C2002/897, Transcript of Proceedings [2002] AIRCTrans 477 (18 February 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2002/897

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Head Hunters
Queensland Pty Ltd and Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union
for an order to stop or prevent industrial action
at Bradken Industrial Site

BRISBANE

12.40 PM, THURSDAY, 31 JANUARY 2002

PN1

THE COMMISSIONER: Can I take appearances, please.

PN2

MR K. MASTERSON: Thank you, Commissioner. I am appearing on behalf of Head Hunters Queensland Proprietary Limited, and I have with me MR JOHN FREDERICKS, also of Head Hunters Queensland.

PN3

THE COMMISSIONER: Thank you.

PN4

MR E. MOORHEAD: Thank you, Commissioner. I appear for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. With me I have MR PETER SHOOTER.

PN5

THE COMMISSIONER: Thank you, Mr Moorhead. Mr Masterson, I've received your application. Do you wish to talk to that?

PN6

MR MASTERSON: Thank you, Commissioner. Commissioner, since our hearing conducted last Friday, 25 January, in the matter C2002/824, a meeting has been convened between the parties to commence negotiations on the matter of travelling allowance at the Bradken site. The bargaining period, Commissioner, as I understand it, regarding that matter was initiated on 17 January against Head Hunters Queensland. The first notification of industrial action on that matter was received on 15 January, and a further notice regarding intention to take industrial action was received on 24 January. I might just remind the Commission that a wildcat stoppage did occur on 24 January, and that all parties have agreed that that action was unprotected. The negotiations initiated on 30 January - yesterday - - -

PN7

THE COMMISSIONER: Mr Masterson, if I can just stop you there, that action that you're referring to was the one that there was a section 99 dispute in relation to.

PN8

MR MASTERSON: That's right.

PN9

THE COMMISSIONER: And that action, as I understand, was via mismanagement or misinterpretation, or whatever you want to call it, from the union, and didn't specifically relate to - well, what I'm assuming is the elements that are at the heart of this negotiation.

PN10

MR MASTERSON: That's true, Commissioner. That's the way I understand it.

PN11

THE COMMISSIONER: All right, thank you. I just wanted to be clarified on that - the 24th, that I was thinking of the same industrial action.

PN12

MR MASTERSON: It's our view, Commissioner - the reason I raise it is that it's part of an ongoing campaign to get the travelling allowance by a more covert nature, if you like. The negotiations initiated yesterday, Commissioner, were conducted, I believe, in a positive light. Head Hunters indicated - and I was at the meeting - that we were certainly prepared to commence negotiations with a view to seeking some resolution. We made the point at the meeting several times that if you go into any negotiations bloody minded, you can't expect there to be an outcome, and there always is a solution if all parties are prepared to discuss the matters in good faith.

PN13

We had quite a lengthy meeting with Mr Shooter, and at that meeting we tabled a negotiations paper, if you like, with some options that could be put to the membership or could be considered by representatives of the AMWU. We also made it very clear, Commissioner, that that was not our absolute position; we were prepared to discuss anything. We put several other possible solutions, ie forming an enterprise agreement with the AMWU, circumscribing that dispute to the current supply agreement; the possibility of getting round the table with Bradken Industrial.

PN14

And just to sum up the meeting, Commissioner, my view was that it was conducted in a very positive light. Certainly the door was left open, and we were advised that the document we had tabled would in fact be taken back to the membership at a report back meeting yesterday afternoon. I might table, Commissioner, for the sake of the record, the position paper that we put to the AMWU yesterday that was to be reported back to the meeting yesterday afternoon.

PN15

THE COMMISSIONER: Yes, thank you. Do you wish to tender that, Mr Masterson?

PN16

MR MASTERSON: Yes, I do.

PN17

THE COMMISSIONER: We'll mark that as exhibit 1.

