C2002/5129, Transcript of Proceedings [2002] AIRCTrans 4330 (1 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2002/5129

BARCLAY MOWLEM CONSTRUCTION LIMITED

and

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY INFORMATION, POSTAL, PLUMBING AND
ALLIED SERVICES UNION OF AUSTRALIA AND ANOTHER

Notification pursuant to section 99 of the Act
of an industrial dispute re the supply of water to
site amenities etcetera

SYDNEY

10.08 AM, TUESDAY, 22 OCTOBER 2002

PN1

THE COMMISSIONER: Can I have the appearances, please.

PN2

MR P. SLATTERY: If the Commission pleases, I am from Barclay Mowlem Construction Limited, and appearing with me, Commissioner, is MR P. YAMIN, who is the project director of the Solomon Hospital project, if the Commission pleases.

PN3

MR S. MARSHALL: If the Commission pleases, I appear on behalf of the Construction, Forestry, Mining Energy Union of the New South Wales branch and also appearing with me MR D. MURPHY and MR J. BRCIC, our organisers involved in the matter.

PN4

MR B. WHELAN: Commissioner, I appear on behalf of the CEPU Employment Division, New South Wales branch.

PN5

MR D. WEIZMAN: If the Commission pleases, I appear for the CEPU Electrical Division.

PN6

MR E. O'BRIEN: Commissioner, I appear for the AMWU.

PN7

THE COMMISSIONER: Mr Slattery?

PN8

MR SLATTERY: Thank you, Commissioner. Commissioner, this is a notification pursuant to section 99 of the Act and it revolves around claims following industrial action on the Sutherland Hospital job. I'd like to take the Commission through the events of that action which occurred on 14 and 15 October this year. Commissioner, I'll be taking you to various items and issues which we believe that the union has made a claim in relation to an alleged safety dispute for the payment of lost time. We have disputed that on the basis that the correct and appropriate procedures have not been followed and that it was a spurious approach to take industrial action for other reasons in pursuit of other matters.

PN9

Commissioner, if I could take you to the facts in issue from our position. Commissioner, on 14 October this year at approximately 7.30am it was reported that representatives of the CFMEU and the CEPU visited the Sutherland Hospital site for the purpose of conducting their union business. Their union business I believe it's reported was in pursuit and to make the awareness of the EBA campaign and the 36 hour week campaign. Site management reported that at approximately 8am the water to the site amenities was found to be disconnected by the hospital. As a consequence of that, Commissioner, if I can take you into some more detail, the organisers on the project called a mass meeting of all the workers on the site, some 194 workers, in respect to the issue that the water had been gone off to the amenities.

PN10

Commissioner, it's reported that in relation to that particular issue that the men decided to leave the site and that would have occurred on or about a quarter to nine over the issue of the no water to the amenities. I can say that the hospital management had contacted the senior project management there, being Mr Peter Yamin, Mr Sel Ragonesei and Mr Peter Crabtree, stating that the hospital, due to emergency or other procedures, was required to turn the water off for approximately one hour.

PN11

I can say, Commissioner, that prior to the actual men leaving the site neither the organisers of any particular union have approached or attempted to approach site management in respect to the reasons as to why the water was off and/or as to what time the water would be reconnected. It would appear that at approximately 9.10am both Mr Brcic and Mr Murphy and I believe at the time Mr Ratana in the company of Mr Whelan who is a CEPU organiser visited the site office and spoke to Mr Yamin and Mr Ragonesei in respect to and stated that the site was closed due to the fact that there was no water.

PN12

It is alleged at that particular time that Mr Crabtree actually checked on the water and at that particular time when the organisers visited the office the water was reconnected. I can also state and it will come through in these proceedings that there other water services available in respect of this matter. In discussions between management and Mr Brcic it appeared and he stated that part of the reason for their visit and he stated, I believe, that there would be industrial action until the EBAs are signed up and the like.

PN13

Commissioner, I would also take you to the fact that at approximately 9.10 Mr Jason Gollan who is the Incoll RGA project manager for the Sutherland Hospital project, they are acting on behalf of the Public Works Department and the New South Wales Health Department, came to Mr Yamin to ask as to why the workers had left the site and Mr Yamin replied that they had left because of an alleged safety dispute over no water to the job. Mr Yamin suggested that we'll try and get the organisers back to find out what's going on which he did and Mr Brcic, Mr Murphy, Mr Ratana came back to the particular site office and it's alleged that Mr Murphy said that because there was no water on the site the men had to go home as a safety issue.

PN14

Mr Gollan and Mr Yamin correctly asked as to why the safety provisions had not been followed, and procedures, rather, had not been followed and also queried as to the fact that there was a portable water tanker and bottled water which was on the site and there were other water supplies there. It was stated, Commissioner, that it was not a situation of life and death. It was not a situation in which anyone's health or life was at risk. It was a situation where there was a glitch on the day in relation to the water for a putative time of one hour, Commissioner, the unions, we would suggest, had not taken or even taken consideration what the requirements are in relation to these issues.

