C2002/4853, Transcript of Proceedings [2002] AIRCTrans 4227 (25 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT391

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2002/4853

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Eptec Victoria Pty Limited for an order
to stop or prevent industrial action

MELBOURNE

9.10 AM, THURSDAY, 10 OCTOBER 2002

PN1

MR A. WOOD: I seek leave to appear for the applicant Eptec Victoria Pty Limited. I appear with MR W. LA CIOPPA from the company.

PN2

MR H. SKENE: I seek leave to intervene in the application on behalf of Tenix Defence Pty Limited.

PN3

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers' Union, together with MR L. DIEHM, a shop steward. I oppose counsel with regard to the applicant. I oppose the intervention and I oppose counsel appearing for the intervener. If the Commission pleases.

PN4

THE COMMISSIONER: Mr Addison, the file doesn't tell me very much. Can you tell me why you oppose them and what is involved?

PN5

MR ADDISON: Commissioner, we are here to respond to an application pursuant to section 127 from Eptec. There is no industrial action happening. There is no industrial action threatened, impending or probable. There is a difference of opinion between that company and the AMWU which the company has conceded it is in the wrong on. It is in conjunction with a matter that has been before yourself with regard to the CFMEU with regard to public holiday time.

PN6

The AMWU and the company met on 25 September with regard to that matter. The company have agreed that your decision - I think it may be interim in nature - but your decision with regard to the matter in connection with the CFMEU issue applies equally to the AMWU. We have suggested a process to deal with the matter. The company have disagreed with that process. People got a bit hot under the collar on I think 4 October and left the site, but everybody is back at work. There is no industrial action happening. There is certainly no threat of industrial action.

PN7

We do want to resolve the matter with the company and we are happy to go into conference to work out a process to resolve the matter. There are other issues with the AMWU has indicated to the company it wishes to discuss, not least of all being the classification structure within the enterprise agreement, but there is no threat of industrial action with regard to those matters either, Commissioner. With regard to the appearance of counsel in these matters, we object.

PN8

We haven't heard counsel's reasons as to why they should be allowed to appear, but on the fact of the matter, section 42(3)(a), (b) and (c), none of them would apply in my submission. I see no reason at all for Tenix to be involved and I can see no grounds under section 43 which would allow Tenix to appear and even if Tenix were to appear, there are no grounds under section 42(3)(a), (b) and (c) that would enable Tenix to be represented by counsel in these matters, so on all of those bases, I oppose counsel appearing.

PN9

MR WOOD: Commissioner, the application for leave for counsel to appear is based on section 42(3)(b) of the Act. That relies upon, as the Commission would be aware, having regard to the subject matter of the proceeding, the special circumstances which should necessitate the grant of leave. We say in this case it is desirable for a number of reasons. Firstly, the reasons purportedly offered for the industrial action arise from events which have a common genesis, if you like, and those are events which arose from the Commission's decision of I think 4 September regarding the back payment issue and, of course, those are issues which have been agitated previously and, indeed, are listed before the Commission at 10 am this morning.

PN10

In those proceedings, leave for counsel to appear was granted in recognition certainly in respect to the CFMEU issues, but we say that there is no distinction or substantial distinction between those issues and, indeed, the presence of counsel in these proceedings would be of assistance to the Commission because of the continuity and the knowledge of the issues that that brings. Secondly, we say that these are serious issues. There has been at the site, at the Tenix site in Williamstown a history of industrial action by this union, the AMWU, directed both at Tenix until recent times which followed an order made by this Commission under section 127 in respect to the AMWU and Tenix and in our submission that industrial action is likely to happen in respect of other contractors on the site which includes the applicant in this case and we say that the impact of such industrial action, including that which happened earlier on this week and necessitating this application makes that a serious matter that warrants the appearance of counsel.

PN11

I can say that, Commissioner, my instructions are that Eptec is prepared to go into conference this morning and if that is an issue which may assist the Commission in deciding the issue of leave, then so be it. There is, however, before we go into conference at all, a couple of issues I would like to clarify in respect of the application that was made. Firstly, the application made reference to a request that this matter be joined with the section 127 application in respect to the CFMEU. That is not an application that is currently pressed by Eptec.