EXHIBIT #1 CLAIM BY THE AMWU FOR TRAVELLING ALLOWANCE AT THE BRADKEN INDUSTRIAL SITE

PN18

MR MASTERSON: Commissioner, at that meeting yesterday we were advised of the report back meeting that was to be convened at 3.30 pm at the Bradken site. Mr Shooter advised us that the items of negotiation would be put to the meeting and the outcome would be fed back to Head Hunters and CES at the conclusion of the meeting. At no stage did we expect there to be a stoppage of work. We felt that it was the very first meeting; as I said, it was very positive, and we certainly expected that as an absolute minimum there would be some items that would come back for clarification, further negotiation or whatever.

PN19

At 5.15 yesterday we phoned Mr Shooter because we hadn't received any feedback from the meeting, and we requested some sort of feedback as to what had taken place and how the items had gone, and we were advised that the meeting had decided to go on strike from today, and there was absolutely no feedback forthcoming regarding the negotiation paper. No further meetings were requested either, so I guess it was our view yesterday that the whole process, if you like, of bargaining had been circumvented somewhat, because we had gone into the meeting in good faith. We had had some very positive discussions. We put some items on the table. We had said that we didn't see that we needed to be part of any collective response from the other labour hire companies; we were in the industry with a long-term view, and that we were keen to be seen by the AMWU and the industry as people who were straight shooters, that could make decisions and work within the industrial framework that was established. So we were quite surprised at the outcome.

PN20

It's our view that the industrial action will affect the commercial supply agreement between CES and Bradken and, in turn, Head Hunters and CES. There is no doubt in my mind that the uncertainty and unreliability of Head Hunters due to the ongoing wildcat action, and I see today's strike as another wildcat action, will affect the credibility of Head Hunters as a reliable supplier of personnel. There is no doubt, Commissioner, that the management of Bradken Industrial have grave concerns about the ability of Head Hunters to be an ongoing, reliable supplier of labour to their contracts. It's also our understanding, Commissioner, based on feedback that we've received from our employees that attended that meeting, that there was no feedback regarding matter 824 that we had last Friday, as directed by the Commission on transcript, and I quote the statement on transcript. It was that the outcome be discussed with members, and that there be no further discussions - sorry - and that there be further discussions with these members and the company prior to any further stop work occurring, and I don't believe that that has taken place.

PN21

Commissioner, we believe this union is not committed to the process of negotiation. They have demonstrated their preparedness to flout the process laid down in the Workplace Relations Act. It is for this reason that we seek the orders outlined, and we seek those in an attempt to resolve the matter in a conciliatory fashion and in accord with the legal processes laid down, and in particular without further wildcat stoppages. We entered this negotiation in a bona fide manner. The door remains open, Commissioner. We are prepared to negotiate in good faith with a view to some sort of resolution, but we see that it is becoming increasingly difficult to continue to supply Bradken Industrial and give them the assurances they need to satisfy their contracts. Thank you, Commissioner.

PN22

THE COMMISSIONER: Thank you. Mr Masterson, just before you finish, was it just your employees that undertook the stoppage?

PN23

MR MASTERSON: I'm not sure. I assume that - I think all employees took the stoppage; I'm not sure. But we only sought to seek advice on whether our employees were at work or not. Our employees are in fact on afternoon shift - we don't have any on day shift today - so it doesn't become an issue for us, if you like, until this afternoon - till afternoon shift at 3.30.

PN24

THE COMMISSIONER: Right. So no industrial action has been taken. It's been threatened to be taken this afternoon commencing at what time?

PN25

MR MASTERSON: I understand, Commissioner, that the industrial action was to take place from the start of shift this morning. It's just that we don't have any employees on day shift, so - and it - - -

PN26

THE COMMISSIONER: Your employees are on the afternoon shift, and they start at what time?

PN27

MR MASTERSON: At 3.30.

PN28

THE COMMISSIONER: And how many employees do you have on that - - -

PN29

MR MASTERSON: Only two remaining.

PN30

THE COMMISSIONER: And what indication do you have that they will take that action?

PN31

MR MASTERSON: Advice from the employees that we've sought this morning, and feedback from Mr Shooter yesterday when he was phoned by Col Glanford of CES that the members had voted to take strike action today.

PN32

THE COMMISSIONER: So your two employees have advised you that they intend to take action this afternoon.