PN15

They hadn't gone through the actual site safety committee who are duty bound and required to follow the safety dispute settlement. Commissioner, in the Barclay Mowlem Enterprise Agreement which is a registered agreement under this Act in C22048/99 is the registered number. It's an agreement which we hold between Barclay Mowlem Construction Limited, the New South Wales Building Group, and the CFMEU to cover our employees employed by Barclay Mowlem. Within that agreement at clause 4 at page 14, and I'll table a copy for the Commission's employment and one for the union, I didn't realise there was going to be so many unions here. Commissioner, if I can take you to page 14 of that document, if it could be marked as an exhibit.

PN16

THE COMMISSIONER: I'll mark this as exhibit S1.

EXHIBIT #S1 AGREEMENT

PN17

MR SLATTERY: Commissioner, as stated at page 14 clause 4 the safety disputes procedure, there is quite a detailed prescription there, Commissioner, which clearly states:

PN18

Where a safety problem exists, an inspection of the area shall be made by a member of the Barclay Mowlem management team together with a safety chairperson.

PN19

I suggest this didn't really happen.

PN20

If there is any safety measure that needs to be taken or any remedial action required ...(reads)... and/or the employer's safety representative.

PN21

Importantly, it goes on to state that:

PN22

If agreement is not reached between the Barclay Mowlem representative ...(reads)... pending the work cover inspection.

PN23

This did not occur.

PN24

Should a particular project be in dispute on the basis that work cover ...(reads)... will not leave the site without the approval of the project director or manager, in this case.

PN25

Quite clearly, through the events and the facts in issue, this did not occur. Mr Yamin was not advised that the men were leaving the site in relation to this issue and had no involvement until such time the industrial action, as we would call it, had been taken by the rank and file no doubt with the authorisation of their organisers.

PN26

There's to be an immediate inspection of the site involving both Barclay Mowlem ...(reads)... inspected by the site safety committee.

PN27

I can say, Commissioner, there was no inspection done except for the fact that it was acknowledged that the water was off and that within a period of one hour and the union didn't even take the time which we would have expected them to take as responsible organisers to come and speak with senior management as to what the circumstances were and when any other alternative would be available. This did not happen.

PN28

It goes on to say:

PN29

The areas of agreed rectification of all employees including the ...(reads)... when the zone has been cleared.

PN30

Commissioner, I would also suggest that whilst we have quite a number of subcontractors on this job who would also be bound by their own individual and relevant enterprise agreements which I'd suggest are part of this Commission, under the authority of this Commission, that each of those particular enterprise agreements would have a similar or the same prescription for the management of safety disputes in the job and/or any other grievance procedure.

PN31

Commissioner, I would suggest that in relation to this particular day of incidents where the job was out for the remainder of the whole day, some eight hours and they worked regular overtime up to approximately nine and a half to ten hours per day, we have a situation of 194 employees called out on what we would believe to be an industrial stoppage because there was no direction in relation to following the procedures and that the incident in relation to the water going off was a mere one hour.

PN32

Commissioner, we would see that this basically could have been used as a spurious sort of approach to take industrial action to further their claims in relation to the EBAs. We would suggest this has cost, from Mr Yeoman's approximate calculation, which is pretty detailed, that one stoppage for the day on the job has cost something in the vicinity of $40,000. The job is public works, the hospital is for the public, it is public money and we would suggest that the action taken by the unions is irresponsible with no consideration for the public, no consideration for the procedures, no consideration for the actual welfare of the men on the job and also, again, their pay packets. They have made a claim for payment of lost time. We have disputed that claim on the grounds which I have already put forward.

PN33

On the following day, Tuesday, 15 October 2002, at approximately 7.30 am it is recorded that Mr Joe Brcic and Mr Whelan revisited the site and called a mass meeting to gain support for the union's new enterprise agreement plan. At approximately 8.30 the workforce voted to take strike action in support of these claims. Mr Brcic I believe informed site management but they had protected action in relation to this, an action which was not correct, or coverage was not correct. I can table for the Commission two documents, Commissioner.

PN34

On 3 October the Construction, Forestry and Energy Union, the Construction General Division, issued a notice of an initiation of a bargaining period on Barclay Mowlem Construction Limited under the provisions of section 170MI(2) of the Workplace Relations Act. The notice was signed by Andrew Ferguson, who is the state secretary of that union. It was served by registered post and acknowledged by the company that they would be pursuing a claim in relation to their new round of enterprise agreements which we are quite aware of and in the process of negotiating at this particular time.

