C2002/4924, Transcript of Proceedings [2002] AIRCTrans 4141 (21 October 2002)

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Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2002/4924

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by
Cape Flattery Silica Mines Proprietary Limited
for orders in respect to the Cape Flattery Mines

BRISBANE

2.00 PM, FRIDAY, 4 OCTOBER 2002

PN1

THE COMMISSIONER: Yes, can we have the appearances, thank you.

PN2

MR I. TURNER: May it please the Commission, Turner, initial I, for Cape Flattery Silica Mines Proprietary Limited.

PN3

THE COMMISSIONER: Yes, Mr Turner.

PN4

MR J. SHARPE: May it please the Commission, Sharpe, initial J, appearing on behalf of the Australian Workers Union. Commissioner, on the phone we have Mr Daryl Noake, AWU organiser, and I believe also we may have on the phone Mr John Noble. No, sorry, Commissioner, we may not have him. We must just have Mr Noake from the AWU, organiser.

PN5

THE COMMISSIONER: Yes, thank you.

PN6

MR E. MOORHEAD: If it pleases the Commission, Moorhead, initial E, on behalf of the AFMEPKIU. Commissioner, as well, Wally Threlfall, the assistant secretary of the CEPU has contacted us and has said that he's unable to find an official in the Brisbane office to represent the CEPU and has asked that we represent him in this hearing. We apologise that we don't have it in writing but in the circumstances he asked that we represent the interests of the CEPU before you today.

PN7

THE COMMISSIONER: Yes, thanks, Mr Moorhead. Yes, Mr Turner.

PN8

MR TURNER: Thank you, Commissioner.

PN9

THE COMMISSIONER: You can take it that I've read all the contents of the notification of the dispute.

PN10

MR TURNER: Thank you, Commissioner. Before elaborating a little bit on that, Commissioner, I'd just like to have noted that we thank the Commission for responding so quickly to this matter. We realise that the application was only lodged earlier on today. The application, Commissioner, seeks orders under section 127(2) of the Workplace Relations Act, and those orders are sought because of the industrial action, unprotected industrial action, currently taking place at the Cape Flattery Silica Mine in Far North Queensland. Given that the Commission has indicated that the grounds and reasons contained in the application have been reviewed and are known to the Commission, I won't go through those step by step, but if I could just add one or two things to that, Commissioner, that aren't specifically in the grounds and reasons.

PN11

Firstly, the employees at the mine had a stop-work meeting at 2.00 pm on Thursday, 3 October, yesterday afternoon. I understand that it was at approximately 4.00 pm that those employees went to one of the general managers, Jim Marshall - and I say one of the general managers, Commissioner, because there's currently a handover taking place where the existing general manager is in fact retiring and there is a new general manager there as well and that's Mr Jim Marshall and I understand that he was approached by a representative of the employees at approximately 4.00 pm and advised that unless a Mr Rodney East was reinstated then the employees would commence industrial action.

PN12

In relation to Mr East, Commissioner, he was subject to a meeting with the company on Monday, 30 September, over a number of issues and that meeting resulted in Mr East's termination of employment and we understand - and in fact the employees have advised the company that the current action is in support of his reinstatement with Cape Flattery Silica Mines. The employees were advised that the company was unable to do that and they informed the employees that Mr East had processes available to him under the Workplace Relations Act if he wished to have the decision to terminate him reviewed and it was suggested that Mr East, as he is entitled to do, should take that action and that issue would be dealt with in the proper way and not by taking this unprotected action.

PN13

As mentioned in the application, Commissioner, the employees at the site are covered by the Cape Flattery Silica Mines Proprietary Limited Award 2000, which is a Federal Award, and also by the Cape Flattery Silica Mines Proprietary Limited Enterprise Agreement 2001. In that particular agreement, at clause 3.2, there is a disputes settlement procedure. Unfortunately I haven't got an extract of that, Commissioner, due to the haste in the hearing this afternoon, but if I might just comment on it, that procedure contains a stepped approach to the settlement of disputes with one objective is to avoid industrial action on the site. And one of those procedures is, if after certain discussions on the site have taken place the matter is not resolved, then it should be submitted to this Commission for further resolution.

