C2002/2555, Transcript of Proceedings [2002] AIRCTrans 4329 (1 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2002/2555

THE BUILDING, METAL AND CIVIL
CONSTRUCTION INDUSTRIES

Application under section 33 on the Commission's
own motion concerning union's intention to
commence leisure time

SYDNEY

1.10 PM, FRIDAY, 18 OCTOBER 2002

PN1

THE COMMISSIONER: The appearances please.

PN2

MR D. MURRAY: If the Commission pleases, from the Master Builders Association of New South Wales. I have with me MR B. SEIDLER also of the MBA.

PN3

MR I. WARREN: If the Commission pleases from the Building Interest Specialist Contractors Organisation. I am appearing on behalf of the Master Apprentices Australia, New South Wales Association and the respondent members of the association of wall ancillary industries of New South Wales and the Australian Asbestos Contractors Association.

PN4

MS M. BASS: If the please the Commission, of Civil Contractors Federation.

PN5

MR B. DUGGAN: If the Commission pleases, for the Master Plumbers Association seeking leave to appear as an interested party.

PN6

MR A. KERSLAKE: If the Commission pleases, appearing on behalf of the Labour Council of New South Wales.

PN7

MS R. MALLIA: If the Commission pleases, for the Construction, Forestry and Mining Energy Union.

PN8

MR A. FERGUSON: If the Commission pleases, CFMEU.

PN9

THE COMMISSIONER: I've called this matter on at the request of the Master Builders, correspondence they sent to me on 16 October. I will quote the last paragraph. It talks about numerous threats of industrial action. The last paragraph it says:

PN10

With this very serious development ...(reads)... list this matter for formal hearing.

PN11

As the parties are aware on the Commission's own motion I've been chairing conferences between the parties. I have no other formal application before me but perhaps Mr Murray you might begin and see where it takes us.

PN12

MR MURRAY: Commissioner, as you have of course pointed out, you have been chairing conferences between the parties. There have, however, in the last few days been a number of developments which are relevant. The first of these is over about the last week or perhaps a little bit more notice of initiation of bargaining period have been sent out, apparently wholesale. We've had contact from better than 100 of our members advising that they've received notice of initiation of bargaining period.

PN13

In the last couple of days these have been followed up with notice to commence protected industrial action, again apparently sent out wholesale. There has also been, over the last few days, industrial action on at least one side that I'm aware of and threats of industrial action on other sides.

PN14

Now, in the case of the various companies that have been served, they are to some extent a mixed bag. There are companies that have been served with these notices that have enterprise agreements that have not yet reached their normal expiry date. There are companies that have been served, they've had no contact at all from the union apart from these notices and I have a list of better than 60 companies thus far and more following who are advising us that apart from the notices there has been no attempt at any stage to negotiate with them prior to them receiving notice to commence protected industrial action.

PN15

Now, the notices to commence protected industrial action all follow essentially the same form. They contain in every case that I have examined the same words.

PN16

Notice that such action will commence on 22 October 2002

PN17

Which is, of course, next Tuesday.

PN18

Now, the situation therefore is this that we have had lengthy discussions in this Commission about a new round of patent agreement but over the last few days wholesale shot gun distribution of notice of initiation of bargaining period followed without any intervening discussion or negotiation with notice to commence protected industrial action in at least some cases, and we are getting information coming in to us even as I speak, in some cases industrial action threatened or impending there's been direct reference to industrial action being taken on a number of sites. As I've said at least one site that I'm aware of there has been a stop work meeting already and discussion of the campaign, the issues that are on hand in the bargaining period already in the absence of any meaningful or reasonable attempt to negotiate in good faith apart from between the union and ourselves but not with the individual companies concerned.

PN19

In no case that we've seen of the 60 or more that have already given us details, in none of those cases has there been any attempt to negotiate with them, whether in good faith or otherwise, prior to industrial action being foreshadowed and in some cases directly threatened against them. That's why we are here, Commission.

PN20

I might foreshadow now also that we intend to make application to terminate bargaining periods particularly in those cases where there are already enterprise agreements in place which have not yet reached their nominal term or where otherwise the requirements of the Act have not been met in relation to the notice of bargaining period.

PN21

Now, that is the situation as it now stands, Commission, but as I say I foreshadow now in the very near future making formal application to terminate bargaining periods if not on a wholesale basis certainly on an individual basis for a growing list of companies. If the Commission pleases.

PN22

THE COMMISSIONER: Thank you. Yes, Mr Warren?

