in fact there was a mass meeting, I understand, around about 4 o'clock, 4.20 pm, at which they attended. So I just find it a little bit difficult to believe that they didn't attend a 3.20 meeting, or I guess I - - -

PN83

THE COMMISSIONER: The mass meeting was after the - at 4 o'clock, was it?

PN84

MR MASTERSON: The way I understand it, the way Mr Shooter articulates it is there was a 3.20 pm meeting planned with the contract labour people to discuss the outcomes of the Commission hearing on Wednesday, which none of the labour hire people attended, and from that, as he just said, he assumed that they were off site and in fact they had gone home; but I understand there was a mass meeting at 4 o'clock or 4.20 is what my members have communicated, or my employees have communicated, which they attended, at which they were advised that they could either work until 7.30 that night or go home straight away.

PN85

THE COMMISSIONER: How many employees are we talking about?

PN86

MR MASTERSON: We're talking about three on afternoon shift, Commissioner.

PN87

THE COMMISSIONER: And at the - so how many hours did they miss of work?

PN88

MR MASTERSON: They would have missed - most of them would have missed pretty well a full shift - a whole shift.

PN89

THE COMMISSIONER: And did the other labour hire contract employees act in the same way?

PN90

MR MASTERSON: I've got no idea. I haven't spoken to them. The other - I guess the other point of frustration for me is that the discussion I had with Mr Shooter last night concluded at 5.40 and the final discussion I had with Mr Shooter about contacting his members, he made a comment that, what time is it now, and I had two witnesses to this, and I said, it is 5.40 pm, and he say, well, yes, they would still be at work. So that is totally inconsistent with what he has just told the Commission, that they didn't attend the meeting at 3.20, and in fact, he assumed at that point they were home. So I believe I was misled at 5.40.

PN91

When I contacted the employees between the hours of 5 pm and 6.30, in fact they were all home, and no attempt had been made by Peter or anyone else from the AMWU to contact them, and spoke to one of those employees again this morning, and no attempt had been made right up until roughly about 8 o'clock this morning by anyone from the AMWU to contact them. So I don't believe there was any concerted, if you like, or genuine effort to advise them that the action was in fact illegal, and they should be at work.

PN92

THE COMMISSIONER: Well, look, what I think we will do now is go off the record and have some further discussions. There are some issues that I think need to be discussed between the parties, and we may then reconvene the record if required.

OFF THE RECORD [12.32pm]

RESUMED [2.13pm]

PN93

THE COMMISSIONER: We have had discussions off the record, and the parties have had some separate discussions as well. As I understand it, we are in a position to put some comments on the record. Is that the situation? I would indicate for the record that throughout those discussions, certainly the remedies of the parties to the situation at hand have been discussed, as have the complaints of either parties and the circumstances that both parties have been placed in and were placed in when the action was taken.

PN94

I would say that the company is understandably concerned at the industrial action taken by their employees. That was, as I am advised by both parties, unprotected and lacked relevance to any action by the company or issue applicable to these Head Hunter employees. The union has undertaken, I am advised, through these discussions, to endeavour to rectify at the company's request any damage that may have resulted to Head Hunters' reputation at the site with their client, Bradken; and I also am directing the union to ensure that the outcome of Wednesday, 23 January's conference that was undertaken in this Tribunal this week - the outcome there be discussed with their members, and that there be further discussions with these members and the company prior to any further stop work discussions occurring.

PN95

I am advised by the union that they have been endeavouring to have discussions and have been open to discussions, and that they are amenable to having these discussions and, as I understand it, Mr Shooter is going to put some words to that effect on the transcript.

PN96

MR SHOOTER: Commissioner, the company have now informed me that they don't wish to have those discussions.

PN97

THE COMMISSIONER: My apologies; I should have checked as to whether there were any further developments. Please place what the developments are on the record.

PN98

MR SHOOTER: The developments are that prior to the reconvening of this conference we had - during the conference process we moved down the track of the union and the company and their employees meeting to discuss the whole range of issues surrounding this issue, and I was certainly available to be part of those discussions. We endeavoured to set a time. The company withdrew and returned and told me they do not wish to have the discussions.

PN99

THE COMMISSIONER: Well, do you wish to now put something on the record in relation to the company's request, and then we will give Mr Masterson an opportunity to comment about the company's request, about relations with Bradken.

PN100

MR SHOOTER: Certainly, Commissioner. I just restate what the Commissioner has just put on record: that any action taken by employees of Head Hunters yesterday was unprotected action. It did not result from any direction from a meeting of those employees or from any direction from me as an official of the union. The action that I understand was taken was, as I said, unprotected. I have undertaken both to the company, and I undertake to the Commission, to communicate with the company Bradken to this effect, and to tell Bradken that it is my position that any action taken by the employees of Head Hunters yesterday through their unprotected action should not impact on any commercial relationship that Head Hunters has with Bradken; that they were matters over which Head Hunters themselves had no control.

PN101

THE COMMISSIONER: Thank you, Mr Shooter. Mr Masterson, did you wish to place anything else on the record?

PN102

MR MASTERSON: Thank you, Commissioner. Just briefly to clarify, the discussion we had in the recess regarding the meeting was to do with the meeting involving the employees of Head Hunters as, I guess, a matter or an objective to clarify the process that Head Hunters went through in selecting those employees and electing not to pay the travel allowance, as opposed to a meeting conducted for the purposes of negotiating travel allowance.

PN103

We've elected not to proceed with the meeting of clarification with our employees and Mr Shooter involved, and we instead will contact our employees and discuss the matter with them individually. In terms of negotiating the matter of travelling allowance, we remain open-minded and prepared to discuss the matter. Both parties have clearly stated there has been no negotiations, and it's our view that the notification of intention to take industrial action certainly preceded any attempt to negotiate. There have been no negotiations to that point, and we believe that if the action that has been planned or intended and notified to us takes place next week, in fact, it won't be consistent with the process as outlined in the Act, and we'll reserve our position on what action we take if that industrial action does take place.

PN104

THE COMMISSIONER: I acknowledge your submissions, Mr Masterson, and I would encourage the parties, even though we have had lengthy discussions about the actions that are available to both sets of parties - both representatives here are experienced in relation to the actions that they can take in terms of this bargaining - but I would urge the parties, as both have indicated, that there may be some opportunities - even though there are some constraints on the commercial contract - some opportunities to negotiate this particular issue with this individual company here today. So I would urge you, prior to taking industrial action, to have the appropriate discussions and to see whether there can be some closure on this particular matter.

PN105

We will retain this file for some time to allow the parties to reconvene this matter with the assistance of the Commission, and whatever relevant parties you may wish to bring to this Tribunal, to assist wherever we can. I hope that those discussions do assist, and I would release the transcript for the assistance of the parties.

ADJOURNED INDEFINITELY [2.21pm]