PN35

Commissioner, of importance, Mr Brcic has taken the lead to say that the men are under protected action. The date was 15 October 2002. It wasn't until 15 October 2002 that the CFMEU actually issued a section 170MO of the Workplace Relations Act, which was a notice that protected action would take place and as you would be aware, Commissioner, "and such action will not commence until 22 October", which is today's date, and "all sites", so on and so forth.

PN36

Commissioner, it's quite clear that the action taken on Tuesday, 15 October is unprotected action, again these men were not covered. Commissioner, the site, again 194 individual men left the site taking this believed protected action in pursuit of their industrial claim which comes through to that. The CEPU allegedly said, well, we're not involved in this and then further claims that it was a safety dispute because Barclay Mowlem couldn't supply an occupational first aider or operators for the lift and the hoist and other materials for handling deeming that it would be unsafe.

PN37

Commissioner, I would argue and advocate that given the action by the CFMEU and the collective support no doubt given by the CEPU irrespective of the fact that they were in different phases of their negotiations, it was clearly an industrial strike and had nothing to do with safety. Commissioner, on Wednesday, 16 October the work force did return to work and the site worked normally. However since that time the unions have pursued their claim, some times in a little bit of a menacing way, in relation to the lost time for the Monday in particular.

PN38

There has not been a claim made by the CFMEU in respect to the loss claimed for the Tuesday, except for the CEPU. Commissioner, we would see that the unions have acted inappropriately and that any claims in relation to lost time for the alleged safety dispute should be discounted by this Commission, if the Commission pleases.

PN39

THE COMMISSIONER: Mr Marshall?

PN40

MR MARSHALL: Commissioner, following on from what Mr Slattery had to say I'm just going to briefly address you and then leave the detail up to the organisers. I suppose the first points we make was that on the Monday there was consultation. Our organisers spoke to Peter Crabtree who is the senior foreman on the OH&S committee for Barclay Mowlem, so consultation did take place on that day. I am informed by the organisers that some of the workers were redeployed to other sites as you would expect when consultation was taking place.

PN41

Now, we make it quite clear that we're not making a claim for the Tuesday and there was a mistake made on our behalf in terms of the protected action. The organiser didn't understand. He thought the notice had gone out that day, he thought he could start that so that's why we're not making a claim for that day. But there was consultation that day. There was an imminent health and safety risk in that there was no water and at the time that the workers left the site they didn't know, Barclay's couldn't say when the water was coming back on again.

PN42

It is good the water came back on quickly, but they weren't to know that at the time and redeployment had been attempted and the rest of them went home, but I'll leave Dan and Joe to address the details.

PN43

MR MURPHY: Thank you, Commissioner. The first thing I would like to say is that I believe this has been notified pursuant to section 99 of the Workplace Relations Act and Mr Slattery and Barclay Mowlem are seeking a cessation of industrial action.

PN44

Well, there is no industrial action taking place on the site, ongoing. A claim has been put in with Barclay Mowlem for payment of time lost by workers due to a safety problem on the job. I'm sure you're familiar with it, Commissioner, but we point to the definition of "industrial action" in section 4.1 of the Workplace Relations Act.

PN45

Industrial action does not include ...(reads)... to perform other available work.

PN46

Well, that is certainly the case, and I can detail that, but our contention is that there was no industrial action taken by Monday. Circumstances on the site forced workers to stop work and because it was no fault of their own they would like to be paid for that.

PN47

There was no claim associated with that. No claim was taken up with Barclay Mowlem's office on Monday. There was no dispute over anything on Monday. All there was was a failure by Barclay Mowlem to supply water to the site for an extended period of time, which led workers to have reasonable concern for their own health, safety and welfare at work and they took the appropriate and reasonable action.

PN48

So, in my understanding and on my reading of the notification of the Act, I don't see why we're here because there is no industrial action ongoing on the site and there was no industrial action on the Monday. The easiest example of this is to say, yes, rightly or wrongly, the workers took industrial action in support of an industrial claim on the Tuesday. The reason we were down there on the Monday was to commence discussions with our membership about the new EBA campaign, given that the agreement covering most of the workers on site has recently expired.

PN49

Now, that never took place because shortly after I arrived on site this safety issue, the lack of water, was brought to our attention. Now, we're certainly not seeking payment for Tuesday. Rightly or wrongly, protected or unprotected, we may have made a mistake and it looks as if we may have done so. We're not seeking payment for that. That was industrial action. Monday was a safety problem and a failure by Barclay Mowlem to manage health and safety on the site. That's our opinion. There is no industrial action and we are seeking payment for the workers for the Monday.

PN50

I'll address some of the details of the event and address some of the points Mr Slattery has raised. I think it's appropriate to help establish our case that industrial action has not taken place on the day Mr Slattery says it has. I attended the site. I was one of the officials who attended the site a week go last Monday. In relation to the point in the notification that at no time did any of the union officials consult with management: that's incorrect.