PN23

MR WARREN: Commissioner, I could basically repeat what Mr Murray has said to you. I think the situation is the same for my members and in fact the Commission may be aware we have notified separately of a dispute on essentially the same grounds as Mr Murray has just outlined to you.

PN24

THE COMMISSIONER: You've notified a dispute, have you?

PN25

MR WARREN: Yes, we have, Commissioner, it was put in last night. I did draw attention that the matter was related to this particular matter number. I think we've put a wrong date in there, it was copied off an old date the date of 27 September, which was one of the previous hearings we had instead of today's date but it is included in the notification that it is related to this matter. Basically it is exactly the same situation as Mr Murray that therefore foreshadowing that if we cannot resolve the issue by conciliation in some way very quickly we will have to look at applying for termination of the bargaining periods. We are looking at numerous reports coming in from the various association. They grow every day. On exactly the same basis as Mr Murray has put to you and the same wording. If the Commission pleases.

PN26

THE COMMISSIONER: Thank you. Ms Bass?

PN27

MS BASS: If it please the Commission. We would also support the MBA's application to be here this afternoon. We'd also like to state that our members have also been receiving their notices to initiate bargaining period and as you are aware, Commissioner, during the our conferences we have actually outlined to you that those EBAs don't expire until later and part of next year.

PN28

We have not, at this stage, our members have not received any notice that protected industrial action will commence. However, I would assume that that would follow in the very near future.

PN29

We would also be seeking in the near future section 170MW of the Work Place Relations Act for your intervention. Thank you.

PN30

THE COMMISSIONER: Thank you. Mr Duggan?

PN31

MR DUGGAN: Commissioner, I am not actually aware of any of our members that have been issued with bargaining notices. What I am aware of, certain union delates have actually acting in breach of section 170NC of the Act and that prohibits coercion or trying to vary or terminate certified agreements ahead of the time. So, as early as about 7 days ago there was a union official on site and he was I suppose threatening, for want of a better word, a company that had an employee negotiated certified agreement and wished to have it terminated and converted to a union agreement. I just want to put that on notice, Commissioner.

PN32

The Master Plumbers Association agrees or concurs with the submission so far.

PN33

THE COMMISSIONER: Thank you. Mr Ferguson?

PN34

MR FERGUSON: It is very difficult to respond, Mr Commissioner, in that there has been no particulars made available in response to these very broad allegations. So I assume we are going to have to seek some assistance from the employer organisations there in terms of particulars and details, so can't respond in any detail to the issue.

PN35

Certainly we have now been bargaining with the individual employers and employer organisations for about six months, with several months with your assistance and separate from that process direct with employer organisations and individual employers. We've been bargaining in good faith and in fact we've participated in that process with yourself and I am sure that you are in a position to exercise some judgment there.

PN36

I am not aware of any industrial action that has taken place. I am not even aware of any threats of industrial action. We've got negotiations taking place with scores of companies. We've got in fact 50 officials that are right now involved in detailed negotiations with many different building companies. We've got 200 delegates that have been trained and are also assisting in the renegotiation of the enterprise bargaining agreements. We've allocated very considerable resources. We've directed all our officials to give this number one priority, to make sure that they're available to assist employers in terms of understanding our claims and in bargaining in good faith. We've now got 20 companies that in fact have bargained in good faith and have negotiated settlements.

PN37

All of those have been done without the threat of industrial action and in fact in the absence of industrial action we're quite proud of that achievement of a renegotiation without disputation two form workers are left, that haven't agreed to the terms, but we've got a meeting tentatively arranged for 4.00 o'clock this afternoon with one of those form workers. I have in fact had two meetings myself with the other form worker. I have had another discussion today with that other form worker, and we are hopeful that we can progress that particular form work company. Both those companies are here today, so I am available to sit down with them to put quality time into assisting and to negotiate that.

PN38

We do have a standard agreement, but we are varying that in accordance with company requirements and we have in fact varied some of our standard documents to ensure that those individual companies are satisfied with the claims that we are making. We have got a meeting taking place right now with 15 steel fixers, that is scheduled for 1.30. We are very confident of a favourable outcome there. We had a meeting yesterday with major bricklaying companies and we are extremely confident of a favourable outcome there. I have been with two large builders today, Multiplex and Grocon and they are very pleased with the fact that we are processing this issue in a sensible and orderly fashion.

PN39

We intend to continue that. We intend to bargain in good faith. In fact we've sent out a letter in error to a company that's got a certified agreement. Certainly we will be apologising to those individual companies. As you are aware, Mr Commissioner, we did approach the Industrial Commission, several months ago to try and ascertain exactly what agreements have been certified. I have also approached the Master Painters Association and we signed a number of agreements. We gave those to the Master Painters Association and we never received feed back as to which ones were in fact processed towards certification.