PN33

MR MASTERSON: Yes, they have.

PN34

THE COMMISSIONER: And are they employees of Head Hunters, those two - - -

PN35

MR MASTERSON: Yes, they are.

PN36

THE COMMISSIONER: Right, thank you, Mr Masterson.

PN37

MR SHOOTER: Thank you, Commissioner. I'll let Mr Shooter deal with the issues of negotiations that have happened up until this point, Commissioner, but at the outset we'd like to say that we have not received an application from Head Hunters. All we've received is the notification from the Commission. We haven't received the application outlining why they believe our action is unprotected or why they believe that the orders that they seek should be given, and I have had trouble fathoming from Mr Masterson's submissions on what grounds they actually are seeking these orders. And as well, we haven't received a copy of any orders sought in relation to - - -

PN38

THE COMMISSIONER: All right. Mr Moorhead, what we might do is pass to you a copy of the application from Head Hunters at this point. It's only one page, and I might just allow you the opportunity, and Mr Shooter, to read that.

PN39

MR SHOOTER: Okay, thank you, Commissioner.

PN40

THE COMMISSIONER: Go ahead, Mr Moorhead.

PN41

MR MOORHEAD: Thank you, Commissioner. I might just go through the application that I have now seen a copy of. Firstly, in relation to the order sought by the company - by the employer in this case - the order sought is that there be - that strike action planned for 31 January 2002 be stopped until bargaining has completed. Commissioner, that's quite an unusual order to be sought in this Commission. The order is usually for a set period of time rather than until negotiations have completed because if that were the case parties may be able to continue to extend, negotiate - continue and extend negotiations in perpetuum with the operation of this section with the hope that there might be a slip-up and the action not be protected.

PN42

Commissioner, the first point there is that the notice of industrial action was made prior to any negotiations taking place. We refute that, Commissioner, on a number of grounds. Firstly, that there has been a number of conferences before you, Commissioner, that have discussed this issue and have negotiated - that have involved negotiations between the parties. As we have stated at previous conferences, negotiation prior to industrial action doesn't require a formal negotiation meeting as such. They can involve phone calls, they can involve assistance by the Commission in relation to the dispute or the negotiations of the certified agreement and we believe that those negotiations have occurred up until the time the notice of industrial action was given on 24 January and following that with negotiations yesterday.

PN43

At that meeting yesterday a negotiation paper was presented to the AMWU and I would just like to take you to that. I think it's exhibit 1, Commissioner. The first page outlines the employer's perspective of the claim by the union for the travel allowance and on the following page it provides a proposal and that proposal, Commissioner, is that they pay an allowance of $8 per day offset by a total reduction of $4.50 for administration fee for the collection of union dues, administration and postage fee for the running of pay-roll and charges associated with professional indemnity insurance. So already our members are down to $3.50. Then, on top of that - - -

PN44

THE COMMISSIONER: They could be ahead of what they were before though, Mr Moorhead, where nothing was being paid to them.

PN45

MR MOORHEAD: Yes, Commissioner. I was just going to the last point though where it talks about reduction in the overall award hourly rate. That talks about a dollar per hour per employee. That immediately takes off the $8 that they offered, so in essence what the employer had offered was a reduction in conditions on site. As well as that there is an accusation down the bottom that there are compulsory union dues at this site. Union membership and the deduction of union dues is not compulsory at this site and we have never asked that it be so and we are quite concerned that Mr Masterson - and, sorry, that Head Hunters would make an allegation against this union of breaches of the Freedom of Association provisions of the Act. We believe they are totally unfounded and we believe that is quite inflammatory in negotiations to put that forward.

PN46

And as Mr Shooter will put to you in a moment, that offer was taken to the employees at a meeting yesterday afternoon but as you would expect, Commissioner, an offer by an employer to reduce the conditions under which they are currently working wasn't seen in a favourable light. It was quite overwhelmingly rejected by all the labour hire employees but particularly the Head Hunters - the two Head Hunters' employees. Commissioner, we believe our action is - the industrial action being taken today - is a protected action. We have given - an initiation of bargaining period notice was served on the company after some initial confusion over who was the employer was resolved and that was done before you, Commissioner. That initiation of bargaining period was filed on 17 January. The following day the proposed industrial action for the Monday and Tuesday was withdrawn.

