C2002/5307, Transcript of Proceedings [2002] AIRCTrans 4617 (15 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION

COMMISSIONER HARRISON

C2002/5307
C2002/5333
C2002/5334

TOM STEEL PTY LIMITED
and
CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the
Act of an industrial dispute

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Tom Steel Pty Limited and Construction,
Forestry, Mining and Energy Union on certain
actions in tort

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL ACTION

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

SYDNEY

11.11 AM, MONDAY, 4 NOVEMBER 2002

PN1

THE COMMISSIONER: Can I have the appearances please?

PN2

MR G. THOMAS: I appear for the Master Builders' Association of New South Wales and for it's member Tom Steel Pty Limited. With me is MR B. KARANTONIS of the company, as the commission pleases.

PN3

MS R. MALLIA: I appear for the Construction, Forestry, Mining and Energy Union. With me MR B. PARKER, Assistant Secretary of the union. I just want to thank the commission for that extra bit of time to get here.

PN4

THE COMMISSIONER: Thank you Ms Mallia. Mr Thomas? I should indicate that I have also received an application pursuant to section 170MW to terminate the bargaining period between the CFMEU and Tom Steel. I haven't formally listed that at this stage. It only arrived earlier today.

PN5

MR THOMAS: Commissioner I was going to raise that issue with you. Indeed the Master Builders' Association has lodged such an application in these proceedings. Its significance may become more evident as these proceedings develop but it could indeed emerge as an issue at a later stage. Commissioner if I may take you to the terms of the notification before first, on 10 October, Tom Steel was served with a notice of intention from the CFMEU to initiate a bargaining period with the company. That was lodged in accordance with the Act and it was follow shortly after on the 16th I believe by a notice to Tom Steel of its intention to engage in protected action against the company and that action was to commence on 22 October.

PN6

I indicate for the record that between the 10th and the 16th there was no contact between the union and Tom Steel, no attempt to negotiate in good faith, no other approach. On 25 October, representatives of the company attended a meeting at the CFMEU office in Wentworth Avenue where indeed there was a meeting. That was, I understand, with Mr Vega and Mr Parker. The company had also arranged to meet with the union in the person of Mr Vega later on 31 October.

PN7

Now that arrangement was overtaken by events of that day that form the basis of the applications and notices before you this morning. Indeed they provide part of the explanation for the framework that those various notices and applications take. I am prepared today to introduce evidence to the effect that at about 10.30 or 11 on 31 October, two CFMEU organisers, Mr French and Mr Tulloch, entered the Barclay Mowlem, the waterfront project at Benelong Road, Homebush. They entered the premises using authorities issued under the Industrial Relations Act of New South Wales as authorised persons.

PN8

There was no 24 hours notice provided as required under provisions of the Workplace Relations Act. In circumstances where the officials seek to transact industrial business on the projects. The officials then proceeded in conjunction with Barclay Mowlem's delegate on the job to direct employees of Tom Steel to sit in the sheds. We will be providing evidence that at that stage part of the reason for them sitting in sheds had to do with EBA negotiations and the fact that the CFMEU wanted the EBA signed. Later, it emerged that there was a problem with a work method statement. That problem was sufficient serious in the view of Mr French and Mr Tulloch to persist in their actions of stopping the Tom Steel employees from returning to work.

PN9

Indeed the director of the company had to make arrangements to have another copy of the work method statement faxed to the site, the one that was supposed to be on site could not be found. Another was faxed to the site. There were discussions in the course of the afternoon of the 31st as to the restructuring of the work method statement. There was also discussion or allegations made of alleged breaches of the company's certified agreement. That agreement is an agreement with the CFMEU and the allegations made at an early stage on Thursday afternoon was that casuals were being incorrectly paid under that agreement.

PN10

The company director went to the office of his accountant, obtained the books, took photocopies, returned to the site, the Barclay Mowlem site at Homebush Bay. Took copies of the books after officials of the union had satisfied themselves as to their authenticity. Then the position was that Tom Steel by that time it was too late to resume work on the Thursday but the normal work would resume on Friday after a toolbox meeting to induct employees on the changes in the work method statement and then it would be normal work while the union looked at the employees books.

PN11

No such undertaking was given. It was resolved then that I would, in the course of and prior to another meeting the next day, on the Friday, put the same proposition to Mr Brian Fitzpatrick. I met with Mr Brian Fitzpatrick and his response was to do no more than make telephone calls, the purpose of which was to put in place further industrial action that Friday. There was an arrangement reached with Barclay Mowlem that some employees would stay on the job but other employees were sent home for the day, significantly people who were engaged as casuals.