PN40

I have also had correspondence with the Master Builders Association where a number of agreements were signed by the union and then were given to the Master Builders Association for certification. I have had an initial response from the MBA which was positive, indicating which ones were certified, so we are in fact adjusting our records now and the MBA is using their endeavours to ascertain other companies that they are not certain about whether they are certified or not. So there may have been some error.

PN41

If the respective organisations could provide the details of which ones were issued in error, we will correspond with each of those companies, apologise and rectify that particular problem. We are bargaining in good faith, we are making a lot of progress, and we are very proud that there has been renegotiation without any industrial disputation.

PN42

THE COMMISSIONER: Is anything scheduled for next Tuesday in terms of protected industrial action?

PN43

MR FERGUSON: We haven't had our committee of management look at any particular industrial action, but where we have issued notices in accordance with the Act, there is a possibility of workers in the particular companies looking at their legal rights, but we are endeavouring and working very hard to minimise any protected action which we've got the legal right to take.

PN44

THE COMMISSIONER: Thank you. Mr Kerslake?

PN45

MR KERSLAKE: I might just indicate, Commissioner, that what Mr Ferguson has said is true of all the unions. There has been considerable training. I myself have been involved in training numerous delegates, attending numerous delegates meetings, attending numerous organisers meetings - so across the board the unions have been acting as a whole in cooperation and have been attempting to bargain in good faith and to produce a good result for themselves, for their families and for the industry. So I would just indicate it's across the board, Commissioner.

PN46

THE COMMISSIONER: Thank you. Mr Murray?

PN47

MR MURRAY: Thank you, Commissioner. Mr Ferguson has outlined steps that he understands to have been taken and it may well be that in the case of a number of companies there has been negotiation and there may well have been agreement. However, what we have is a lengthy list and I might just take this opportunity to hand it up. A lengthy list of companies which have contacted us.

PN48

The details vary to some small extent, but in all cases these companies have received notices as is set out on the spread sheet, but other than that have had no discussions with the union - or as at the date this was prepared, have had no discussions with the union and no negotiation had taken place. There have been notices sent out to them and we are actually assembling further details in the case of each of these companies of their situation. Some of them have agreements which have not yet expired, some of them don't. Some of them said to us that there has been no meetings, no negotiations, no discussion at all but yet they've received notice to commence protected industrial action.

PN49

That's why we are here and that's why I also I foreshadow applications in the case of at least some if not all of these companies and there will be more, because I am aware of others - applications to terminate bargaining periods for one or other reasons, that either the bargaining period is misconceived let's say, in that there is a current agreement which has not yet reached it's nominal expiry date, or that there are other reasons under the Act why they should be terminated.

PN50

But, in the meantime what we have in answer to your questions, Mr Ferguson. Where notices have been served there is a possibility of workers looking to their legal rights - well therein lies the problem because we have notices that are served in at least many, if not most cases, invalidly. So whether the workers have legal rights or not is very much an issue before you this afternoon, Commissioner. Whether the workers have a legal right to take protective industrial action is very much a live issue between now and Tuesday.

PN51

I think that Mr Ferguson's answer has really, if you like, reinforced the problem that we have and the problem before you this afternoon, which either is resolved this afternoon or further steps are taken as is appropriate, in resolving what legal rights, if any, there are and more importantly in getting back to where we were before you, of negotiating as organisations the agreements that were being negotiated before you prior to these notices and various other things occurring.

PN52

The situation is not one of bargaining in good faith in every single case. We have a situation where companies are being served with notices and no bargaining has taken place. Companies that have been served notices where it cannot be said there is bargaining in good faith because there is a no-extra claims clause in a current agreement. So it is not true to say that in every case the union, at least in the case of the CFMEU, is bargaining in good faith, because those basic requirements are not being met. That's why we are here, Commissioner.

PN53

That being said, the matter really does need to be resolved before

PN54

Tuesday because otherwise, as Mr Ferguson puts it, workers may well be encouraged to look to legal rights that they don't in fact have. If the Commission pleases.

PN55

MR FERGUSON: If I might respond. As I said earlier, if we have issued any notice in error, if the employer organisation provide the details in respect to that either today or on Monday, we will immediately attend to that particular issue. Once again, we've got a very general statement being made but no particulars. I am not aware of any company where there is an agreement in place where we are pursuing the introduction of a 36 hour week. There are some employers that do have agreements that expire either late this year or early next year, for example Multiplex and Grocon. We are involved in a dialogue with those two companies - that's by mutual agreement. They recognise the merit of this claim and they are seeking to be pro-active and resolve that issue.