PN14

Having said that, Commissioner, it's the company's view that given the reasons or the nature of the reasons surrounding this particular dispute, it would be fairly difficult for the company to take any other course but to say that Mr East should pursue his application through the proper channels. The effect of the current action, Commissioner, is - if I can comment on that: one, the company has no indication of how long this proposed - this action will continue, except that we understand, if we've understood the discussions we've had, that the employees intend to continue it until the company makes some concessions in relation to the Mr East. And the immediate effect is that there's a shift currently alongside the loading facilities at the port in Cape Flattery and for the Commission's information, the silica sand that is mined at Cape Flattery is all exported up to the Asian markets, some to Japan and I understand some to Korea.

PN15

The ship is alongside now waiting to be loaded. The immediate effect is a serious inconvenience to the Cape Flattery customers. It is a very tight market and companies like Cape Flattery cannot afford to lose their market share which would obviously have drastic effects on the viability of the mining operation. The application, Commissioner, also contains in the first page an outline of the order sought today. I've also forwarded to the Commission a copy of a draft order and I've got copies here for my friends. Would you like me to tender another copy of that, Commissioner?

PN16

THE COMMISSIONER: Yes, thank you.

PN17

MR TURNER: We submit that that draft order is consistent to the outline of the order contained in the application and we seek the Commission to use its discretion in this matter to issue that order, Commissioner. Unless you have any further questions, at this stage I have no further submissions.

PN18

THE COMMISSIONER: Just two things. What's the normal expiry date of the agreement?

PN19

MR TURNER: The agreement has expired, Commissioner. It was expired on 20 March 2002. Since that time there's been a negotiations process in place between the company and the parties and that has resulted in a document being produced and there's only one or two small outstanding matters to be finalised in that and it's intended that that agreement will replace the existing agreement, Commissioner.

PN20

THE COMMISSIONER: Yes, thank you. Yes, Mr Sharpe.

PN21

MR SHARPE: Thank you, Commissioner Hoffman. Commissioner, I've only just been given the file. I had some brief discussions with Mr Noake who we do have on the telephone. I might need to rely upon him for some of the detail with regards to the submissions that I make to you, Commissioner Hoffman. The application before you with respect to - for orders, Commissioner, pursuant to section 127, comes, Commissioner, without any supporting evidence whatsoever being called by the applicant in this particular matter. Commissioner Hoffman, what the applicant is seeking you to do is invoke particularly forceful and onerous powers that you have upon the unions with respect to this particular matter in accordance with the terms sought in the draft order that has been supplied to the Commission.

PN22

As a result of my brief discussions with Mr Noake on the telephone just prior to coming down here, he had advised me that our on-site delegate, Mr Noble, is at this very moment in discussions with the management of the employer with regards to a return to work of the employees. Commissioner Hoffman, one of the proposals that the parties spoke to at a local level today was with respect to the particular employee that was terminated, Commissioner, being suspended on full pay which our delegate had indicated to the employer more than likely would necessitate or create a return to work by the employees.

PN23

Now, my understanding, Commissioner Hoffman, and I stand corrected, is that management were amenable to that. However, there was an objection raised by their representative with respect to that course of action, possibly because of some ramifications for any further proceedings that may be instigated under other sections of the Act with regards to the actual termination when it had occurred on 30 September.

PN24

Now, Commissioner Hoffman, I say with respect to that, Commissioner, that is not necessarily a responsible action to take with respect to the proposal that is put, if in fact it is established that there is a ship sitting out waiting to be loaded, Commissioner Hoffman. What we would say, Commissioner Hoffman, is in the absence of any evidence supporting the application, in an attempt to, Commissioner, resolve this matter and achieve a return to work without orders being granted, that we adjourn into a conference, Commissioner; we have Mr Noake on the phone. If necessary, we get the other parties on the phone, that being management and local delegates, Commissioner Hoffman, in an attempt to try and get these people back to work without the orders.

PN25

Commissioner Hoffman, the concern I have is that, possibly if orders are granted, that the dispute may escalate. We certainly don't want to see this dispute escalate, especially if there is a ship sitting out there, Commissioner Hoffman, waiting to be loaded. And we think the most appropriate course of action to take is to adjourn into a conference, Commissioner Hoffman.

PN26

THE COMMISSIONER: Could you just tell me which union Mr East either was or is a member of?

PN27

MR SHARPE: I believe he is a member - well, Commissioner, I believe he is a member of the Metal Workers Union, not of the Australian Workers Union, and I can't make submissions to the Commission with respect to the details of the termination. My colleague, Mr Moorhead, may be able to do that.