PN12

There was a repetition of that conduct on other sites on another Barclay Mowlem site in Talavera Road, Ryde and at an Australand project that is located in Alexandria on the corner of Mandible and Wyndham Streets, Alexandria. At that particular site, an organiser of the union entered the site, directed the employees of the company to sit in the sheds, the purpose being alleged breaches of a certified agreement and also signing the EBA. An issue also on this particular site was that the work method statement for the company did not make reference to hot and cold conditions.

PN13

Now that was part of the pretext under which work was stopped. I shall be bring evidence later in these proceedings if required, sir, that will substantiate that. Now I find myself in the position once notifying a matter under section 99 is the action protected or is it not. Quite frankly I am not sure what the union's position on this, I have a very clear understanding myself that the action taken in the form that it has taken is absolutely not protected action.

PN14

There has been absolutely no decision on the part of Tom Steel employees to stop work. The decision to stop work has been taken either by officials of the union and to a lesser extent by the Barclay Mowlem delegate at the waterfront at Homebush Bay who, doubtless, did little more than convey to the Tom Steel employees the message given him to pass on by Messrs French and Tulloch. Now, that certainly doesn't in any way accord with the limits that are imposed on protected action and those being action, basically:

PN15

Supporting or advancing claims made in respect of a proposed agreement.

PN16

Well, yes, that's there but the problem is that the parties involved are, yes:

PN17

An organisation of employees that is a negotiating party. A member of such an organisation who is employed by the employer.

PN18

Yes, but only because they were told to go and sit in the sheds by another party, and presumably stay in the sheds because they knew if they returned to work the rest of the job would stop:

PN19

Or an employee who was a negotiating party.

PN20

Well the employees were not and probably are still not fully aware of the reasons for the stoppages at three sites which continue today. All three jobs are stopped today and there is no indication when that will change. It is for that reason that the MBA has sought orders under section 127. In the event that you believe that the matter is not appropriately dealt with under section 127 then we will do it under section 170MW. There being an application to that effect before you.

PN21

The other issue of course is that of section 166A and if I may address you on that just briefly. All of the notices were lodged with you - or with the Commission - on Friday afternoon. Section 166A requires that you issue the required certificate after a period of 72 hours after the notice is lodged. It also, I submit - and I will be making more detailed submissions to you on this point - that while other proceedings on the matter are going on there is no inhibition to you issuing the required certificate be that within the 72 hours, after the 72 hours my submission is that you are obliged to issue the certificate.

PN22

I would submit that the basic case for issue of a certificate in this matter - and I shall develop it further in later submissions to you - involves other approaches made by the CFMEU to clients of Comsteel the thrust of which is to seek to have them severe their contracts with the company.

PN23

Now, Commissioner, it is clear that the company is in a situation where it is possible, probable, likely, whatever that it will sustain an economic loss. In which case I would suggest it would be appropriate for you to issue a certificate as sought under section 166A at least as soon as possible but certainly before the close of business today. I make that submission for the reasons I have already indicated. There is the prospect of economic loss. That prospect may well extend beyond the close of business today.

PN24

Could I turn now, Commissioner, to if you like the reason for seeking orders under section 127 and I am assuming here that you would make a finding that section 127 is the appropriate vehicle for this, rather than section 170MW for reasons that I have already indicated. Basically, if the union ever intended for its action to be protected within the terms of the Act then it has not succeeded.

PN25

Now, that mere fact in itself creates an interesting situation with section 170MW. Once you have established the fact that industrial action whether it be protected or unprotected is doing ahead. The action is there but it doesn't fall within the scope of protected action as defined by 170ML. Indeed, a significant part of it does fall within the ambit of section 170MM, and that is certainly the part that involves these considerations.

PN26

Firstly, no decision on the part of employees of Tom Steel Pty Ltd to stop work. Directions from union officials to sit in the sheds. Presumably on the assumption that if the Tom Steel Employees don't then everyone else will stop. Finally, the contacts which have taken place between the Union and clients of Tom Steel suggesting that those companies terminate the contracts that they have with Tom Steel.

PN27

Performance of contracts is a matter between the contracting parties. And in circumstances where one of those contracting parties is not the CFMEU then they do not have that right and I suggest that any involvement to that degree on the part of the CFMEU does offend section 170MM of the Act.

PN28

Can I turn now to the circumstances under which certainly Messrs Tulloch and French entered the site at Homebush Bay. In both cases the organisers concerned showed New South Wales Authorities. Mr French showed me a New South Wales authority, Mr Tulloch didn't.

PN29

THE COMMISSIONER: Showed you personally?

PN30

MR THOMAS: Mr French showed me, personally, a New South Wales - - -

PN31

THE COMMISSIONER: You were on the site, were you?