PN51

Senior foremen and Barclay Mowlem's representative on the Safety Committee, Peter Crabtree, were in repeated contact with myself, Joe Brcic, and Nelson Moniker, the employee safety officer on site, informed them that he was seeking to have the water re-connected and that he did not know what the source of the problem was.

PN52

There was no attempt, during the period that the water was off, by Barclay Mowlem management, other than that brief contact with Peter Crabtree, to convene a meeting of the Safety Committee during the time that the water supply was lost nor was there any contingency plan put into action, such as supplying bottled water to the first-aid room and drinking water points throughout the site. In fact no such contingency plan exits on the site despite the water supply having been lost before on numerous occasions.

PN53

Numerous workers approached the union officials and Nelson Moniker, the safety officer, beginning shortly after 7.30 am when the problem arose. At about 8.30 am, given widespread concern and the failure to restore water and the failure to implement any contingency, officials and Nelson Moniker decided to conduct a meeting of the workers.

PN54

At this meeting workers expressed concern at having been working on the site while water was lost and, as water was also not flowing the site amenities and toilet areas, workers decided to leave the site to protect their own health and safety. At this time toilets weren't flushing and some of them were starting to smell. There was no drinking water on site; the site amenities had not been able to be cleaned that morning because of the lack of water on the site.

PN55

Apart from cool, clear drinking water supply being required under WorkCover Code of Practice, and the temperature as forecast for the high 20s that day and it was already warm in the morning, the workers needed to pour on welds, damp, hazardous or fibrous material prior to cutting, cleaning up spills, operating certain types of machinery, such as brick saws, and water is, of course, essential for first-aid treatment.

PN56

In regard to the workers leaving the site with the amenities being affected as well as the work areas of the site: this accords with usual industry practice in addressing health and safety on site whereby if an area is unsafe it is vacated while safety is addressed. However, if there is an issue which affects health and safety across the whole site, such as insufficient amenities or no water supply, the workers would leave the site. That is the way those issues are addressed on site, obviously in conjunction with provisions in enterprise agreements and site agreements.

PN57

Now, I'll address Mr Slattery producing Barclay Mowlem's EBA. Approximately 2 to 3 per cent of the workers on site would be working under this enterprise agreement. The vast majority of people work under separate enterprise agreements. So any provisions in there are relevant only in addressing the behaviour of Barclay Mowlem employees; but I would point out that the last section of that, points (a) to (f), which Mr Slattery went into in some detail, only apply if WorkCover has deemed the whole project unsafe.

PN58

WorkCover was not involved in this, rightly or wrongly. it never had any involvement in this instance. So those points aren't really relevant, which is enough to dismiss those whole clauses of the EBA out of hand, but Mr Slattery's representation of them isn't completely relevant and it's important to add and stress that they only cover a small number of people on site.

PN59

THE COMMISSIONER: Who are the rest covered by?

PN60

MR MURPHY: The vast majority of them would have a separate enterprise agreement which would have different safety procedure clauses from that. So tabling that in here doesn't affect anyone and isn't relevant to anyone except the Barclay Mowlem employees.

PN61

THE COMMISSIONER: I imagine the other agreements would have a dispute settling clause though?

PN62

MR MURPHY: They would have a dispute settling clause - this is the majority, not knowing them all - and would have a health and safety clause of them, dealing with health and safety matters.

PN63

THE COMMISSIONER: So is the claim for lost time on those individual contractors on Barclay Mowlem?

PN64

MR MURPHY: Well, on both, on Barclay Mowlem and the individual subcontractors. It does not just relate to Barclay Mowlem's employees. This brings me to the point that we have a funny situation here where some have been paid and some haven't. We usually conduct these settlements over lost time - and I've done many of them with Peter Slattery - through the principal contractor, that's the way these things are structured, who then, if agreement is reached, conveys that through to the subcontractors.

PN65

Myself and Joe Brcic conveyed the workers' decision to Sel Ragonesei, the project manager. Shortly after that a meeting was held with Sel Ragonesei, Peter Yamin and Jason Gollan, who has been mentioned - I think he's a consultant for Incoll RGA, which is managing the building of the project for the hospital, I believe.

PN66

At that meeting Jason Gollan explained the cause of the problem was a mistake made by someone in the hospital with a valve. However, the hospital had been able to keep running due to an emergency supply of water which was kept in tanks in the hospital being put on stream. So there was a contingency plan there but not by Barclays.

PN67

Just in relation to Simos, I'll address here some of the points that Peter Slattery raised in his comments which are incorrect, he said there was a portable water tanker on the site and bottled water on the site. At that meeting with those three individuals we did have a brief discussion about how you would handle the problem in future occurrences of losing water and we suggested, well, why don't you have a tanker on site and Peter Yamin and Jason expressly concerned that that would be too expensive to have a tanker, a water cart or tanker sitting around on site full time.