PN28

THE COMMISSIONER: Yes, thank you. Yes, Mr Moorhead? Sorry, just before I go to you, Mr Noake, you are there?

PN29

MR NOAKE: Yes, Commissioner.

PN30

THE COMMISSIONER: Anything you wanted to add over and above what Mr Sharpe said?

PN31

MR NOAKE: Yes, just to clarify for the Commission the situation at Cape Flattery, and I guess one of the events that have led up to the action yesterday, as Mr Turner has pointed out, the men voted to take industrial action over the dismissal of the delegate. However, there are other matters that, although they are not directly related, tie in to the decision, I guess, from the men yesterday to take the action. They have been experience frustration over a whole heap of matters; again, double-standards by the company in the way they treat some employees and not other employees.

PN32

Some warning letters being handed out, minor breaches of - just general local industrial relations matters, I guess, Commissioner, but they all seem to have compounded, and they are all coming to a head, and then at this particular point in time, the company made a decision to terminate Mr Rod East who was the on-site delegate for the Amalgamated Metal Workers Union.

PN33

Like Mr Sharpe, I don't have much background on what the basis for the termination were, but I was just going through the company's enterprise agreement, Commissioner, and one of the objections from the combined union members union up there is the company does not appear to have followed the disciplinary procedures in the EBA. At the clause that Mr Turner pointed out to you at 3.2, the disciplinary procedures at the last paragraph, and I appreciate you haven't got it in front of you, Commissioner, but it says that termination is given in the presence of the union representative by the mine manager or their replacement.

PN34

Now, it is my understanding Mr East was dismissed on Monday with no union representation there, but again, I am not all that clear on the details of the termination, so - but in the eyes of the members, and you must appreciate, Commissioner, this is a very remote mine site where the miners up there work extremely long hours in an isolated area, and they are basically isolated from the rest of the world for most of the year, and they are a very close-knit community, and I guess this current situation has just reached flashpoint where they - the employees feel that one of their - one of their own, so to speak, has been given a rough deal, and I think it has got a lot of relevance what Mr Sharpe has just pointed out.

PN35

I was only informed myself, just before the conference, by the AWU delegate, John Noble, that he had had discussions with the general manager, Mr Alex Temperley, in an attempt to try and resolve this. And it is my understanding that, as Mr Sharpe pointed out, that an agreement was reached between Mr Temperley and John Noble, and John was quite happy to take this back to the members, that the company agreed, I understand, to suspend Mr East on full pay, and the men, on that basis, it is my understanding the men will return to work immediately without the need for orders, and then I have also been informed, though, that that presented some problems to Mr Turner from Mines and Metals.

PN36

I agree with Mr Sharpe; I think we can resolve this without the orders, and I think it is a fair sort of compromise that they reached locally, and I would ask the Commission to allow the parties to agree to that, and then proceed the rest of it in a normal conference.

PN37

THE COMMISSIONER: Are you in Cairns at present, Mr Noake, I assume?

PN38

MR NOAKE: Yes, I am, Commissioner, I am in the Cairns AWU office.

PN39

THE COMMISSIONER: Yes, sure, that is understood. Okay, thank you for that. Yes, Mr Moorhead?

PN40

MR MOORHEAD: Thank you, Commissioner. Commissioner, we concur with those submissions made by Mr Sharpe in relation to the section 127 orders sought by Cape Flattery Silica Mine, but we also might take you through some of the background to the dispute.

PN41

THE COMMISSIONER: Well, I am sorry, we don't really have a lot of time for background just now.

PN42

MR MOORHEAD: Okay.

PN43

THE COMMISSIONER: Unless you think it is essential.

PN44

MR MOORHEAD: Just briefly, Commissioner, this was a matter that was before you on an earlier occasion, on 15 May 2002.

PN45

MR TURNER: Can I just object? I am sorry to do this, Commissioner, but that is not right. This matter wasn't before you on a former occasion. There was a conference involving Mr East on a former occasion before yourself, Commissioner, and that is exactly our point; the matter with Mr East is not relevant to the application for 127 orders today. And this concerns me a little bit, where we are getting into realms of ventilating Mr East's termination process today, when really, if Mr East and Mr Moorhead wish to pursue that, they should do that by the means laid out in the Workplace Relations Act. They are quite able to do that, Commissioner.