PN47

On 24 January there was a notice of industrial action sent to Mr Masterson informing him that this industrial action would be taken today, so we believe that there has been negotiation before this industrial action. We believe that our action is protected industrial action under the Workplace Relations Act and we believe that there is no illegitimacy to our industrial action that would support the issuing of an order under Section 127 of the Act. We believe that our actions have been taken as a negotiation tool in the making of this certified agreement because we have had trouble negotiating with the companies in question as you have been witness to, Commissioner, in the numerous conferences we have had before you where negotiations have been quite difficult due to underlying problems for the employment relationships at the site.

PN48

So we don't believe there is sufficient grounds for orders under Section 127 to be issued, but if the Commission were to issue those orders we would seek that they be limited in a number of ways. Firstly, we would seek that they be limited to a particular time-frame. We think that to define the operation of such an order to when bargaining has completed is quite an unusual order and is something that can be effected by the parties and we would hope that if an order was to be issued that it would be for a specific time-frame and we would submit an order should be limited to the subject of the dispute being the negotiation of a certified agreement. So on that ground we submit that there is no grounds to issue the orders. And now I would just like to ask Mr Shooter to address you on the issues of negotiation that have happened.

PN49

THE COMMISSIONER: All right. Mr Moorhead, I am also interested in the resolution that the employees took in relation to the industrial action, so is it appropriate for you or Mr Shooter to advise me about that?

PN50

MR MOORHEAD: If it pleases the Commission - - -

PN51

THE COMMISSIONER: In relation - - -

PN52

MR MOORHEAD: - - - I would prefer if Mr Shooter address you on that issue, of what the resolution of that meeting was, and what - and the outcome of that meeting.

PN53

THE COMMISSIONER: All right, thank you.

PN54

MR SHOOTER: Thank you, Commissioner. In relation to the opening submission by Mr Masterson, I concur with the bulk of his submission, Commissioner, however there are a couple of points that he made that are factually incorrect. The point that he made that I had not complied with the direction, or a request from the Commission to report back properly to a meeting of members, is absolutely incorrect. I reported back at yesterday's meeting in depth in relation to matters before the Commission; all of the matters before the Commission last week. In relation to the negotiations that I had with Mr Masterson and Mr Glanford from Consultative Employees Services yesterday, I reported in depth on those discussions as well, and I read out the counter proposal that Mr Masterson on behalf of Head Hunters gave to me yesterday, and the counter offer was rejected.

PN55

Now, in relation to resolutions that have been carried leading up to industrial action that has commenced today, Commissioner, the substantive resolution was carried prior to the issuing of the 72 hours notice on the 24th, and the resolution of that meeting was that I was to arrange for the union office to serve that notice but continue to talk to the direct employers, that is the group of six labour hire companies, to endeavour to obtain resolution, and if no resolution was forthcoming by yesterday then the protected action that we had applied for would come into force.

PN56

Now, at yesterday's meeting, as I said, I reported back on both Commission hearings and discussions that I have had individually with labour hire companies to the members, and the view of the members was that I had in fact not been able to meet their requirements. In fact, apart from this offer, which is potentially a negative offer from one particular company, I had no counter offer from any of the companies, and on the basis of that the members said, "Well, our resolution of last week stands," and they are commencing protected industrial action today, Commissioner.

PN57

THE COMMISSIONER: So who was the - have you met with the other labour hire companies as well?

PN58

MR SHOOTER: I haven't met with them face-to-face, but I have spoken to all of them, Commissioner.

PN59

THE COMMISSIONER: And who - the employees that have taken industrial action, or impending industrial action, and those that you met with, were they all employees of the labour hire company, or just Head Hunters?

PN60

MR SHOOTER: All employees of the labour hire companies, Commissioner. I've been meeting with them consistently off-site as a collective group of employees employed by the six companies.