PN32

MR THOMAS: I was on the site. Mr Tulloch refused to show me his. Section 59 gives the following powers to authorise persons under the New South Wales Industrial Relations Act. Sorry section 81 that is of the New South Wales Act:

PN33

For the purpose of investigating any suspected breach of the Occupational Health and Safety legislation an authorised representative who enters premises under this division may do any of the following. (a) Make searches and ...(reads)... of employees working at those premises.

PN34

And finally:

PN35

Take copies of or extracts from any such documents.

PN36

Now, to the extent that the work methods statement was an issue on 31 October and 1 November at that site, I would suggest that it is clear that the officials concerned have exceeded their powers under the New South Wales Act. Remember that neither gave 24 hours notice for purposes of the Work Place Relations Act to transact the industrial business which they clearly did and which I will putting evidence to support in due course.

PN37

That is to allegedly investigate a wage claim. To actually ask employees of the company to complete wage claim forms and to suggest to employees of the company that their actions were to support the signing of an EBA. They were in breach of the Work Place Relations Act at that time. The same would apply at least in the case of the Australand site in Alexandria. There it was a work method statement not including a policy for work under hot and cold conditions. Now, that is hardly an issue of life or death on a building site.

PN38

Indeed, I would suggest that that can be best tested by looking at the sort of powers that are available to inspectors under the New South Wales Act where they actually stopped work. Section 93 of the New South Wales Act says:

PN39

If an inspector is of the opinion that at any place of work there is occurring or about to occur any activity which involves or will involve an immediate risk ...(reads)... presume to have control a prohibition notice.

PN40

Now, not only did Messrs French and Tulloch not have the power of inspectors but I would seriously question whether the circumstances that formed part of the pretext of stopping work were matters of life and death. Either real or expected in the reasonable expectation.

PN41

Now, the other pretext. Clearly the officials concerned were in breach firstly because they didn't give the required notice and secondly because they did not observe the terms of the EBA that applied to the company. The EBA says where there are issues work continues. Here we are in the Commission now and work isn't continuing. Still hasn't continued. The CFMEU is still in breach of their agreement with Tom Steel which Tom Steel, the present company, complies with as a successor to a previous company.

PN42

Now, it is in those circumstances, Commissioner, that the company comes to the Commission both to obtain orders under section 127 in the form proposed in our application and also to seek a certificate under section 166A because there is a very real possibility of economic loss as a result of the union's actions and it is accordingly appropriate that while the Commission deals with this matter there is no impediment under the Work Place Relations Act of the company seeking other redress if they believe it appropriate.

PN43

At this point I am quite happy to allow my colleague, Ms Mallia to address you. However, I have witnesses who subject to her remarks I am proposing to call to provide evidence of the submissions I've put to you so far and I will be reserving my right to make further remarks to you on the submissions I've made so far and their evidence after Ms Mallia's remarks to you. As the Commission pleases.

PN44

MS MALLIA: Firstly, in response to Mr Thomas, some of the factual matters I'm not in a position at this moment to respond to but I can give an overview of the union's position. Firstly, we'd say that there are very serious safety concerns that have been raised by the officials of the CFMEU on both of these sites as well as some other matters which have been brought to the attention of the principal contractors and we've also sought from the company to address.

PN45

I might first go to the Homebush site. I've had a very brief discussion with Mr French where concerns were raised about the fact that inductions of employees had taken place on that site. However, employees weren't aware of or had not been consulted of any safe work method and therefore there was real concern that the induction was not an appropriate induction. There are provisions in the Occupational Health and Safety Act 2000 and the corresponding regulations 2001 which require mandatory provisions, which require employers to consult with their employees with respect to safety on site. That appears not to have taken place and also to undertake risk assessment and risk analysis before activities take place. That does not appear to have occurred on site. My understanding from my brief discussion with Mr French that that was an issue.

PN46

The other issues which then became evident upon talking to employees on site was issues of cash in hand being paid on site, arrangements between this company and another company involving some swapping of employees. It is not entirely clear what was taking place on site. Some sort of loan hiring arrangements and there had been discussions as Mr Thomas has eluded to for the company to provide time and wage books as a result of those suspicions to the union to further address those issues but that has not as I understand it been forthcoming.

PN47

As far as work on that site. Currently my understanding is that work has not been undertaken because of a direction by Barclay Mowlem, it's not as a result of a direction by the CFMEU. We've raised legitimate concerns about the approach to safety by this employer as well as concerns about the payment of proper entitlement and conditions to the employees on site with the principal contractor. They ultimately may be held liable themselves under the New South Wales Act and quite appropriately those issues have been raised with the principal contractor, Barclay Mowlem on the Homebush site.