PN46

MR MOORHEAD: Commissioner, I don't intend to take you through any sort of debate over the issue of Mr East's termination or not. All I wish to say, Commissioner, is that this has been an ongoing issue that the union has previously brought to this place for your assistance.

PN47

THE COMMISSIONER: Yes, I recall the issue.

PN48

MR MOORHEAD: And I think that it was actually in Cairns it was dealt with. And this is the issue, and the union has attempted to use those dispute procedures and appeal procedures available to it under the agreement, and through the award on previous occasions. And I believe that this is the - this comes back to what is contained in paragraph 3 of the grounds and reasons filed by the applicant. Commissioner, my instructions are the same as Mr Sharpe; that there have been negotiations going on on-site and that there has been offer and counter-offer going back, and that the speediest resolution to this dispute would be for those negotiations to continue in a conference before you, rather than the issuing of orders.

PN49

THE COMMISSIONER: Yes. Well, is there some reason why we don't have the parties on the telephone on-site? Normally, we have - - -

PN50

MR TURNER: Well, no, there is not, Commissioner. But I would ask that I could just comment on a couple of the submissions that have been made, just briefly. I understand the time constraints, but some - - -

PN51

THE COMMISSIONER: Well, I mean, I have got all night, but - and we will keep going in the night if need be, but you can briefly, but then I want to try to get Mr Temperley, and/or others who we normally have on the phone, and - or you can speak to them yourselves, if you wish to, Mr Noble, etcetera, who we have had previously involved in matters, and see whether or not they have resolved matters whilst we have been dealing with this matter formally.

PN52

MR TURNER: We had anticipated that Mr Temperley's availability would be helpful and I've arranged for him to be available so that shouldn't be an issue, Commissioner, but perhaps I might telephone him first just to confirm he's there.

PN53

THE COMMISSIONER: Yes, that's fine.

PN54

MR TURNER: If I could just comment just briefly on a couple of the comments made by Mr Sharpe. Yes, there has been discussions this morning between Mr Noble and Mr Temperley, but, no, there was no resolution reached. My understanding is that Mr Noble made an offer to Mr Temperley that if Cape Flattery Silica Mine would suspend Mr East on full pay that may go some way to resolve the dispute, and, of course, it would. You know, why wouldn't it? My instructions are that Mr Temperley did not, at any stage, agree to that.

PN55

He advised Mr Noble that that amongst other things Mr Noble had put to him he would consider. He went and considered them. He had some discussions with me and of course I gave him some advice and then he made up his mind, and my understanding is that he told Mr Noble that that wasn't - that proposal - wasn't acceptable but then they had some discussions about reaching an agreement on some small compensation basis and I understand that Mr Temperley has made an offer to Mr Noble which Mr Noble is considering.

PN56

So there's been no agreement reached, and, again, I'd just like to make the point before we proceed into conference that it seems that it's all right to say that we'd be better off sitting down and trying to resolve this in a round the table talk, but meanwhile, Commissioner, of course, the employees are still taking industrial action. It is unprotected industrial action. Because of the short notice it was difficult to have a witness or a witness statements available, but I don't think that the fact they are on strike is being disputed and I'm sure that Mr Noake won't dispute that. So that's a fact that we all know, they are taking, as we speak, unprotected industrial action. That's the point of the application.

PN57

THE COMMISSIONER: Well, I intend adjourning to enable you to speak to Mr Temperley to ascertain that. The union can speak to Mr Noble and then if need be let my associate know and provide the telephone numbers of both them to her and if need be we will have a hook up from here involving everyone, so I will adjourn briefly to enable you to make those calls. Mr Noake, we will come back to you shortly.

PN58

MR NOAKE: Yes, thank you, Commissioner.

PN59

THE COMMISSIONER: Thanks, we will adjourn off the record for a while.

OFF THE RECORD [2.23pm]

RESUMED [2.40pm]

PN60

THE COMMISSIONER: The Commission understands that the parties have not been able to speak to their necessary personnel in terms of whether or not this matter has been resolved. The telephone hook-up that is being arranged will be made available for the parties to see if they can resolve it. If they cannot, then the matter will resume in formal hearing at 4.15 pm. If they can, then the appropriate documentation can be provided to my associate to note that the matter is resolved. The Commission stands adjourned subject to it being necessary until 4.15pm.

NO FURTHER PROCEEDINGS RECORDED [2.41pm]