C2002/5996, Transcript of Proceedings [2002] AIRCTrans 5181 (20 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2002/5996

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by Thiess
Pty Ltd for orders in respect to the Calciner
Construction Project at Gladstone

BRISBANE

11.35 AM, MONDAY, 9 DECEMBER 2002

PN1

MR G. ARNOLD: I appear for Thiess Proprietary Limited, Commissioner.

PN2

MR B. SWAN: I appear for the Australian Workers Union and with me is MR F. CHAMBERS.

PN3

MR E. MOORHEAD: I appear on behalf of the AMWU.

PN4

THE COMMISSIONER: Thanks, Mr Moorhead. Yes, Mr Arnold?

PN5

MR ARNOLD: Commissioner, the issue before you is a section 127 for industrial action that is taking place as we speak at the Thiess QAL Calciner construction project in Gladstone. Thiess is responsible for the Calciner construction project in Gladstone. The Calciner project has a certified agreement which governs the terms and conditions of employment at the project. The certified agreement was certified before the Commission on 30.11.2001 and commenced operation on that day. The nominal expiry date for that agreement is 29.11.2004. I think you should have a copy of that agreement up there, Commissioner. I've tendered it.

PN6

THE COMMISSIONER: Yes, thank you.

PN7

MR ARNOLD: Pursuant to section 127 of the Workplace Relations Act, the AIRC has power to stop or prevent industrial action where the requirements of the Workplace Relations Act have been met. The withdrawal of labour constitutes industrial action under section 4 of the Workplace Relations Act. Industrial action is still occurring and it looks like it will continue in to the future as at this point it's for an undefined period. The employees have withdrawn their labour, although they have stated that they will return in the morning to assess the situation in regard to potable water but they will go again if - - -

PN8

THE COMMISSIONER: Portable water, did you say?

PN9

MR ARNOLD: Potable water, Commissioner.

PN10

THE COMMISSIONER: Potable.

PN11

MR ARNOLD: Yes. But if that potable water is not flowing, for want of a better word, they will go again in the morning. The industrial action relates to work that is regulated by the certified agreement, and the certified agreement has not yet reached its nominal expiry date. Accordingly, the Commission has jurisdiction to make the order. Commissioner, before you also there should be an affidavit from our project manager up on site, Mr Brad Fackender.

PN12

THE COMMISSIONER: Yes, thank you.

PN13

MR ARNOLD: And due to the early hearing that I thank the Commission for, Mr Fackender is available via phone up on the project and I would call Mr Fackender as a witness to give a chronology of events in relation to the incident.

PN14

THE COMMISSIONER: Just before we do that, we might just establish what exactly the problem is. What is the problem with the potable water?

PN15

MR ARNOLD: Commissioner, over the weekend another contractor not on our site apparently dug up the potable water line that provides water to the project. When the employees arrived at work this morning, there is no potable water in terms of drinking water available via the taps. The employees had a stop work meeting this morning about it. Our people on site had a contingency plan in place to provide bottled water, ice and also to bring in a water truck to provide water for washing of hands and things like that. The employees weren't happy with that outcome. It was the only one that we could provide.

PN16

THE COMMISSIONER: Why weren't they happy with it?

PN17

MR ARNOLD: I'm not too sure, Commissioner. All they stated was that if the water wasn't flowing they were going. In the period, too, that they were having their stop work meeting which was approximately an hour and a half to two hours, we advised the employees that they wouldn't be paid for that time because it was, in effect, a stop work. Also spoke to the local AWU organiser. It was his recommendation that the employees return to work. They were unhappy at the fact that we weren't paying them for the stop work and also unhappy with the fact that there was no water flowing in the taps. As a result of that - - -

PN18

THE COMMISSIONER: Is the water affected to their cribs as well?

PN19

MR ARNOLD: Sorry, Commissioner?

PN20

THE COMMISSIONER: Water supply affected to the crib huts as well, is it?

PN21

MR ARNOLD: Yes, Commissioner.

PN22

THE COMMISSIONER: So what were you going to do about providing water for there?

PN23

MR ARNOLD: There was ice, bottled water and also we were going to put a truck - a water truck in adjacent to the crib rooms so that they could use water for washing their hands and things like that.

PN24

THE COMMISSIONER: So there is no suggestion that people would be required to work in Gladstone - which would be pretty warm, I would have thought these days - without adequate water to either drink or wash their hands or whatever?