PN48

I have a bit more knowledge about the Alexandria site because Mr Cunningham and Mr Parker have been involved in that part of it. Mr Cunningham did attend the site, I think it was Friday but I could be wrong about the date, where he sought from the company representatives - I am not entirely sure if that was Tom Steel's or the delegate on site - a copy of the Safe Working Statement in relation to these employees. None was provided. Again, fresh issues and concerns were raised about the validity or the appropriateness of whatever safety inductions these employees had undertaken and again those requirements to ........ consult and also to undertake certain risk analyses are required and we would say they are very serious safety concerns.

PN49

The Act does not - Mr Thomas talks about the Act as if you need to have a life and death situation - well, the Act does not talk about life and death situation and we would say that there was certainly an imminent fear for health and safety on the site. Again, as Mr Cunningham was talking to employees on site, issues by three employees were raised with him about having received cash payments and a warning was given to Mr Cunningham that he should be careful because Tom Donnikan was involved on the site and indeed Tom Donnikan did in fact ring Mr Cunningham on the weekend as I understand it and a report is in the process of being made in relation to that to the police because we fear that is actually a threat to Mr Cunningham and his personal safety.

PN50

We want to resolve these issues with the company obviously but there are serious questions about what is going on on site with respect to occupational health and safety but also in relation to the payments that have been paid to employees. There was also concerns about the breach of the enterprise agreement and the use of casuals on site which I guess if we had the time and wages books we would be able to further investigate an address with both the principal contractor and the company.

PN51

The union denies any interference or the like that Mr Thomas has alleged with respect to the contractual relationship between this employer and Barclay Mowlem or Australand. My understanding in respect of the Australand site, that is the decision by the Australand management that this company not undertake any further work until these issues have been satisfactorily dealt with and certainly if there isn't work on that site it is not as a result of any direction by union officials.

PN52

That is about as much as I am in a position to tell you. Mr Parker can fill in some of those details as he has been involved in discussions with Australand and also with Barclay Mowlem at the highest level and Tom Steel and he would be best to respond to some of the details with respect to that. At this point in time we would have grave fears about safety on the site and also concerns about significant breaches of the enterprise agreement, relevant awards, also if people are paid cash there are issues in relation to tax that has been unpaid, rather serious issues and I understand that there are concerns raised about a previous entity that this company had previously been called something else and I'm trying to get some more details about that where similar concerns were also identified.

PN53

They are the issues that have been raised with both Tom Steel and with the relevant principal contractors and they are the issues that we would seek to be resolved. At this point we would submit that there is no industrial action which would give rise to section 127 orders and certainly nothing which would give rise to section 166A certificate because if work is not taking place I am told that that is as a result of the action taken by the principal contractors in trying to resolve these matters and not under direction or any other matter by the CFMEU.

PN54

THE COMMISSIONER: Mr Thomas says in his submissions that there were two meetings held - there was one meeting held with a further one scheduled for the 31st in regard to the claim for a new certified agreement. What role is that playing in these matters?

PN55

MS MALLIA: I might leave that for Mr Parker to answer, Commissioner.

PN56

MR PARKER: The meetings obviously that took place between the company and ourselves, there was a meeting scheduled for, I think it was the right date that Mr Thomas actually gave you, where the company did attend.

PN57

THE COMMISSIONER: 25 October?

PN58

MR PARKER: Yes, I'm pretty sure that was right. Unfortunately I don't have my diary notes here but I am reasonably confident that that was the date. There was some - those discussions took place with a number of other contractors who were part of that meeting as well. We then re-scheduled the meeting for the Friday of that week. What there was, there was some form of confusion because Mr Vega had originally called a meeting prior to the meeting that we were to have on the Friday. So obviously we were going through discussions with the company in the contents of the legislation that provides for that we negotiate the terms of the agreement.

PN59

The company failed to turn up on the following Friday so that's just to confirm that yes, there was a meeting with the company and they did attend on the first occasion but unfortunately on the second occasion they failed to attend.

PN60

In relation to - just a couple of - to clarify a few things, in relation to the issues, some of the issues related to the two Barclay Mowlem sites. I actually spoke to Mr Peter Slattery from Barclay's this morning. Mr Slattery indicated to me that they made a decision to - all cessation of work for Tom Steel for the time being because of the seriousness of the allegations related to a number of issues, one was that of cash in hand payments, that inadequate workers' compensation for the workers on these sites. They had a number of questions they wanted answered not just on those two issues but on a number of other issues which he said they wanted to look into.

PN61

So it was actually the company that suspended any work on their projects for that period fo time. I can certainly tell you in relation to Australand and the Alexandria site that initially when Mr Cunningham walked onto the site he had some concerns in relation to the way the men were performing their duties safety. He asked to be furnished with a copy of the Work Methods Statement. He was given that, not by the company but by the principal contractor being Australand. He obviously found it straight away looking at before asking for that documentation, seeing that the workers were working there because he got there for some time before he asked for that documentation, he was watching the workers work.