PN61

THE COMMISSIONER: Because as of last Friday I don't think you'd met with them at all, had you?

PN62

MR SHOOTER: Met with?

PN63

THE COMMISSIONER: Met with these labour hire company employees over this particular issue, when we had the dispute before the long weekend. There was to be a meeting that was organised and for unknown reasons those employees didn't show at that particular meeting.

PN64

MR SHOOTER: Yes. Commissioner, I have been talking to labour hire people on that site since last - about this issue. There have been meetings starting in late November last year, and I've been on-site several times this year. So, you know, there has been regular and on-going discussion about this issue with this group of employees.

PN65

THE COMMISSIONER: All right. In relation to the issues that were - that I directed upon last Friday, has there been a meeting with Bradken in relation to the stoppage that involved Head Hunter employees - - -

PN66

MR SHOOTER: Yes, Commissioner.

PN67

THE COMMISSIONER: - - - and the misinterpretation there?

PN68

MR SHOOTER: Yes. Commissioner, I endeavoured to phone Trevor Hines, the general manager, on - Monday was a public holiday - Tuesday morning, and couldn't locate him. I then faxed him a letter, and I've given a copy to Mr Masterson, and I attached to my fax to Mr Hines the transcript that contained my commitment to both Head Hunters and to the Commission. I have subsequently spoken to Mr Hines. He got back to me in fact late on Monday, and I reiterated to him the statement that I had made - that I had agreed to make, and made before the Commission.

PN69

THE COMMISSIONER: All right. And there was a commitment that there be this further meeting, which is, as I understand, this one that you've undertaken with Mr Masterson from Head Hunters? Do you have a commitment that - - -

PN70

MR SHOOTER: Commissioner, you may recall at our Commission hearing on Thursday, during the recess I thought, and you thought that we had agreement that I would meet with Mr Masterson, Head Hunters, and their employees, and there was some discussion. At one stage Mr Masterson's preferred position was that we did that with the assistance of the Commission, and I was happy to do it either with the assistance of the Commission or without, and then during the recess Head Hunters informed me that they didn't want to proceed with that meeting. Now, you know, there can be no suggestion that I or the union haven't been very open to meeting with the employers and the employees to explore any avenues of this matter. I have been - - -

PN71

THE COMMISSIONER: I thought this meeting, Mr Shooter, was the one that resulted - that occurred as a result of that direction, that there has been a meeting now that Mr Masterson - - -

PN72

MR SHOOTER: There has been a meeting.

PN73

THE COMMISSIONER: Yes.

PN74

MR SHOOTER: There has been a meeting. I organised the meeting, and it happened in our office on Wednesday morning.

PN75

THE COMMISSIONER: And that's where this communication - - -

PN76

MR SHOOTER: That was the meeting not including their employees. Right? I agreed in our - when we were off record to meet with the employees, but the employer - - -

PN77

THE COMMISSIONER: Yes. And I think at the end - - -

PN78

MR SHOOTER: - - - elected to not include the employees. Now, I have no control over that.

PN79

THE COMMISSIONER: Well, that was their prerogative. I think at the end I left it to the parties to organise how they wanted that meeting to occur and who they wanted to be at that meeting.

PN80

MR SHOOTER: And the meeting has occurred, Commissioner, and it was reported on by Mr Masterson and, you know, with the exception of - well, no, his report of that meeting, I concur with what he has said in relation to that meeting. But his offer, in the short term, that's contained in the document that has been submitted, is clearly an unacceptable offer. Now, it could be that it is, you know, tabled as a starting point, but we are well and truly into this dispute now, Commissioner, and our members were not prepared to countenance that offer.

PN81

THE COMMISSIONER: But there are some options that you could have, just as Mr Masterson indicated, that it was - at the commencement it was the result of the first meeting. I understand the nature of your industrial action and what protections you have in place, and I'll ask Mr Masterson to comment on that, but in terms of achieving your outcome do you not acknowledge that there was some outcomes that were available to you other than industrial action, given that you had just been in the Commission the Friday before, where this company had warn industrial action through no fault of their own?