PN25

MR ARNOLD: No question whatever, Commissioner. We did everything that was available to us to provide water because we are aware that it is a bit warm up in Gladstone at the moment. So they had water for drinking; they had water for their cribs; and they also had water available to wash their hands, wash their face, whatever. Within the time that was available to us, the contingency we had addressed the issue of providing water.

PN26

THE COMMISSIONER: And when is it expected the line is going to be fixed up?

PN27

MR ARNOLD: We spoke to the - it's essentially an issue that is out of our hands - out of the project - - -

PN28

THE COMMISSIONER: Yes, I understand that. But, presumably, the contractor that dug it up would get it fixed quickly.

PN29

MR ARNOLD: We spoke to the Gladstone Council this morning. They said that it would probably be on by lunch-time tomorrow but there is no guarantee of that. That is one of the issues. As I say, Commissioner, the guys said they would return to work tomorrow but if it wasn't on they would be going again. We can't say that it's going to be on because it's something that is totally out of our hands.

PN30

THE COMMISSIONER: Yes, thank you. Yes, Mr Swan?

PN31

MR SWAN: Commissioner, at the very outset can I say that given the urgency with which this matter has been brought on, I haven't been able to obtain adequate instructions at this point in terms of the exact detail of what is or is not going on on site? I do have some instructions. Can I just say that as a point of note, the supposed affidavit of Mr Fackender makes nil reference to this apparent provision of a water truck for the use of employees in washing their hands and so forth? That may or may not be a point that we can expand upon if we need to speak with Mr Fackender or cross-examine him but - - -

PN32

THE COMMISSIONER: I appreciate you haven't had much time, but I think the fifth dot point - - -

PN33

MR SWAN: My apologies. Yes, it does; I've just noticed that, Commissioner.

PN34

THE COMMISSIONER: No, I do appreciate it has been a tight timeframe.

PN35

MR SWAN: Yes.

PN36

THE COMMISSIONER: I might confer with the parties, I think, in conference. Would that not be - - -

PN37

MR SWAN: I was going to suggest that. In the normal course of these sort of proceedings, I think the Commission is of a view that it would be more beneficial to convene in to conference, Commissioner.

PN38

THE COMMISSIONER: A practical problem has been created; the lines have been dug up. The employees have still got to have water to drink and wash their hands and things like that. As long as they're provided with that and that nothing changes, other than the fact that, obviously, it may not be quite as convenient - but other than perhaps some minor convenience factors, as long as the supply factor is there, really I'm not quite sure why we'd have a major problem.

PN39

MR SWAN: The only other thing I would put on record, Commissioner, is as I'm instructed by Mr Chambers, he has spoken to the AWU delegate or, at least, a member on site who is in a position to know what is or what is not the situation. And, as I understand it, the provision of bottled water will only satisfy about half of the numbers of employees that are actually working. So there is not enough to go around for everyone. If that is the case, then that is a serious issue.

PN40

THE COMMISSIONER: Well, that's an issue we'll certainly address in conference. As I say, obviously there has got to be enough water for the employees to drink or use for amenities. Assuming we can sort that out, have you any objection to a conference, Mr Moorhead?

PN41

MR MOORHEAD: No, Commissioner.

PN42

THE COMMISSIONER: We'll see if we can try and fix this practical problem. If not, we'll have to go back on the record. We'll adjourn for a short time.

SHORT ADJOURNMENT [11.45am]

RESUMED [12.32pm]

PN43

THE COMMISSIONER: Yes, gentlemen.

PN44

MR ARNOLD: Commissioner, we haven't been able to reach a negotiated position on the issue. The union representatives here today have come up with nothing that gives us any comfort nor any guarantee that there will be a resumption of work for tonight's night shift commencing at 5 o'clock. We've also been advised via our people on site that the subcontractors who were working have now joined the stoppage and have left the site; so it would appear that the issue is in fact widening.

PN45

Tonight on our night shift - we need that night shift, we're time critical at the moment - that night shift involves 15 Thiess employees and 50 subcontractors. So if our people aren't there, the subcontractors have said that they won't be attending for work either, Commissioner; and as a result, we are seeking the orders sought.

PN46

THE COMMISSIONER: Yes. Do you intend calling Mr Fackender then?

PN47

MR SWAN: Commissioner, it may assist, we don't require to undertake cross-examination.

PN48

THE COMMISSIONER: Thanks, Mr Swan. Yes, Mr Moorhead?

PN49

MR MOORHEAD: Nor do we, Commissioner.

PN50

THE COMMISSIONER: No. Yes, thank you.

PN51

MR ARNOLD: Yes, that's fine, Commissioner.