PN62

I asked - pointed out quite clearly that the safety work method statement was inadequate but then proceeded to ask the workers have they actually seen the safe work method statement and all the workers on that site who were employed by Tom Steel except for one indicated that none of them had actually seen the document before or read the document or been inducted through the process of the document.

PN63

The other thing was that at least last Saturday and also today the cessation of work has been because Australand has ordered the cessation of work until they find that their - they have made it quite clear to us that until they find the information that has been given to them about things of cash in hand, obviously threats of violence, it was very clear as Ms Mallia has said, the threats of violence - our official Mr Cunningham has received a death threat from - well, a threat from that well-known colourful racing identity Mr Tom Donnikan as well as the workers indicated prior to that on the Friday a worker actually indicated to Mr Cunningham personally that Tom Donnikan was involved within the company and that they fear for their safety.

PN64

We have a statement here if you would like us to tender it, Commissioner, it is not actually photocopied but it is a statement from Mr Cunningham that he's actually done up himself and signed from the events of the phone call that happened on the Saturday. I also have documentation here, Commissioner, which represents that the company signed off by the workers that the workers were being paid cash in hand. Obviously I would like to do it in the confidence of the Commission because of the fact that the individuals are being told that they fear for their safety by handing over this information, and additional information here from one other particular side as well.

PN65

So there is a lot of intimidation that is surrounding this issue as well. Certainly to my information given from the Barclay Mowlem sites, the information that has been given to me - not at any stage have we sought to use stop works without a means of using the line that is being put to you by Mr Thomas. Certainly on the site that I've been involved in, the only periods of stop work has been for workers to formally be given an opportunity to read the safe work method statements so they understand it. There have been serious safety breaches in that respect and obviously that we've also got the fact that workers have been stopped work at these periods of time, certainly going back to Saturday morning by the principal on the site, not by the union.

PN66

So we are quite willing, if you wish Commissioner, to sit down in conference and try to come to some reasonable settlement in all this, but obviously I say that some of the issues here about workers names and details I would like to keep them in confidence, because of the alleged threats that have been put upon them. So I might leave it at that. Thanks, Commissioner.

PN67

THE COMMISSIONER: Thank you. Mr Thomas?

PN68

MR THOMAS: Commissioner, could I preface my remarks by saying that while there may well be overlays in this matter of contractual issues between Tom Steel and its clients, the question that arises in my mind is well, why are these contractual impediments there and indeed does it have anything to do with the events last week that are the cause of the matters now before you. I think the resounding answer to that question is yes and yes. What you are hearing from Ms Mallia and Mr Parker is only no more than eloquent evidence of the fact that there has been interference in the contractual relations between Tom Steel and its clients and at least in the mind of the CFMEU that interference has now succeeded. The economic loss that I foreshadowed to you will now occur.

PN69

THE COMMISSIONER: And you say it's more than coincidence, do you?

PN70

MR THOMAS: I am suggesting it's more than coincidence, sir. I suggest it is absolutely more than coincidence and I don't think there is any room for you to draw any other conclusion.

PN71

I turn now to the remarks of Ms Mallia. We are not here saying that there is no safety concerns, there were indeed safety concerns on the site at Homebush Bay. They centred around firstly whether or not there was a work method statement on the job and then the level of detail that that work method statement covered. For example, had there been an inspector from Workcover on that job, I would submit to you most seriously, that it would not be a circumstance that would justify him using his powers to stop the job. So where does that put Mr French and Mr Tulloch, who don't have that power to start with and never have had.

PN72

Equally on the Australand job. The hot work policy. I am not here to demean Health and Safety legislation. Indeed the record of the industry is not a happy one and it deserves attention, but there are laws that must be followed and if the government of the State of New South Wales believe that there was justification to expand upon powers of authorised persons, then I'm sure they would. As far as the allegations that we now hear that it's all contractual, there is no industrial dispute, the company contests that. Indeed it contests it because in its view and in its understanding it was stopped this morning on three sites, not because of contractual problems, but because of industrial problems.

PN73

In any event, there is the linkage that I have indicated to you between the industrial and the contractual problems that certainly do point to a need for the redress that has been sought before you today. That is, the issue of a certificate and I suggest that Mr Parker's remarks to you only highlight the importance of the issue of the certificate forthwith and I would have to foreshadow also amending that to include other names on it that I have by oversight or lack of information omitted. I will provide you with those names shortly.

PN74

As far as the allegations of cash in hand payments and incorrect payments of casuals, the books were available at about 2.00 or 2.30 on Thursday afternoon. All that was required was some sort of indication from the union that while they had the company's books or a photocopy of them, that they were satisfied was the same document and the original document was there was well as the photocopy - all they had to do was cease the industrial action. And it was too hard - no, they didn't want to do that. The books weren't provided to the union for a very simple reason and that was that the MBA wasn't prepared to provide the CFMEU, on a plate, with more issues for them to monster the company while they were already under heavy pressure.