PN68

There certainly was no such tanker or bottled water on the site and someone from Barclay Mowlem may have a bottle in the frig they brought for lunch but certainly there was no supply on site for supplying to the workers or to the first aid shed and it is incorrect for people to allege that and surely if they were there on site they would have been produced and put into place. So I contend that they didn't exist on site and if they did they certainly weren't produced when the water was lost.

PN69

Actually no, just staying on the day if can for a minute, to just to back track to a point. Peter has contradicted himself actually, he said in his notification that water was resolved by hospital maintenance at 8.55 am in his written notification and then today he has told us that after we had a meeting with Sel Ragonesei, myself and Joe, at 9.10 am, shortly after that meeting or during the time we held that meeting Peter Crabtree from Barclay Mowlem was able to tell us that water was restored. I agree the water came on, I would have said shortly after 9 o'clock and probably near enough to 10 past 9, but not 8.55 as put in the notification.

PN70

I believe the first time it was raised with me on the site was approximately half past seven so approximately an hour transpired between the problem being brought to my attention and Barclay Mowlem attention's, Peter Crabtree from Barclay Mowlem's attention and the workers deciding it was a big enough problem for them to have to leave site and then there was another, all up you're looking at over an hour and a half of the site being deprived of water.

PN71

On Tuesday morning I returned to the site with the organisation Joe Brcic where Sel Ragonesei, from Barclay Mowlem, indicated to us that the thought the workers would be paid for Monday given that there is a safety problem in line with the pretty much standard practice on these matters. A number of subcontractors received advice from Barclay Mowlem that the workers would be paid and some of them then went ahead and paid their workers, mostly those who would put their workers pay through on Tuesday evening.

PN72

Some subcontractors were told on Tuesday that, yes, workers would have to be paid for the full day for Monday, normal time, and then on Wednesday received contrary advice from Barclay Mowlem and then did not go ahead and pay their workers. At present approximately 30 to 40 percent of the workers on site have been paid for the full day on Monday. I have to raise here, because it is important, that members of the interim building and construction industry task force attended the site last week and Barclay Mowlem and other subcontractors have told us that the reversal of the decision to pay workers took place after talking to members of the task force and that the task force was, to quote Peter, looking over their shoulder on this one.

PN73

Our understanding the task force, and being tabled in this press release, Tony Abbott's press release, establishing the task force is to do with breaches of the Workplace Relations Act and Freedom of Association provision, it has no role in health and safety. So the events and the information we've received raises two important questions, was there any improper cohesion or threats issued by members of this task force to the employees to reverse the earlier instructions to pay the workers, and who is managing health and safety at Sutherland Hospital, Barclay Mowlem or the building and construction industry interim task force.

PN74

Peter Slattery's contention that payment claim over a safety issue is a matter for the Commission to deal with pursuant to section 124 of the Act is not correct in this instance, there is no claim for any payment in relation to industrial action, all there is is a claim, and if you like, a claim following a reversal of a commitment to pay for a safety problem last Monday, a reversal of that decision leading to a problem situation on site where some people are paid and some people aren't.

PN75

We are confident that we have dealt with the matter correctly and that workers did have a reasonable concern about their health and safety on site last Monday, a week ago Monday, and they did the right thing and correct procedures were followed and as such we think if the Commission is able to deal with this issue instruct the Barclay Mowlem to agree to the rest of the workers be paid for Monday, if indeed you're able to do that because I believe that there is some problems with the notification because there is no industrial action on the site.

PN76

There was industrial action last Tuesday which has been and gone and has resulted in a number of negotiations commencing between companies and unions regarding the next round of the EBA and they are taking place and they will run their course and be concluded with or without further action but there was no industrial action taken on Monday and it is a fallacy to suggest that it was and there has been no industrial since so I don't really know what we're doing here. We'd like to settle the matter of payment with Barclay Mowlem and obviously we'd like them to reverse their decision and go before the task force before they change their mind and have everyone paid for last Monday, the other 60 or 70 percent of the workforce. Thank you, Commissioner.

PN77

THE COMMISSIONER: I think you're here because there's an alleged industrial dispute and that's pursuant to section 99.

PN78

MR MURPHY: We're saying there is no industrial dispute.

PN79

THE COMMISSIONER: Well, there is no industrial action but you're still in dispute over payment.

PN80

MR MURPHY: We are in dispute over payment but we don't agree that any of that was industrial action like he alleges.

PN81

THE COMMISSIONER: All right. Mr Brcic, or anybody else?

PN82

MR BRCIC: Commissioner, that pretty much sums up what's occurred, as the union organiser for that area I've had quite a good working relationship with Barclay Mowlem. We have on one other occasion had, you know, a safety issue occur where the matter was resolved between myself and Barclays quite amicably, the procedure took place, this was some months ago where some contractors were diverted to other jobs, some were left to work in safe areas and other were sent away as they had no other work.