PN52

THE COMMISSIONER: Do you wish to tender the affidavit then?

PN53

MR ARNOLD: Yes, Commissioner. Thank you.

PN54

THE COMMISSIONER: Yes, we'll mark that exhibit T1.

EXHIBIT #T1 AFFIDAVIT OF MR B. FACKENDER

PN55

THE COMMISSIONER: Yes, Mr Swan?

PN56

MR SWAN: Commissioner, I won't retrace some of the brief submissions that I made prior to the adjournment into conference. Suffice it to say, that the issues surrounding the supply of water at site s something that is very serious. It does fall within the parameters of the sort of issues that could give rise to lawful industrial action which is the exception to the definition at section 4 of the Workplace Relations Act. We say that there are reasonable apprehensions of imminent risk or harm to safety.

PN57

And we make that submission on the basis that as we understand it, and as we have been advised, there is a genuine concern on behalf of members of the Australian Workers Union that there is not enough of the supply of water for each of the employees that are working for the project, as I'm informed there are in the vicinity of a hundred employees that are engaged in this particular stoppage which we again say is a lawful stoppage within the meaning of the Workplace Relations Act. Commissioner, as is the - I guess the norm in these sorts of situations, the Australian Workers Union is of the belief that it would be more preferable for the Commission to wish away a very clear recommendation to members of the Australian Workers Union, and for that matter the AMWU, to return to work.

PN58

Bearing in mind that the, as we are presently advised, the situation may

PN59

be resolved by mid-morning tomorrow when the Gladstone City Council has an opportunity to reconnect water supply that was disrupted over the weekend. But if the Commission of a mind not to issue a recommendation, but rather to accept the submissions of Thiess, and to order under section 127 of the Workplace Relations Act, a return to work by the employees then I do wish to make some submissions on the application that is before you seeking those orders. Firstly, Commissioner, if I can take you to the following provisions in the draft order?

PN60

If you go to 3A under the heading of, Industrial Action to Stop, you will note, Commissioner, that the breadth of the order relates to the interpretation or application of the agreement. That specific phraseology is referenced at 3B, 3D and 3E to the draft order. Can I just say this, Commissioner, the dispute before you does not relate to a divergence of opinion as to the interpretation or application of the certified agreement. It would appear that the scope of the draft order manifestly exceeds that which an appropriate order of the Commission, if it was to be made, could resolve the actual issue in dispute which, as I've indicated, does not involve an interpretation or a dispute about the application of the certified agreement.

PN61

So if an order is to be made, then we would say it should be confined to the circumstances of the dispute. And this dispute should not be permitted to be a device to enlarge in the scope of an order that might prohibit otherwise lawful conduct on the part of members of the Australian Workers Union in other circumstances up until the completion of the project. And I say that with respect to conduct of the AWU, its officers and delegates in the same vein. You'll note that that particular phraseology and application is made with respect to the AWU as distinct from its members. So that's the first point that I would make, Commissioner.

PN62

The only other point that I would make is with respect to point 5 of the draft order which is the term and date of effect: again the application for an order to remain in force for a period of three months is manifestly excessive, particularly in circumstances where we have been informed by the company that it is anticipated that this will no longer be an issue passed midday tomorrow. The expectation is that the conduct that is complained of will cease because the subject of the dispute - that is the supply of water - will have been resolved by the Gladstone City Council, or in the alternative, is already resolved by other means employed by the company: that is trucking in water.

PN63

So, if one is to accept either of those propositions, the term of an order being expressed to apply for a period of three months goes well beyond the pale with respect to the issues in dispute. It would be appropriate, if the order in my submission was to apply up until tomorrow evening and that either party be at liberty to apply if the circumstances of the particular dispute happened to or look as if they will transcend the term of the order, that would be appropriate, Commissioner, in my submission. But just to recap: we oppose the making or the application for the making of an order with respect to this. We would feel much more confident that a resolution could be found if the Commission were to issue an appropriately worded recommendation to get employees back. That's the submissions of the Australian Workers Union.

PN64

THE COMMISSIONER: Thanks, Mr Swan. Yes, Mr Moorhead?

PN65

MR MOORHEAD: Thank you, Commissioner. Commissioner, we concur with those submissions made by Mr Swan on behalf of the AWU and say that they are of equal application to the members of the AMWU. There are a few points on which I'd like to address you on, Commissioner. Commissioner, if I can refer you to the Department of Employment, Training, Industrial Relations, Workplace Amenities Advisory Standard 2000. I only have one copy but I'll read the passage then and I'll pass it up. In relation to washing facilities, the advisory standard says that:

PN66

Washing points should be installed in positions of easy access to work rooms, dining rooms, combined dining dressing rooms and toilets.