PN56

I am not aware of any other company where we've got an issue and as I said earlier, we need particulars here so that we can respond and ensure full compliance with the law. I didn't say that anyone will be encouraged next Tuesday to take industrial action. Where workers have got the legal rights, where we had been bargaining in good faith, we will reserve our rights to talk to those workers and report the outcome of negotiations. We intend to do that. For example we have been having long discussions with A&G Formwork. I have had several meetings - they haven't been willing to settle the claim and we intend to further progress that issue next week. There is another form worker here. We did speak to that company today and I am hopeful they will turn up to the meeting tentatively arranged for 4.00 o'clock and bargain in good faith and I am confident of getting a sensible outcome to those companies, consistent with what is fair and reasonable.

PN57

THE COMMISSIONER: Yes, Mr Seidler?

PN58

MR SEIDLER: Commissioner, if I may, I'm heartened to hear from Mr Ferguson who suggests that the standard agreement will be varied and has in fact been varied in certain instances because fundamental to the whole process of enterprise bargaining is the issue of bargaining in good faith and my personal experience with this whole issue is there has absolutely been no genuine bargaining as far as the individual contractors go. They are simply given a copy of the standard pattern agreement and told they are to sign and that there is no bargaining, that's it.

PN59

If Mr Ferguson and he's now said it on transcript, perhaps we could have that transcript made available sooner rather than later so we can publicise across the industry, that indeed, he is willing to move and change the standard agreement. For the two contractors that Mr Ferguson keeps referring to, the two formwork companies, all they are asking for is that genuine bargaining in fact does take place and that they are able to vary perhaps some of the conditions that have been pushed upon them. They wish to have their old agreement in place and adapt perhaps to the next three years to accommodate not only the union's issues but also, their concerns.

PN60

To date Mr Ferguson in particular says, no negotiation however, I'm very heartened to hear and again, Commissioner, I would respectfully request that perhaps this transcript of Mr Ferguson saying that the standard agreement will be varied perhaps could be made available to the parties sooner rather than later. I might say also, Commissioner and hand up to you a copy of a letter that was written to the Premier of New South Wales advising of the type of tactics and approaches that the CFMEU is using in New South Wales as far as pursuing their 36-hour week campaign.

PN61

I might also say that a similar letter was forwarded to the Minister for Industrial Relations, Minister Della Bosca and also, the Minister for Public Works, the Honourable Minister Yemma, simply because there's, as I understand, $24 billion worth of infrastructure work and with a 36-hour week claim. Some 17-1/2 per cent increase to wages and conditions would certainly affect the spending power of that budget and, of course, may even have political ramifications in the upcoming election.

PN62

So it's a very, very serious issue, I have had discussions with both Minister Yemma and the Premier about this issue and will be taking that up with them on Monday. Commissioner, for your information, a number of sectors have in fact met and have offered Mr Ferguson and in fact, I send you a copy of the letter, offering Mr Ferguson an opportunity to discuss a number of issues relating to the introduction of a 36-hour week. Up until that initial letter was sent to him on 10 October his office has responded now and I understand we are meeting on Tuesday to discuss the absolute genuine concerns that contractors, such as the one here and all over the place have about the introduction of a shorter working week and the implications on their businesses so far as the ability to attain and keep their market share.

PN63

We don't take this lightly, this is a most serious issue. My person belief is that there has been no genuine bargaining whatsoever. The actual notification to the subcontractors out in the field is simply a statement that industrial action will take place on every site from 22 October. Again, if I hear Mr Ferguson correctly, he is saying that perhaps some of them were a mistake, there was blanket issuing of the notice. I'm happy to hear that he will write to those who have been inappropriately served and advise them that they won't be hit with industrial action but perhaps that is part of the ambience that CFMEU is trying to create in the industry.

PN64

Of the numbers of people that we've submitted to you indeed, I suggest quite a large number of those have current enterprise agreements with their nominal period not expiring at this stage. We are most concerned, I must say, Commissioner, under your guidance the parties came to the Commission some five months ago in an effort to perhaps discuss the issues in an appropriate way. Mr Ferguson, in fact his National Secretary embraced the conditions of coming to the Commission and saying it's a good thing and yet, when they don't get what they want, let's go out and kick the industry to death, probably following on from the approach that Melbourne certainly subscribes to.