PN82

MR SHOOTER: Commissioner, there are still possibilities for positive outcomes by way of discussion with not only this company, with other companies. I mean, there are other discussions that I have had with other companies that cause me to believe that there is some potential into the future. What we are dealing with in this issue is the situation at the moment. Our members on-site at the moment are seeking, not an outcome that might apply theoretically in the event of new contracts being let on site; they are seeking an outcome in relation to the contract that exists at the moment. The - - -

PN83

THE COMMISSIONER: So just refresh my memory, these employees, were these employees receiving the travelling allowance before, these two employees of Head Hunters?

PN84

MR SHOOTER: I personally don't know whether they have or whether they haven't. If they had worked for other labour hire companies previously and been on site, they would have been. Whether these two individual ones have been in that position or not, I don't know, Commissioner.

PN85

THE COMMISSIONER: Well, in terms of the impending industrial action, what is the nature of that in relation to the Head Hunter employees?

PN86

MR SHOOTER: There is a 24 hour notice - notifies - a 24 hour stoppage starting this morning and - - -

PN87

THE COMMISSIONER: That was served on the employer, the notice, was it?

PN88

MR SHOOTER: Yes, yes, with - depending upon how the matter progresses, there could be subsequent action, Commissioner.

PN89

THE COMMISSIONER: So those two employees, as Mr Masterson said, would be starting the afternoon shift?

PN90

MR SHOOTER: That's right, Commissioner, that's my understanding.

PN91

THE COMMISSIONER: And do you intend to go back to Head Hunters with an alternative proposition, or seek an alternative meeting now that they have at least come to the party and met with you and indicated I think some freedom, certainly, to negotiate this particular issue?

PN92

MR SHOOTER: Commissioner, I am always available to have discussions with the labour hire companies, including Head Hunters, in relation to this issue. The direction that I have from my members is reasonably clear. The direction that I have is that I am to seek the restoration of the $16 a week travelling allowance, but clearly I am very happy to continue the discussions that we had yesterday that could lead to some longer term resolution of the problem. I have a short-term problem and a long-term problem. At the moment, this issue is dealing with the immediate problem, Commissioner.

PN93

THE COMMISSIONER: I think both parties have a short-term problem and a long-term problem, don't you?

PN94

MR SHOOTER: Well, I am pleased that the employers are now acknowledging that they have a long-term problem. I mean, in my early negotiations with representatives of the companies, I could not get discussion about the long term. All that I could get was the rejection of the short term.

PN95

THE COMMISSIONER: All right. Mr Masterson, did you wish to respond to any of that?

PN96

MR MASTERSON: Yes, sure, thank you.

PN97

THE COMMISSIONER: Thank you, Mr Shooter.

PN98

MR MASTERSON: Thank you, Commissioner. Commissioner, just in respect to Mr Moorhead's submissions regarding the negotiation paper being presented, and it being somewhat less than the employment conditions currently on site, if that is the way it was communicated to members of the AMWU, Commissioner, it put to you that it was, in fact, grossly misrepresented. As I said, the negotiations were conducted in a very positive fashion. It was made very clear that they were options, and there were many other options discussed that are not on that bit of paper, including forming an enterprise agreement, getting Bradken to the table, and many other scenarios. It was quite a lengthy meeting.

PN99

Two important paragraphs that precede the offer on that second page - or on the first page of the document - and can I just take you, Commissioner, to the last two points on page 1 of exhibit 1, where I've talked about how the agreement with Bradken is clearly a very strict commercial arrangement that resolved the tender process. It is our view that it is unlikely that we will be able to seek any increase in charge rates to cover any increased costs, and, as with all commercial arrangements in a competitive environment, the margins are small and designed to compensate for the costs identified during the quotation phase.

PN100

It is for this reason that any additional payment required of Head Hunters be of an absolute minimum, or be offset by other cost reductions, clearly trying to put some options on the table here to go forward. Also said in the last paragraph that it has recognised that in the event of a new tender process, that Head Hunters would be aware of the matter of travelling allowance, so some recognition there that clearly there is a customary practice that may need to be discussed, and we would be better positioned to consider this matter at the quotation phase; either resolve the matter with the union for the long-term - and Bradken, or make that commercial decision to step away from the business.