PN12

In other words, it would be appropriate to deal with this matter separately. It may in the fullness of time be appropriate to perhaps consider submissions jointly, but in respect of any evidence, it might be necessary to program this matter. We don't press the joinder application. Secondly, and with a view to assisting the Commission and the parties to understand the factual issues, the company has prepared through Mr La Cioppa a statement which goes to the relevant facts leading to the industrial action which has occurred and in particular Mr La Cioppa's statement refers to there being scheduled to his knowledge a further stop work meeting for two pm today.

PN13

That meeting is during normal working time at the company and the company has not consented to payment for that meeting, so we say in that respect both the threat of industrial action is a real one and it needs to be taken into account both with respect to the question of leave and also to be addressed by the parties in conference. I can hand a copy of the statement up, although it is not intended at this time obviously to call Mr La Cioppa immediately, but I simply hand a copy of the statement to the Commission and to the parties to review.

PN14

THE COMMISSIONER: Thank you. At this stage I won't mark it, Mr Wood.

PN15

MR WOOD: Yes.

PN16

MR WOOD: As far as Eptec is concerned, obviously it doesn't oppose, indeed it does support the intervention by Tenix, but that is a matter obviously for Mr Skene to make out those grounds in respect of the intervention. If the Commission pleases.

PN17

THE COMMISSIONER: Just before I ask Mr Skene to speak, Mr Addison, Mr Wood indicated that there is a proposed meeting today at two o'clock. Is that an authorised meeting or not?

PN18

MR ADDISON: Commissioner, it's just a normal part of our process to report back to people as to what is occurring, nothing more than that. It is a report back with regard to the Commission this morning and I am instructed it is at 2.30, not two pm.

PN19

THE COMMISSIONER: Is that still in work time?

PN20

MR ADDISON: Yes, it is, Commissioner.

PN21

THE COMMISSIONER: Does that make your statement to me correct, then, that there is no proposed action to be taken?

PN22

MR ADDISON: There is no industrial action. It is just a normal report back meeting, Commissioner.

PN23

THE COMMISSIONER: It is a stop work meeting, a mass stop work meeting in work time, isn't it?

PN24

MR ADDISON: I might need to take some instructions with regard to that, Commissioner.

PN25

THE COMMISSIONER: Thank you. Mr Skene.

PN26

MR SKENE: Yes, Commissioner, look, essentially the grounds for my application for leave to intervene are the same as they were before you on 18 September. I can restate them in full. Essentially, however, Tenix's application is made on the basis that it is a party directly affected by the application. It has right to bring this application in its own right, should it wish to do so, under section 127(2) of the Act as a party directly affected by the conduct.

PN27

For those reasons, should this matter proceed without Tenix having an opportunity to be heard, the Commission would be making decisions in relation to both the jurisdictional facts and also the exercise of its discretion without having heard from Tenix and that would prejudice Tenix should it wish to exercise its rights to bring a future application in respect to this conduct. I would point out that the conduct has been taken by contractors to Tenix at the Williamstown shipyard where Tenix conducts the Anzac ship project, so in those circumstances we say that it is appropriate that Tenix should be heard in relation to this application.

PN28

In relation to the impact of the conduct of the members of the AMWU and the action that they have taken upon Tenix in addition to the impact of it upon Eptec and also the full circumstances of the relationship between Eptec and Tenix, that is an appropriate matter for you to take into account, considering overall the consequences of this conduct in whether or not to exercise your discretion to grant the orders sought. Now, I can make some fuller submissions on exactly what those grounds are, Commissioner, but it will be essentially the same submission as was before you on 18 September when leave to intervene was granted.

PN29

THE COMMISSIONER: I understand those submissions at that time. That is not necessary at this stage.

PN30

MR SKENE: Thank you, Commissioner.

PN31

THE COMMISSIONER: Mr Addison, do you have an objection to going into conference on this matter?

PN32

MR ADDISON: I have no objection to going into conference, Commissioner. We are happy to go into conference.

PN33

THE COMMISSIONER: I will reserve my decision in respect to both leave to appear and intervention and we will proceed off the record into conference.

NO FURTHER PROCEEDINGS RECORDED