PN65

At a recent fund raising, Labor Party fund raising evening Mr Carr the Premier got and said how good industrial relations was in New South Wales and I guess, up until these notices were issued, perhaps there was an approach that one could say was certainly better than in other States. However, this approach, this negotiation that is going on is not genuine. If you are to bring the companies in who have allegedly signed the pattern agreement and you would ask them genuinely if they had any genuine negotiation the answer would be no, they were told sign it or else.

PN66

THE COMMISSIONER: Mr Ferguson?

PN67

MR FERGUSON: To very quickly response, we certainly reject these very broad allegations being made, as I have said, we are bargaining in good faith, the formwork contractor I spoke to today, for example, I've got a list of 10 items that he in fact raised in respect of our standard agreement, we did some variations there, we accommodated fine tuning, we are seeking to do that broadly. We do have very strong opinions supported by our membership but we have done variations when they are appropriate.

PN68

Once again, we are looking forward to the MBA providing details of any errors that we've made and would be hopeful that Mr Murray in particular, could give that issue priority and we'll take the steps that we already foreshadowed in relation to this list, in fact there are a large number of contractors on this list which has been supplied who are in fact involved in negotiations right now with our union officials. I'm involved in negotiations with a number of them myself, as are other companies.

PN69

So this is a list of companies certainly but in fact, it's a list that includes companies that are in fact bargaining with us right now. In relation to Mr Seidler, he indicated that he has had correspondence with the union, we have replied, we have in fact taken up the opportunity to have further discussions with members of his organisation, that's scheduled already. That's I think evidence of our bona fides in respect of this issue.

PN70

There will be no inappropriate industrial action taken. We do have certain legal rights and where those legal rights do exist, it will be exercised next week.

PN71

THE COMMISSIONER: Very well.

PN72

Yes, Mr Warren?

PN73

MR WARREN: Once again, I'm very much in the same position as the Master Builders, Commissioner and I think Mr Ferguson referred at one stage to some agreement with the Master Painters and I think, the Master Builders which were agreements under section 170LJ and I guess, it highlights the problem we have. I recall those agreements and there are about 10 or less than 10 of them and they were, as was put to you by Mr Seidler, contractors who were pushed and told, sign the agreement or else and they agreed to do that and then we got them in to try and get them to actually sign up and when they'd had a week or two to think about it they changed their minds and that's typical of the pattern in the industry.

PN74

What we are concerned about is quite a number of our members who have section 170LK Agreements, they are listed on the internet quite clearly and they are receiving these notices, so we will provide a list of those people to Mr Ferguson, so we can have them deleted from the industrial action. It is causing quite a lot of confusion amongst our members, we are getting reports of employers saying to their employees, you are going on strike on Tuesday, are you? They are saying, what the hell is all that about? So the membership itself from the reports we are receiving back, is quite unaware of what is going on here.

PN75

Our big concern is that the employers are receiving the notice of intention to have a bargaining period on either the same day or within a couple of days they are receiving a copy of the agreement which is 33 pages long and take some understanding and a demand that they contact immediately the CFMEU. If they do ring and they can get through they get an answering machine which asks them to provide certain details with a promise that an organiser will get back.

PN76

That is the way they are being asked to negotiate at the moment. Some companies have replied and have not yet had a response back from the CFMEU to their response. So negotiation has not been taking place. Even those who wish to, in some cases, have not had a response. But basically they have had a day or two to get the thing, respond, or else there is a strike on - within the week there is going to be a strike on. That's not negotiating in good faith. These people do need help. They need to read the agreement, they need to understand what's in it. As the Commissioner will be aware, the employer associations only received this agreement on Monday, and we are still digesting all the implications of it.

PN77

It's pretty hard for a small contractor to get it, read it, and say; That's good, I'll sign that up. It's quite unrealistic of the union to say negotiating in good faith allows you 24 hours to get back to us, or else you are not negotiating. We believe that's totally wrong, and they are the sort of issues that will come up unless we can have the union quite categorically say that strike action is not going to have to take place next Tuesday. The notice that's gone out is quite blunt, "Action next Tuesday", and that is the concern to us and to the people receiving that notice. If the Commission pleases.

PN78

MR SEIDLER: Commissioner, may I just add one other thing. We have to date, since notifying this Commission, statutory declarations from a large number of companies. We intended to hand them up today. However, with the notice from Mr Ferguson that he's prepared to vary the standard agreement, I will hold off. However, I will read from just a number of statutory declarations. In general terms they say we were served with the CFMEU's notice, we were then told if we didn't sign we would have industrial action. Now, that is basically the tone of all of these statutory declarations.