PN75

THE COMMISSIONER: That implies that there were irregularities then, does it?

PN76

MR THOMAS: No, it doesn't imply that there were irregularities at all. What I am suggesting is that for that to proceed it is at least reasonable to assume that the CFMEU too would comply with what is normal practice for the settlement of disputes. The company provides the union with the books, the union stops the industrial action. It's not radical thinking. That was what was sought on Thursday afternoon and Friday. For reasons known best to the CFMEU it wasn't acceptable. It wasn't acceptable to Mr French. It wasn't acceptable to Mr Fitzpatrick.

PN77

Now, as far as allegations are concerned of criminal involvement or involvement of prominent racing identities in Tom Steel or influence being brought to bear by prominent racing identities, I should indicate to you that from an early stage in this matter, the company itself has involved the office of the Interim Building Industry Task Force. The office of the Interim Task Force has been advised of developments as they occur and these allegations falling as they do within the general terms of reference of the Royal Commission, certainly represent issues appropriate for them to investigate. If the issues are then the company itself has brought the matter to the task force's attention. The task force can proceed to act on any information that Ms Mallia or Mr Parker or Mr Cunningham might care to give it but in the meantime we also need to come back to the industrial issue that is at the core of it.

PN78

It is my submission that you should proceed to issue orders as proposed in the application made under section 127A and that you should proceed to issue as a certificate as sought under section 166A pending further proceedings before the commission. Now at that juncture Commissioner I am now prepared to call a witness that will provide an understanding of the events leading to the stoppages and whatever you might like to characterise them now as, there certainly were stoppages on Thursday and Friday last week. In my submission they still are. I would like to call Mr John Christodoulou.

PN79

THE COMMISSIONER: Well before you do Mr Thomas, if I am mindful of my obligation under 166A at least in attempting to conciliate in this matter, in fact I am bound to, even if I wasn't bound to I would want to because I think, I am more concerned about resolving the underlying issue which have given rise to this bit rather than encouraging parties to proceed with litigation which sometimes misses the point. You have indicated yourself in your own words that, I think, pursuing the matter through 166A the next course is only option at this stage in any case and the commission would be very reluctant to issue orders if the company hasn't made a firm decision to exercise its rights to the limit.

PN80

However, even at this stage and without hearing the evidence, there are insufficient grounds for me to consider, certainly 127 orders. I am sure you are well aware of the authorities in that regard, the Coal v Allied and unlike contrary to the views of another division of the CFMEU this commission doesn't issue orders like confetti and it is a very serious matter to do so. So I think in all of the circumstances I would prefer to adjourn into conference and see if we can resolve the issues firstly. If not, well then the company's rights are preserved.

PN81

MR THOMAS: If that is your preference Commissioner I am happy to proceed in that way subject to any submissions that I might want to put to you at a later date, quite specifically on Coal v Allied. Also I will have submissions to put to you on the situation relating to section 166A particularly in relation to the expiry of 72 hours which will occur this afternoon.

PN82

THE COMMISSIONER: All right, thank you. I will adjourn into conference.

OFF THE RECORD

RESUMES [1.25pm]

PN83

THE COMMISSIONER: The Commission has had the opportunity to meet with the parties in private conference. Following those conferences the union wishes to place its position on record.

PN84

MS MALLIA: We have had a brief discussion and come up with some words in relation to what the CFMEU commits to applicants. It does leave one issue - well a couple of issues to an extent, I guess. In respect to the commitments that the CFMEU will make to the applicant, the CFMEU makes a commitment to the applicant in these proceedings being so far proceedings 5307 of 2002 and 5334 of 2002, I am not sure if I have got all the numbers though, that it will not and has not directed that work on the applicants' sites cease.

PN85

Secondly, the CFMEU makes a commitment not to disparage the applicants. Thirdly, the applicant is to provide. They are the issues that go to the CFMEUs conduct and I will let Mr Thomas confirm what the employer agreed to do but the applicant is to provide their time and wage records and to address any shortfall in wages and conditions identified. The applicant commits to the CFMEU that all methods of work are properly explained and consultation take place with employees as required by the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulations 2001. The applicant commits to meet all their requirements under the Occupational Health and Safety Act 2002 and the Occupational Health and Safety Regulations 2001 and that the applicant discontinue the proceedings.