PN83

This is exactly the same as what's happened in the past, the only difference is that the interim task force turned up on the job I believe last Monday afternoon, well after we had left, there was I believe three people from the task force who were instructing Barclays to basically make out that it is an industrial dispute and refuse payment and Barclays I believe have used that to their advantage to no pay the workers.

PN84

It is ironic that a number of subbies have paid their men and I've spoken to a number of them, one being Jabak Rendering, who were doing the cement rendering on the job who have told me that they paid their men as instructed by Barclays. Mr Ragonesei, in the presence of Mr Yamin conceded that it was a safety issue, he said that he couldn't see a problem with it being paid, he said however you'd have to speak to management that was above him but he didn't see a problem with it. All of a sudden a short time later its an issue and they are saying workers aren't going to be paid.

PN85

What concerns me is also Barclays have had a pretty fair run with the CFMEU and other unions in terms of loss of water, as the area organiser on that job for well over six months now the water has gone off at least a dozen times on the job. I've been notified, I've always, most of the time I haven't been there and I've always rang either Peter Yamin or Sel Ragonesei to let them know workers are complaining can you hurry up and get your water back on if I keep hearing complaints then I have to go out to the site and address the issue with the workers and they've managed to get the water on pretty quickly after I've spoken to them.

PN86

On this occasion when we turned up in the morning the workers had had enough, it happened that many times and Barclays are basically being let go that many times, there hadn't been any contingency plan whatsoever on how to handle this issue if it arises again, and what upset myself along with the workers was that it has happened before why haven't they addressed it and brought in some sort of temporary measure.

PN87

Now, in this case, as Dan has pointed out, when we were on site on the Monday morning nobody could tell us when the water was going to come back on, there was no contingency plan to have temporary water set up for the workers. The toilet facilities started to smell, the toilet facilities are right next to the amenity sheds, right next to a shed that sells food there, the workers were really upset. We had a planned meeting with the workers for smoko and during this smoko we were planning a meeting which was 9.30 and the workers at 7.30 were bringing up these points and we would have spoken to at least 50 or more workers about the issue, there was no drinking water on the site anywhere, no toilet facilities on the site anywhere and we brought this matter up with Peter Crabtree.

PN88

I spoke to Sel Ragonesei about it over the phone because Sel had actually rung me while we were on the site speaking to workers to let me know that it was a hospital issue and they were trying to work with the hospital to try and get it back on. Probably about an hour had passed before the pressure got too much and we had to have a meeting with the workers, there was that many workers complaining and saying, look, what's going on, nobody seemed to know anything, there was no meeting being organised by Barclays or the safety committee or anybody else on site.

PN89

When we met with the workers it was unanimous, the workers were sick of it, they were sick of being left without water and no other facility being arranged for them. They were sick of the fact that Barclays were basically taking it for granted that they had a good working relationship with myself and were using that to their advantage rather than to the advantage of the workers and when we had the meeting the workers voiced their opinion and said, look, if we can't get some sort of reasonable alternative facilities, if we can't get some sort of time frame of when the water is going to be back on, I mean, how long are we supposed to wait, do we wait two hours, do we wait an hour, do we wait five hours, how long do we wait.

PN90

Like we said, the toilets couldn't flush and during that time of the morning a lot of people were using the toilets, the toilets were smelly and it was warming up to be a warm day too, there was no drinking water on site at all apart from the odd person had a bottle of water somewhere. Now, when we had the meeting with the workers we explained to them quite clearly it is a safety issue, if your employer has an alternative place of work for you to work in then you're legally obliged to go to that alternative workplace and a number of subbies did go to alternative workplaces, but the ones that didn't should be paid for it as they had nowhere else to work. I mean, Barclays clearly conceded that it was a safety issue at the time and then they reversed because of Mr Copeland and the interim task force turning up. That's all I have to say on the matter, Commissioner.

PN91

THE COMMISSIONER: Thanks, anybody else?

PN92

MR WHELAN: Mr Commissioner, for the employment union there's just a few corrections I'd like to make to Mr Slattery's statements. He alleges that on the Monday his belief was that the unions turned up for an industrial matter following on from a claim over EBAs. I wasn't present at that time at that meeting, although Peter alleges I was there, I never actually turned up till after the meeting transpired. The reason I turned up was I had no arrangements to be on that job at that time, there were phone calls made from my delegates saying that the water had been off.

PN93

I then contacted Joe from the CFMEU, Joe Brcic, and he informed me there is a problem with the water. Now, I came from Eastgardens in Botany Bay there, I'd say it was half an hour to get there and in all that time the process of trying to find out what was going on, when the water was going to be put back on, all that process was continuing between Peter Slattery and the other union officials that were there.