PN79

If I gather from what Mr Ferguson has suggested that there will be no industrial action, or inappropriate - used the word "inappropriate", I think borrowed from the Royal Commission which is a good thing, industrial action then maybe we won't serve these. But I can advise the Commission that in our application to have the bargaining period terminated we would certainly be using statutory declaration evidence as to the type of intimidation that subcontractors have been receiving.

PN80

THE COMMISSIONER: Thank you. Mr Ferguson?

PN81

MR FERGUSON: Once again, it's impossible to respond. We don't have any details in relation to allegations. I think we have demonstrated our bona fides consistently during this process. I would like the opportunity to evaluate those stat decs and ensure that there is an appropriate response in terms of what is fair an reasonable. In terms of Mr Warren's statement, we have sought to allocate extra resources to this issue. We have had, in fact, 60 companies ring the union, and where we haven't been able to respond with a person, we have now got five persons working full-time in our EBA department attending to a lot of these inquiries.

PN82

But where there has been a message left, each of those phone calls has been allocated to an officer of the union and we have ensured that each is responded to with a union official speaking to the company involved. We are emailing the agreement to each company immediately on request. We don't object to an employer organisation also assisting the process by helping with distribution. If Mr Warren has a particular company that hasn't had a response from the union if that detail could be made available I'll ensure that there is a proper response forthwith.

PN83

There will not be any inappropriate industrial action. Where we have been bargaining with companies, we haven't reached a conclusion that is satisfactory to the workers involved but we have complied with the necessary legal requirements there may well be some industrial action next week but I'm very confident that will be very isolated. I'm actually confident those individual companies will sit down and negotiate the issue and we'll continue the good track record we have got.

PN84

MR SEIDLER: Commissioner, what we wanted to perhaps do now is request a short adjournment but still be mindful that we would like - I'm just not sure about what Mr Ferguson has just said whether or not that undertaking will suffice for these contractors and particularly other contractors who are going to receive this sort, as far as they can see, threatening correspondence but I understand that Mr Ferguson says he is undertaking there will be no inappropriate or illegal industrial action. Do I read that correctly through you, Mr Commissioner?

PN85

THE COMMISSIONER: That's what I heard.

PN86

MR SEIDLER: If I could get a confirmation from Mr Ferguson that that's what he actually means.

PN87

THE COMMISSIONER: I think you're being verballed?

PN88

MR FERGUSON: I think we have made our position very clear on three occasions now. If you want me to re-affirm that I can re-affirm that but I think we all understand the commitments that have been given here. The commitments work both ways. If there's any individual contractor that has got a difficulty if you give us the details we'll assist in resolving that issue.

PN89

MR SEIDLER: That's not what I'm really looking for. I'm looking for if the CFMEU and the unions are affiliated with the Labor Council they won't embark on inappropriate or illegal industrial action and if they refuse to give that then perhaps we'll be back earlier than Tuesday.

PN90

MR FERGUSON: If you're not satisfied, Mr Commissioner, if you indicate I'll respond again but I have made it clear on four occasions now. If you need me to do it I'd be willing to oblige.

PN91

THE COMMISSIONER: Do it again.

PN92

MR FERGUSON: That there will be no inappropriate or unlawful industrial action. We are going to very robustly pursue the issue. We are very determined. We are making enormous progress in the negotiations. Some companies are seeking to have a competitive advantage over other companies but we are going to ensure fair play and a level playing field.

PN93

MR KERSLAKE: Commissioner, I believe I was asked a question too to respond on behalf of the affiliates of the Labor Council. I'm not aware that there are any affiliates to the Labor Council who are intending to take any unlawful industrial action on Tuesday.

PN94

THE COMMISSIONER: I don't need to remind the parties that the bargaining system that we have is one which imposes obligations on parties to follow certain procedures. If that is being done that is the system and it's quite a legal and legitimate process. If it's not done in accordance with the Act well then the employers have recourse to seek remedies. As I said that's the nature of the system; people may not like it, people may like it. There's nothing we can do about it here. If I have something firm before me I can deal with it but I think at the moment it's quite clear that there is a very fluid industrial situation, there are still fertile grounds for further negotiation and discussion. I ask that you keep the lines of communication open because that is the best way to avoid disputes based on mistakes or misunderstandings. The Commission itself is also available to assist the parties if requested.

PN95

MR MURRAY: Commissioner, if I may, my colleague Mr Seidler foreshadowed a request for an adjournment and it seems that it might be appropriate at this point to ask for a short adjournment. There are a number of parties here at the bar table on both sides and, amongst other things, I think it will be appropriate for us to have a brief discussion of the situation as it now stands given the things that have been said on the record by Mr Ferguson and Mr Kerslake. I think it might also be appropriate for particularly myself and Mr Ferguson to have a brief word. He's mentioned my name in the context of those that have current agreements and there may be something that can be resolved at least there right now. That being the case might I ask for an adjournment of perhaps 20 minutes now for us to do those things and come back before you?