PN86

That leaves the issue of the application that, as I understand, wasn't listed for today. That is the application for termination of the bargaining period. Mr Thomas has suggested that he wants to continue with that. So, I am not entirely sure what that will entail. I mean from our point of view we would like to wrap up all of the proceedings before you and I guess they have an opportunity to make those applications in the future should the need arise in any event. I guess that is a matter for him to address. Our preference would be just to deal with all of the applications thus far that relate to these circumstances as put before you and to finish those off today obviously leaving the parties their rights under the Act which exist in any event for the future. If the Commission please.

PN87

THE COMMISSIONER: Mr Thomas?

PN88

MR THOMAS: Commissioner, I had a brief discussion with Ms Mallia about the statement and I would have to say that it goes a significant way to overcoming the problems that we have. There are I suppose two areas; the first is that the CFMEU certainly makes a commitment to the applicant that it will not direct that work cease. We believe that from a point of view of fact has not is not correct that indeed there is evidence that they did direct that work cease which leads me to the other problem that we have in general terms. That is that this leaves Tom Steel in the position of going back to its clients and saying that it is now okay for us to go back to work, we got this arrangement with the CFMEU which I welcome and I am certainly not being unreasonably critical of it. What is missing is some sort of message, body language if you like, that the CFMEU is prepared to accept a resumption of work. Now, I don't think that is necessarily conveyed by these words.

PN89

The other problem that I have and Ms Mallia has referred in passing to the application under s170MW. I understand that that wasn't listed for hearing today and our preference would be to leave that application there to just so how things go in short. We are in doubt that we will be talking again shortly with the union again. The history of the two are closely entwined and we would like to keep the - if you like the corporate memory fresh. I suggested to Ms Mallia a couple of things that she might include in this statement, an indication that the CFMEU is prepared to accept Tom Steel going back on the job or indeed by some other means communicate that to Tom Steel's clients and significantly Barclay Mowlem Pty Limited and Australand Pty Limited.

PN90

In fairness to Ms Mallia and Ms Parker I believe that they are both cautious to do that which as I have indicated to you before still leaves Tom Steel in the position where they have been stopped. There has been communication between the CFMEU and the companies as to the standing of Tom Steel, allegations, call them what you will. Now, those allegations may be true, they be at least part constitute injurious falsehood. I don't know, nobody knows until we look at the books and I believe that, in those circumstances, the process that Ms Mallia has suggested so far tends to leave Tom Steel a little exposed contractually and I would like from these proceedings to have that issue addressed a little more.

PN91

MS MALLIA: Well, in response to that I mean these proceedings are principally about what the applicant complains is the conduct of the union. I believe our commitments to the applicant actually spells out commitments to the applicant that address those concerns. What the principal contractors may or may not do is not something that we can influence. I have said to Mr Thomas that once we get - and we have requested a transcript obviously where these commitments are recorded - that we could forward that to Barclay Mowlem and Australand but principally these proceedings are brought as a result of complaints that they make in relation to connate of the union which I think we have, without omission, addressed and which our commitments address.

PN92

However, if Mr Thomas wants us to give a copy of those details to Barclay Mowlem Australand I guess like they can we can fax them to the relevant principal contractors but no doubt the principal contractors and the applicant here will have continuing discussions about these issues. And then only in relation to the issue of the application for the termination of the bargaining period. My only concern with that, I am not entirely sure what the Act will say about this, I haven't had a close look at it, but if there is an application on foot and negotiations do take place then action takes place I am concerned that action might not be protected action under the Act. I just have a difficulty and I am not quite sure what the answer is in just that application sitting there for some unspecified period of time rather than it being dealt with either today or at some point in the very near future. I am not sure that it necessarily does impact on the other provisions of the Act but I would be a little bit concerned if at some point down the track negotiations have to take place or resume a relation to the EBA.

PN93

Certain actions might take place and whether that leaves employees or the union exposed in any way with respect to that. That may be something that Mr Thomas may be able to give further submissions to or further thought to in relation to dealing with that issue. I guess the principal thing for us is to continue the discussion with the applicants in relation to the wages and conditions of their employees, to have a look at the time and wage books and try and resolve those issues as quickly as possible.

PN94

MR THOMAS: Can I deal first with the 170MW issue, Commissioner. My understanding of that provision is that there having been a notice given of an intention to commence the bargaining period and a notice given of an intention to commence industrial action that there is a bargaining period in place and that any protected action that takes place in the course of that bargaining period, any action that purports to be protected must then comply with the provisions of the Act in that regard.

PN95

That would apply whether there was an application in place to cancel the bargaining period or not. So as far as I'm concerned - and my understanding of the provisions of the Act are these, that the mere fact that there's an application in place doesn't in any way inhibit the union taking protected action and it doesn't inhibit in any way the company attempting to bargain in good faith. The parties can conduct themselves as they wish, however any conduct on their part as in any instance is relevant in terms of the application to terminate the bargaining period.