PN94

Now, my concern was when I got there the meeting had already taken place, the lads had gone home because of the facilities and the water was off. I then attended the site office where I spoke to the senior management of the site office and I think their major concern which has been related to you today was the fact that there was no consultation. I said at that present meeting if there is no consultation correctly, there wasn't in regards to the managerial staff as how you're going to deal with this problem.

PN95

It was quite clear that the water had been off for an hour and at that point there is no decision, there is no confirmed time when the water is back on, there is only a certain amount of work to be done and we believe it will be a 15 minute period or it would be within half an hour, nobody knew when the water was back on. I think the other officials have already gone through the process of saying how that it does affect the site in regards to health and hygiene and in regards to the site amenities and there was, you know, food there, a stall there. They have no water, more to the point though the first day they had no water, safety procedures which require water, there is no provision made for that.

PN96

Now if Barclay-Mowlem were genuine about this issue, I believe it has happened before, I believe what they should have done is they should have called the meeting, it shouldn't have been the officials they should have consulted through their safety committee although they are alleging that we never consulted through the safety committee, it is the duty of care of the employer to provide these different provisions, water being one of the most essential parts on a site. They never put any infrastructure or any provisions there to work out anything for the members to return to the sheds for this alleged water tanker that wasn't present at the time when we had the meeting.

PN97

I believe that they're actually pushing it into an industrial agenda but actually for their own aims. It was a genuine safety dispute, Again, on the Tuesday, Mr Slattery alleges that I attended the site meeting along with Joe and a number of other organisers to talk about an EBA, it was made quite clear at that meeting for myself in regards to the plumbing division of the CEPU that our negotiations over an EBA has more or less been finalised, it was over, we had more or less completed our negotiations over the EBA, there was no reason for us to take any industrial action at that day.

PN98

As a consequence no industrial action was taken by this union on that day. When the sites decided for whatever reasons, rightly or wrongly, that they would go off the site for industrial actions the plumbing division of the CEPU stayed on the sites. So again this attempt to marriage the two, the safety disputes that occurred on the Monday and the industrial action taken by the CFMEU on the Tuesday is again incorrect.

PN99

What happened with ourselves on that day as we returned to the site sheds, the water was off. It wasn't an issue at that stage, we returned to the site sheds where we remained, because the safety committee met on that job and said that the job was unsafe as the correct safety provisions were not in place, the occupational health and safety officer was not present, the hoist drivers, basically the site was deserted. We didn't deem the site to be safe enough for our members to return to work.

PN100

Again, that's Tuesday's issue. On Monday, it is quite clear, there was safety. I reject any suggestion that there was anything but safety. Their only complaint is not the fact that the water went off and it was a safety problem, I believe their only complaint is that there was no consultation. The consultation has got to come from Barclay-Mowlem staff and it has to come from them directing the workers on the best way of dealing with the water provisions needs. Quite clearly no other provisions were made for the water. Thank you, Commissioner.

PN101

THE COMMISSIONER: Yes, Mr Weizman.

PN102

MR WEIZMAN: Commissioner, I concur with my colleagues, with Mr Whelan, about the Tuesday issue. The members of the CEPU Electrical Division also remained on site that day but didn't work due to the site being deemed unsafe by the safety committee with no first aider or hoist driver or other facilities as such, if the Commission pleases.

PN103

THE COMMISSIONER: Thank you. Mr Slattery.

PN104

MR SLATTERY: Commissioner, just to take up a couple of points, Mr Murphy stated that Mr Crabtree had the authority in relation to the management of the site; that is not correct. Whilst Mr Crabtree is a general foreman on the job, he doesn't have the authority to make decisions in relation to payment and decisions in relation to what will happen or not happen. That authority lies solely with Mr Peter Yamin, who is project director on the project.

PN105

We take issue with the statement that there was no opportunity and no consultation for going back to our own disputes settlement procedure. Whilst the union is collectively saying that management didn't take the lead in relation to that, we were certainly in a position to find out what was going on, they had already initiated a stopwork mass meeting in relation to that prior to full consultation with site management as to when the water would be reconnected by the hospital, what the time was and what the due process would be. The action taken by the union was taken prior to any consultation or through the safety disputes procedure and/or any other general industry convention as to the management of such matters.

PN106

In relation to Mr Gollan and that meeting, I stand corrected there, at that particular time, in consultation with Mr Yamin, the actual water tanker and the like was not present on the job, but the issue was there, there was the opportunity have other resources there to supplement that or to find an alternative water source which may have been available through the hospital. Again, the opportunity was not given through a collective meeting of the union officials to say, look, this is what the problem is, this is what we can do to alleviate that, where are we at, it was a reaction taken by the employees on that job and no doubt with the guidance of the organisers.