PN96

THE COMMISSIONER: Very well. I'll adjourn until 2.15.

SHORT ADJOURNMENT [1.50pm]

RESUMES [2.20pm]

PN97

MR MURRAY: Commissioner, we've had some brief discussions during that short adjournment and in particular I had a brief discussion with Mr Ferguson and at least in some respects matters are approaching resolution. Now, just to go through with where we are we note the undertaking of Mr Ferguson on behalf of the CFMEU that there will be no unlawful industrial action in these negotiations or in respect to these notices of bargaining period. We would ask that that also be clarified that that includes there will be no threats of such unlawful industrial action and that the unions generally, but particularly for Mr Ferguson, the CFMEU will not use safety as a pretext for action in support of its claim respecting, of course, the right of workers to take action in respect of reasonable belief as to the existence of an imminent real threat to their health and safety.

PN98

In respect to the short discussion I had with Mr Ferguson during the break I have agreed, in light of those undertakings, to provide a list to Mr Ferguson, and I understand that other organisations will do likewise, of those companies which have enterprise agreements which are still within their nominal term and Mr Ferguson will, based on that list, in respect of those companies which do have such an agreement, and in the absence of such things as leave reserved provisions, undertake to take appropriate action including withdrawing the notices of bargaining period where those bargaining periods won't stand up in light of such circumstances.

PN99

Now, I understand there is a meeting to take place between our association and the CFMEU on Tuesday. That being the situation and subject to the confirmation of the matters which I have asked Mr Ferguson to confirm that a report back Wednesday afternoon be scheduled before you, Commissioner. That I think would be an appropriate time frame for us to know where this, as you put it, fluid situation will leave us over the next few days. If the Commission pleases.

PN100

THE COMMISSIONER: Thank you.

PN101

MR FERGUSON: So just to clarify, we're waiting for this list to be collated of companies that have certified agreements. Mr Murray has undertaken to do that on the weekend and we're very appreciative of that assistance. He has also undertaken to ensure that we are aware of which companies that have certified agreements that haven't expired that have got a leave reserved clause because those companies have already indicated a willingness to negotiate this issue so we can identify those companies and initiate a process of dialogue with those companies. The other thing is Mr Murray has a number of stat decs of companies that have indicated that they believe there hasn't been bargaining in good faith. I think it would be appropriate to have the details of those companies made available so that we can give that issue priority and ensure that they are satisfied in terms of the bargaining process. So if that could be made available as well we'll ensure that that list gets priority.

PN102

THE COMMISSIONER: Thank you.

PN103

MR SEIDLER: Commissioner, as suggested before we will not be submitting nor providing Mr Ferguson a copy of the companies with the stat decs at this stage for fear of perhaps inappropriate activity. Secondly, to perhaps rectify a problem of over-zealous organisers certainly we'll not be doing that, however, Mr Murray did mention an issue that we would like an undertaking from Mr Ferguson and the Labor Council on behalf of its affiliates that they will not use safety in an inappropriate manner. I make mention, while I won't be specific because again, historically, we've had experiences where by naming companies or naming sites they suddenly get a visit.

PN104

Particularly, a company had a job stopped for nearly three hours yesterday while four organisers measured the thickness of amenity cubicles as to whether or not they complied with the WorkCover Code of Practice. In fact WorkCover Code of Practice doesn't make mention of the thickness of the actual walls. So that is sort of what we would class as inappropriate agitation in an effort to perhaps move people to make decisions that they don't make in a proper fashion so it's most important that we don't leave here today, Commissioner, without that undertaking from both the Labor Council and Mr Ferguson.

PN105

MR FERGUSON: Once again it's impossible to respond. We've got a reckless, unsubstantiated allegation so I can't respond in terms of the particular allegation there. I do indicate that the building industry is dangerous; you would be aware of that, Mr Commissioner. We have in fact one worker killed every week on a building site, 15 per cent of all major injuries occur on building sites and we will not be apologising to anyone in terms of dealing with contractors who don't respect safety laws or other laws be it immigration laws, tax laws, compliance with workers' comp and we intend to be very vigorous to get compliance with the law and I'm hopeful that the MBA can start being more attentive to these issues and assist us to clean the industry up.