PN96

I think it will be clearer from my submissions to you today that the horizon was a bit cloudy. There were EBA issues involved and there were other industrial issues involved, and there were occupational health & safety issues involved. Now, we're trying to get rid of the industrial issues. We've still got the bargaining period and negotiating an EBA. On the other question - - -

PN97

THE COMMISSIONER: Before you go to the other question, I wouldn't be particularly comfortable with just having a 170MW application sitting there open-ended, either the union is bargaining or it's not, either it's bargaining in good faith or it's not, or genuinely bargaining or trying to reach an agreement. I don't think that is the issue at the moment. I think the other issues have come to the fore.

PN98

MR THOMAS: For example, Commissioner, I can only think aloud. The company's attitude might be altered somewhat if they were not confronted with a proposition of here's the agreement, it's not negotiable, sign it up, or this is what we'll do with you.

PN99

THE COMMISSIONER: As you know it's not difficult to lodge an application. You've certainly demonstrated that you can do it pretty quickly and you can do it across a range of sections of the Act on this occasion.

PN100

MR THOMAS: I would love to be as confident, Commissioner, about negotiating with the CFMEU, an agreement that was fair to the company.

PN101

THE COMMISSIONER: Without pre-empting that though I haven't listed the 170 application.

PN102

MR THOMAS: And indeed we're not asking that it be listed at this juncture.

PN103

THE COMMISSIONER: Just the fact that it's there and it's not being acted upon I think is not really good conduct in terms of administrating the Commission.

PN104

MR THOMAS: Well Commissioner, I suppose that's probably an appropriate time for me to turn to my other problem which is a problem that emerges tomorrow when the company goes back to work and I suppose the logistics of making clear to the world the content of the CFMEUs undertaking that they've made on transcript and also making clear to Tom Steel's clients that indeed there is an arrangement in place that is acceptable to the CFMEU as a means for facilitating the resumption of their work.

PN105

Now, let me go back on my earlier remarks. It is clear from evidence that we were wishing to present and in fact it is on the record of these proceedings that there was an industrial stoppage. It might have got contractual after that but it was certainly industrial to start with. The stoppage didn't start by Australand confronting the company and saying we have serious doubts about our commercial liabilities if we permit you to work on the site. It started with an official of the CFMEU taking exception to a hot work policy.

PN106

What I am saying is as far as the problems that Australand and Barclay Mowlem now have with Tom Steel the CFMEU have played a role in forming the views that lead to those contractual problems. I think it eminently fair that they have a role in providing an assurance that the resumption of work has the CFMEUs imprimatur while the books are being looked at.

PN107

Now, I'm doing no more and no less here and trying to avoid a situation where we lost another day or more's work trying to convince a builder that they don't have a contractual problem with Tom Steel and I believe that an appropriate resolution in the circumstances. It doesn't need to detract from the first paragraph of the statement which says that they're without any admission; we're not asking them to admit to anything, we're asking them to get on the landline and convey whatever signals need to be conveyed to the effect that there has been an arrangement reached for a postponement of hostilities.

PN108

MS MALLIA: It's like the MBA at one point wants to have their cake and eat it too. I mean, on the one hand they complain that we, you know, necessarily interfere in the contractual relations between their member and its clients. On the other hand one has to take some active role in, you know, in discussing with the client the position of the CFMEU in relation to these proceedings, I mean. We're quite prepared to if asked by the principal contractors to reiterate the commitments that I've put on transcript on behalf of the union and that should be adequate for Mr Thomas and the member, the applicant in these proceedings, and should I think address the concerns that he has. We could also provide them with a copy of the transcript, I mean, as easily as Mr Thomas so his client can do the same so I don't really know what more they want us to do.

PN109

THE COMMISSIONER: Can I just suggest this, without awaiting the production of transcript even if I do ask for it to be produced urgently. Would you convey the outcome of your commitment that you've given a moment ago to both Australand and the relevant party in Barclay Mowlem.

PN110

MS MALLIA: I wouldn't have a problem with that, that would be fine.

PN111

THE COMMISSIONER: I'll still ask for the transcript to be produced urgently, at least an extract of this part, and hopefully things can return to normal.

PN112

MS MALLIA: Yes, Commissioner.

PN113

MR THOMAS: If Ms Mallia is prepared to convey that advice to Australand and Barclay Mowlem such that they can facilitate a resumption tomorrow and indeed that occurs I shall undertake to advise the Commission forthwith after that that these matters are withdrawn.

PN114

MS MALLIA: I can cc it to Mr Thomas if he likes.

PN115

MR THOMAS: I would appreciate that.

PN116

THE COMMISSIONER: Thank you. On that basis these proceedings will stand adjourned.

ADJOURNED INDEFINITELY [1.45pm]