PN107

There was also an assertion made by Mr Murphy that the only reason that Barclay-Mowlem changed its decision in relation to the payment of lost time, in relation to Monday, was because of the intervention of the building industry task force. I have to state categorically that is not the case and never would be the case. The situation is quite clear that their action is independent in relation to this dispute of alleged industrial breaches of the Act and have quite frequently had no role in safety but the Act does provide within the provisions a follow through, so to state that Barclay-Mowlem changed its view in relation is totally erroneous and mischievous.

PN108

I was contacted by Mr Ragonesei and Mr Yamin in relation to the issue, my direction was issued having given assessment to all the facts and because of the fact that no consultation had taken place and the safety committee had not been involved, there should be no payment made because it would be deemed and I would see it as industrial action, given the premise that the unions were there in the first place.

PN109

Just as an example of that, on Friday the 18th there was a dispute in relation to sufficient nurse calls on the job and hearing it quite clearly, there was an assessment of that, they did go through the correct process, they did go through consultation, there was remedial action put in place, that claim in relation to that safety dispute and those issues has not been denied, so if we were in a situation of being frightened of the building industry task force about paying lost time for safety disputes we wouldn't have made that consent.

PN110

Mr Brcic made a submission in relation to the water going off at Sutherland Hospital. He stated it was a dozen times in speaking to Mr Yamin. This issue has only occurred twice before and we would take that as a little bit over the top.

PN111

In relation to the site safety committee, there was an allegation or suggestion made that the site management had not taken the lead in relation to the consultation. We rebut that on the basis that three members of the site safety committee there, the site safety representative Mr Crabtree was not allowed to be involved, there were also mass meetings going on at that particular time so it would have been quite impractical then to say, fellows, we want to have a talk to you, while they had a mass meeting going on.

PN112

Quite clearly, with the timing and the difficulty there it couldn't have occurred. We would put to the Commission that the correct and rightful time for the men to have their meeting with their representatives, which they have every right in the world to do, that would have been the time for the officials to come and speak to the management about the water issue, as to when it would be rectified and when the men would be going back or relocated.

PN113

Mr Whelan made a suggestion that our submissions were wrong, he may have been reading from the initial part of the proceedings on the 14th, if he wasn't there, my notice doesn't mention his name, if he was there it was only in relation to the second day and he was clearly involved in further meetings with Mr Gollan and senior management. It was never suggested he was there in the early part.

PN114

THE COMMISSIONER: Who is this?

PN115

MR SLATTERY: Mr Whelan of the CEPU. Mr Whelan also put to this Commission that his particular members were available to work on the 15th irrespective of the industrial action taken by members of the CFMEU. I would suggest again that it was a situation in which no longer had any safety issue involved, his own submission stated that there was water available, there were facilities available but quite clearly there was no occupational first aider from the workers side, that he was engaged by Barclay-Mowlem, or that there would be a hoist driver or any other materials handy.

PN116

Quite correct, but quite clearly in relation to their members working, if they were serious about it, Mr Crabtree did offer and said, well, look, fellows, I am a senior first aider, you have only got a number of guys on the job, I can supply that facility to you if you so wish. By union policy that would never happen in a day in a life of any construction worker in Sydney, it is not acceptable in their minds for anyone from management to provide that service and again, it is a spurious argument to make a claim.

PN117

Commissioner, with that we would see in relation to the matter that the facts are before you and we would ask you to make your decision on those facts, if the Commission pleases.

PN118

THE COMMISSIONER: What sort of decision are you asking me to make?

PN119

MR SLATTERY: Commissioner, I am asking you to make a decision in relation to the Monday, we would believe that the premise of their being there on the Monday was to further their claim, which they have a right to do, and to speak to their members. We say that in relation to the safety issue in relation to the water, there was an issue there but there was no consultation. There was an hour or two hours there in relation to a possible safety issue, given the hygiene, given the light, but that particular matter had been remedied through the hospital management.

PN120

The decision that the men took following that mass meeting, without consultation, is clearly unauthorised absence from the job. They hadn't followed the procedures, they hadn't remained on the job or even allowed the contractors to be relocated. There was no opportunity given to our employees to be relocated to any other Barclay-Mowlem job and we have some 10, 15 jobs.

PN121

Commissioner, the decision the company would like is that if there is an element of lost time due to the safety dispute - as to their meeting and time, I can see there is some justification for that, but I think from that point on to have taken an action without authority is clearly outside the realm of fairness or reasonableness in payment, given the cost involved. The Tuesday stands alone, our position there is that it is purely industrial and whilst I respect the submissions of Mr Whelan, we just don't agree with them. If the Commission pleases.

PN122

THE COMMISSIONER: I think in the circumstances we will adjourn into private conference as I want to talk to you jointly and separately. I will be with you in five minutes. These proceedings stand adjourned.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 AGREEMENT PN17