PN106

MR KERSLAKE: Commissioner, I was asked to give an undertaking. I would support the comments of Mr Ferguson and indicate that on behalf of the Labor Council of New South Wales we would not compromise on safety. It is not our intention to produce anything but a safe industry. I'd also like to request, Commissioner, that as the issue of the statutory declarations was raised by the employers that we'd be interested to have a copy of them as well and the broad allegations that were made I'm told as things were flicked through is that there was not proper negotiations that took place. Well, how are we supposed to address that unless we know who the people are that have the concerns and we're given an opportunity to go and talk to them. It's not a matter of inappropriate attention, it's a matter of how do we resolve something that the employers have raised.

PN107

It is the case that we just walk away from here today with the employers having raised something that we can't actually deal with because they're not prepared to provide the particulars. It seems like it's just hanging there, Commissioner. So I don't understand why the employers have raised it if they don't wish to resolve it and where is the good faith in this process? Again, we are not raising the issue of good faith; the employers are raising the issue of good faith. We would be seeking to address the matter in good faith.

PN108

I don't know, perhaps there are CFMEU companies that are there but perhaps there are not. I don't know, I have no idea, Commissioner. So if we could have some indication from the employers of the names of the particular individuals who have submitted the statutory declarations we would request copies of the statutory declarations so we know the specifics of what is being raised otherwise the matter is just hanging there, Commissioner.

PN109

THE COMMISSIONER: Mr Murray?

PN110

MR MURRAY: I might just respond to both of those things, the question of the safety and the question of the statutory declarations in turn. Mr Ferguson and supported by Mr Kerslake have pointed out, and we certainly agree, the building industry is dangerous, yes, it is. The MBA takes seriously the question of safety but it is for that reason that we undertake that safety not be used inappropriately as a pretext for some other end. As I pointed out when I asked for the commitment, respect the right of the workers under law to take action where they have a reasonable belief as to the existence of an imminent risk to their health and safety.

PN111

However, what we are asking for is a commitment from the CFMEU and the Labor Council that there will not be industrial action taken fro reasons other than that using safety as a pretext. That is why we are asking for the commitment and it doesn't in any way adversely affect the right of workers and their unions to take action where there really is a safety risk or a reasonable belief as to the existence of a safety risk. When we have instances, as we have seen, of rather less than serious safety issues such as the heights or dimensions of partitioning of toilet cubicles on a building site as was reported to me that we would say would be the situation where safety was being used as a pretext particularly if in those circumstances, and I appreciate what Mr Ferguson says about not being apprised of all of the facts, but particularly if in those circumstances the mention is made of the 36 hour week campaign and those other issues that are between the parties.

PN112

All we are asking, therefore, is a commitment that safety will not be used as a pretext to secure other ends in the context of this situation. In relation to the question of the statutory declarations. Those statutory declarations were provided to us for the purpose of grounding a suitable application for termination of bargaining periods. Such applications have not yet been lodged. They have however, been foreshadowed should such an application be made, of course the evidence will be provided.

PN113

In the present circumstances though what is before you at the moment is conciliation. The question of evidence does not really come into play at this point in time I would submit Commissioner but at the time when applications are made certainly the evidence would be lodged and we are assuming it for that purpose. I do not have instructions to disclose the evidence except in that context. If the commission pleases.

PN114

MR FERGUSON: Once again they invited the Master Builders' Association to particularise. That unfortunately has not been forthcoming. If there was an issue in relation to amenities that does not constitute a safety issue but there are sites that have substandard amenities where amenities are not provided to actually the work force. Those companies have a competitive advantage against companies that do comply with the law but I cannot respond better than that.

PN115

I would be seeking an undertaking from the Master Builder's Association that if we identify any site where there are safety breaches they will immediately instruct that contractor to stop work, comply with safety laws. If we identify a contractor that is evading tax, that contractor will be instructed to stop work and also we do need more assistance with illegal immigrants being used. We have had 120 illegals arrested in the last three weeks. We want more assistance from the Master Builders' Association in terms of instructing their members to stop the use of illegals. The bottom line is we have never broken the law and we will continue that good practice.

PN116

THE COMMISSIONER: I think it is in everybody's interest that I should adjourn rather than going backwards and forwards. You have a meeting for Tuesday, you have asked for a report back here on Wednesday. Is 1.30 suitable?

PN117

MR MURRAY: Yes, that would suit us Commissioner.

PN118

MR FERGUSON: Yes, thank you Commissioner.

PN119

THE COMMISSIONER: All right. These proceedings will stand adjourned until 1.30pm Wednesday next.

ADJOURNED UNTIL WEDNESDAY, 23 OCTOBER 2002 [2.35pm]