PN101

Head Hunters is proposing that this agreement be one that is circumscribed. In other words, be prepared to draw a line around this thing, and all future supply agreements or tender processes will be conducted on a no-disadvantage basis. I mean, it was a very conciliatory, very positive, here are some options - I even said to Mr Shooter as we were discussing items on the back page, that I understand from the union perspective that some of those may be regarded as inflammatory. Please don't see it as an absolute. Please accept this as, you know, us trying to put something on the table to get things moving. So we did see it, as the very first meeting, a very positive meeting, and one that we clearly felt that we could forward from.

PN102

I am extremely disappointed if that was put to the membership, even with the view to getting a vote. Mr Shooter said the counter offer, if you like, was rejected. Well, I've been a union official, and I know what that means. This was clearly not a document that was to be tabled as a negotiation or an agreed position of the parties. It was a commencing initiation, if you like, of the bargaining period.

PN103

I also take issue with the comment about on-going negotiations. There has been no negotiations, and I've said that constantly, with Head Hunters or with Consultative Employee Services, and, Commissioner, I challenge the AMWU to provide documentary evidence of those meetings, either by way of agendas, notes that have been taken, diary notations, or something to demonstrate there has been negotiations, because there clearly has not been.

PN104

I believe that if the AMWU can satisfy this Commission there has been negotiations on this matter, it makes a mockery of the intent of that provision in the Act, and my understanding of that provision is that it should be bargaining in good faith, and clearly, there has not been any bargaining in good faith take place.

PN105

A couple of the other matters that I think I need to talk to is the meeting that occurred yesterday. Mr Shooter said that in our previous hearing last Friday, that I indicated that I did not require a meeting. That is clearly not the case, as can be evidenced from the transcript, where I clearly said that we would discuss the matter, if you like, or the reasons that Head Hunters took the course it did with its employees individually, which we've done, but we remained very keen and prepared to negotiate the matter and commence negotiations, if you like. We made it very clear that it was our view, and, in fact, it was said on transcript by Mr Shooter that there had been no negotiations with Head Hunters till that point, and the final point made was that the meeting was organised by Mr Shooter. That is, in fact, not the case.

PN106

At the conclusion of the hearing last Friday, Commissioner, where you encouraged the parties to negotiate on the matter, we had a discussion, a mutual discussion, immediately after the conference where the time and date of yesterday at 9 o'clock was set, and there has been no negotiations, no discussions, no confirmation of that meeting time with Mr Shooter in the interim. So I see it as - I mean, it may be just semantics, but there was no initiative taken, if you like, by Mr Shooter or the AMWU to organise that meeting; it was a mutual decision to do that.

PN107

And finally, on the matter of whether the bargaining period, in fact, was initiated correctly, whether the intention to take industrial action was done in the appropriate time frame: one on the 17th lodged against the wrong company, another on the 24th, I simply make the point, Commissioner, that - I don't want to get into a technical argument about whether that was, in fact, done correctly or not. My only point is that it certainly wasn't done in the spirit of negotiations with a view to resolving the matter. If you look at the date those notices were issued, the intention to take industrial action on 24th, immediately a day after a hearing, where we tried to conciliate and move this matter forward, and immediately before the Commission hearing last Friday, so, to me, the point I'm trying to make here is that there has been absolutely no attempt to resolve this matter.

PN108

There has been, I believe, a bloody-minded attitude that industrial action is going to be taken. I understand Mr Shooter's difficulty. I really do, and we had a good discussion about that yesterday. Again, I reiterate that we are committed to being a supplier to Bradken Industrial. We may well lose the war on this one. We're down to two employees so if we don't resolve this shortly we may have no employees and I won't be back before the Commission again but we are committed to being the supplier in this industry for the long term; we're committed to operating within the industrial framework that exists and being seen as a credible operator that understands the score, if you like - or the lay of the land and I've spent a lot of time in the Commission; I've spent a lot of time negotiating matters and as I said, if this one has been - if this has been a negotiation consistent with the intent of the Act, I'm sorry but I'd very disappointed with the intent of that Act if that's the case.