PN67

It then goes on to say that:

PN68

The minimum number of washing points for workers engaged in a heavy, hot or dirty industry should be one for each seven or part thereof.

PN69

The advisory standard also goes on to say that:

PN70

A washing point should have reticulated water and when there are more than 20 workers ...(reads)... include hot water and be connected to an effective drain or trap or waste drain.

PN71

Commissioner, I'd seek to tender that document.

PN72

THE COMMISSIONER: Do you wish that marked as an exhibit, Mr Moorhead?

PN73

MR MOORHEAD: Yes, please, Commissioner.

PN74

THE COMMISSIONER: Yes. We'll mark that exhibit A1.

EXHIBIT #A1 DEPARTMENT OF EMPLOYMENT, TRANSPORT, INDUSTRIAL RELATIONS WORKPLACE AMENITIES ADVISORY STANDARD 2000

PN75

THE COMMISSIONER: Yes, thank you.

PN76

MR MOORHEAD: Commissioner, we say that even if the Commission is satisfied that the jurisdictional grounds for making of such an order as sought by the company exist, we say that there doesn't exist that element of illegitimacy to trigger the exercise of the Commissioner's discretion. We say that the action of the members of the AMWU and the AWU in taking the action that they have today was based on a reasonable concern that the company was not providing sufficient drinking water and water for which to wash in. So we say that on that basis the Commission should not issue the orders as sought, but rather strong recommend that the employees return to work tomorrow morning as they've indicated.

PN77

Commissioner, we say that it is that issue of water which is central to the dispute. In particular, can I refer to the affidavit of Mr Brad Fackender, and at the final dot point it says:

PN78

The employee representatives advised that the employees had voted to strike until tomorrow morning. If potable water was not available from the tap at that time then they would strike for another day.

PN79

Commissioner, we say that on that basis, that it is the concern about the water that is critical to the decision to work or otherwise, and we say that that central concern is a legitimate concern for our members to have. Commissioner, in relation to the length of the order sought by the company, we say that that length of the order is excessive, to say the least. Commissioner, there's no history of disputation or industrial action at this site prior to today. Commissioner, the employees have indicated that once the issue is resolved, they will return to work. Sorry, they will return to work tomorrow morning and continue to work if the issue is resolved.

PN80

So, Commissioner, we say that there's no evidence to say that any of this behaviour of any industrial action would be continuing for any period of time that would justify a lengthy order such as that sought by the employer in this situation. Commissioner, on that basis we say that a strong recommendation of a return to work would be a more suitable option and that the orders sought are excessive in duration.

PN81

THE COMMISSIONER: Yes. Thanks, Mr Moorhead. Yes, Mr Arnold.

PN82

MR ARNOLD: Commissioner, it hasn't been stated from representatives from the union that the industrial action is indeed not occurring. This industrial action is prohibited under Section 170MN as it's been taken before the nominal expiry date of this certified agreement, and this should weigh in our favour. The certified agreement itself provides that there be no stoppage of work whilst the disputes process is being followed and, Commissioner, that's clause 5.3 of the agreement.

PN83

It would appear from their actions this morning that the employees are enjoying the benefits of the certification of the agreement, but aren't accepting the responsibilities that go with that. We had no ability whatsoever this morning to actually comply with the grievance disputes procedure because the blokes were out the gate before we could address the issue or in fact we thought that we had addressed the issue. As I've stated, the agreement itself provides a mechanism for resolving disputes such as these, and the unions have also not sought to utilise this procedure.

PN84

The union and its members have resorted to industrial action which is prohibited by the Workplace Relations Act and is also contrary to the certified agreement. Thiess has been at all times prepared to follow the procedure as it's set out in the certified agreement. We've also attempted to conciliate the dispute and granting of a 127 order will not inhibit the resolution of the dispute. On the contrary, if the order is granted and if the parties comply with it, work can continue while the parties deal with the issues in accordance with the certified agreement.

PN85

The industrial action as it's occurring is preventing Thiess from complying with the terms of the contract at the project. There's also a failure to meet with clients' contractual requirements for the project completion, which could expose us to claims for damages. The contract between Thiess and the client contains no force majeure protection for local issue stoppages and therefore there is no protection for Thiess for the above consequential damages.