PN109

THE COMMISSIONER: Mr Masterson, I think, when you were previously before me, you had three employees on that shift, didn't you?

PN110

MR MASTERSON: Yes. Commissioner, at the start of this dispute, we had - I'd have to check exactly but - - -

PN111

THE COMMISSIONER: Five or six.

PN112

MR MASTERSON: - - - it was either six or seven employees.

PN113

THE COMMISSIONER: Yes.

PN114

MR MASTERSON: And as the days have rolled on, Bradken have made it very clear to us and the other labour hire companies, I understand, that they see, because of this on-going industrial campaign, the supply of people through labour hire as a threat to their contract to build the wagons. For that reason, I understand, from advice from Mr Shooter yesterday, they are negotiating with other labour hire companies now that are not part of this dispute. They have also placed advertisements for employees themselves and I understand that, of the - Mr Shooter could correct me and tell you the exact number - but of the some 30 or 40 or so labour hire people that are on site, they have in fact confirmed employment or rollover, if you like, premature to the 10-week agreed period of some 13 or so people. So clearly, they are diminishing the labour pool through labour hire and making other arrangements.

PN115

THE COMMISSIONER: What I would say in relation to - I do intend to go off the record and have some discussions with the parties because this matter obviously does have some history now and I wish to speak with the union and the employer in relation to the directions that are provided and talk through the actions that occurred as a result of that particular hearing and I think the best forum to do that would be in conference. In relation to the application for a section 127 order that is before me, it is clear, in relation to section 170MT, entitled Immunity Provisions, that an order under section 127, an order made by the Commission under this section, does not apply to protected action.

PN116

So unless it can be proven that there is some technical deficiency in relation to the notification of the particular bargaining period or its application, I am prevented, in terms of the provisions, from providing orders in relation to section 127. There are, of course, other provisions that relate to the suspension of a bargaining period under section 170MW but they of course are different applications and specifically again relate to the issues under that particular section in relation to bargaining and the matters that both parties would be aware of there.

PN117

At this stage, that would be all I would say in relation to that particular order but I will have discussions with both parties in relation to the matters because we have had discussions off-record and I think there would be some - certainly in the interests of this dispute - to have some further discussion at this time. So I'd cease record taking there.

OFF THE RECORD [1.25pm]

RESUMED [2.33pm]

PN118

THE COMMISSIONER: I would indicate for the record that the parties have had discussions in conference and that both parties have indicated, again before the Commission, their parameters that restrict them in fully dealing with the matters before them in this dispute. I would place on record that I believe that Head Hunters, particularly, significantly made some progress in endeavouring to put an offer on the table in terms of exhibit 1 and whilst it does not, in any way, meet the satisfaction of the AMWU, I view it as the first step in undertaking an appropriate bargaining process and I would expect that, before this matter, if it needed to come back before the Commission - there be a continuation of the bargaining process and appropriate reporting-back, particularly to the Head Hunters employees if there are unique circumstances that arise from the union's negotiations with Head Hunters.

PN119

I know that the company is concerned about further industrial action and the impact that that may have upon the permanent supply of labour to this site and I know that they are interested in having negotiations in an open way with the union. I do not, in making those comments, place criticism of the union in relation to their exercising of their options that they have in this particular dispute but it certainly would assist the Commission in the options that are available to it and the options that certainly some of the parties have raised during the conference proceedings that they may call upon the Commission to assist with.

PN120

If there is an exhaustion of the steps in terms of appropriate bargaining and discussion of the elements, it would assist the parties, now that this dispute has gathered some history, if it came back before the Commission. So I would hope that the parties can, as a result of the further discussions today, meet in an appropriate way in the oncoming days.

ADJOURNED INDEFINITELY [2.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 CLAIM BY THE AMWU FOR TRAVELLING ALLOWANCE AT THE BRADKEN INDUSTRIAL SITE PN18