PN86

In regard to some of the statements that were made by the representatives of the unions here today, the water was provided in the morning. We did everything that was within our power to provide water for the site. I would also like to emphasise that it's only the potable water, the drinking water if you like, that's not available. The other reticulated water for use for washing, toilets and that sort of thing is available. In regard to the issue that, you know, that the employees had agreed that they would return tomorrow and would resume work as normal if the issue was fixed, I think in my previous comments I've stated, Commissioner, that whether that issue is fixed or not is an issue that's entirely out of our hands.

PN87

If they turn up to work in the morning at 6 o'clock and the potable water is not in the taps, we've been told that they go again. We've been told from the Gladstone City Council that it will probably be by mid-morning that it will be available. So there's not a whole lot we can do about that. But we have made every effort available to us providing water for drinking, providing water for washing and really have put in contingency plans that address all of those issues. It will be addressed as soon as it's addressed. The action is unlawful and as stated previously we seek the orders sought. In terms of the length of the order, Commissioner, we'd be prepared to leave that at the discretion of the Commission. Thank you.

PN88

THE COMMISSIONER: What about Mr Swan's submission over the issue of the interpretation, etcetera, of the agreement in provision 3 of the proposed draft order?

PN89

MR ARNOLD: Yes. I suppose in terms of application and interpretation, Commissioner, it was really in the application of the resolution of grievance and disputes procedure. The only other - - -

PN90

THE COMMISSIONER: So the interpretation issue at least could come out, couldn't it?

PN91

MR ARNOLD: Yes. And the other one was clause 20 in regard to the amenities, even though it doesn't specifically address water.

PN92

THE COMMISSIONER: Is the company prepared to give an undertaking on the record that adequate supplies of drinking etcetera water will be available for the various purposes for all site employees?

PN93

MR ARNOLD: Yes, Commissioner, we would be prepared to do that, and it is within our best interests to that. I mean we are not going to get productivity out of any of the blokes if they are not hydrated enough out there. And it was always our intention that such water would be available for the rest of the day. We don't have enough we will go and get some more.

PN94

THE COMMISSIONER: The Commission would just make the observation, whilst I understand that it is not in the hands of the contractors it is a matter for the council, the Commission finds it somewhat hard to understand why a damage water line would take really so long to be fixed. And I am happy for that comment to be passed on to the council. Yes, thank you.

PN95

Yes, the Commission has had the opportunity to consider the evidence and the submissions in this matter and has decided as follows: the matter arises out of an application under section 127 of the Workplace Relations Act 1996 by Thiess Pty Limited, the employer's second order to prevent industrial action occurring at the Calciner plant in Gladstone. The proposed order would be binding on the AWU and the AMWU, its officers, employees, delegates and agents and its members employed by and in their employment with the company.

PN96

Section 127 of the Act will be spelt out in the decision. The applicant currently has a contract for the construction work on site. Industrial action is defined in section 4 of the Act. The Commission is not satisfied on the basis of the undertaking given by the company that adequate supplies of drinking etcetera water will be available for the various purposes for all site employees that such action would then come within the exception to section 4 of the Act.

PN97

Further the Commission is concerned that the disputes resolution procedure and the agreement has not been followed and is satisfied that the company took reasonable steps in the circumstances to ensure that employees continue to work on site would be provided with adequate water. I am of the opinion that the industrial action that has occurred and which is proposed to continue for at least the balance of today and possibly further, is or is plainly not likely to be protected action in accordance with the requirements of the Act.

PN98

The Commission considers that the application with slight amendments should be granted on the basis that there is currently in place a certified agreement applying to the work. That agreement has not passed its normal expiry date of 29 November 2004. And the Commission will issue an amended decision following the conclusion of this hearing. The amendments will include the deletion of the words, interpretation where they appear in paras 3(a), (b), (d) and (e) of the proposed order. Further the Commission will have the order apply from 5 pm today, 9 December 2002.

PN99

And the order will be given a duration until 5 pm on 13 December, or until further order by the Commission. The Commission stands adjourned, and the draft order will be available to the parties as soon as practicable after the conclusion of the hearing. And the parties are required to effect service of the order in accordance with the order that will issue. The Commission stands adjourned.

ADJOURNED INDEFINITELY [12.56pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #T1 AFFIDAVIT OF MR B. FACKENDER PN55
EXHIBIT #A1 DEPARTMENT OF EMPLOYMENT, TRANSPORT, INDUSTRIAL RELATIONS WORKPLACE AMENITIES ADVISORY STANDARD 2000 PN75