C2002/1155, Transcript of Proceedings [2002] AIRCTrans 771 (8 March 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2002/1155

BHP STEEL LIMITED

and

THE AUSTRALIAN WORKERS' UNION

Application under section 127(2) of the Act
to stop or prevent industrial action

SYDNEY

10.49 AM, FRIDAY, 22 FEBRUARY 2002

Hearing continuing

PN1

HIS HONOUR: This is matter 1155 of 2002. It is an application lodged on 21 February by BHP Steel Limited seeking a section 127 order in relation to industrial action at BHP Steel Limited - Chullora. Could I have appearances please.

PN2

MR G. HATCHER: I seek leave to appear for BHP Steel Limited and can I inform your Honour that my client was formally known as BHP Steel (JLA) Pty Limited.

PN3

MR R. SPARKES: I appear on behalf of the Australian Workers' Union. I oppose the intervention of my colleague, obviously his qualifications clearly outstrip mine. Obviously it is such short notice that you have not had an opportunity to undertake some legal advice and if the commission deems fit to grant that leave then we would clearly put on record that we would be appreciative if we could also take an opportunity to seek legal advice.

PN4

HIS HONOUR: Why should I grant leave Mr Hatcher?

PN5

MR HATCHER: If it please your Honour, this is an application pursuant to section 127 of the Act. As your Honour is well aware, that section entitles the commission to make orders which prevent industrial action taking place or require its cessation, the next step if the orders are not complied with at their force is proceedings in the Federal Court, either proceedings to enforce the order or proceedings for an injunction to give Federal Court effect to this commission's order. Your Honour will also be well familiar with the authorities in that court where that court will consider the legal efficacy of the orders made by this commission.

PN6

On that basis my client submits that it is entitled to be represented by legally qualified advocates who might assist the commission to ensure that the order that the commission is asked to make will be legally effective thereby giving my clients the rights that it would otherwise be entitled to in the Federal Court if it is necessary to move to enforce the commission's order.

PN7

HIS HONOUR: The industrial action complained of in this instance under the notice is in relation to work that is regulated by an agreement that has expired is it?

PN8

MR HATCHER: That is so your Honour. That is still operating - - -

PN9

HIS HONOUR: On what basis is - why is it said that the agreement or that the work or the refraining from work constituted by the industrial action is not protected industrial action?

PN10

MR HATCHER: Because your Honour there is no bargaining period in place. Even were one to find a bargaining period there is no notice of industrial action served on my client. Even were one to have regard to a notice of industrial action that my client became aware of it does not specify the industrial action presently being undertaken and even if one were to form a view in relation to all that adverse to my client, the industrial action is not in pursuit of the agreement that the notice of industrial action, purported notice of industrial action purports to authorise industrial action in respect of.

PN11

HIS HONOUR: Mr Hatcher I have to say that I am conscious that there are matters and proceedings relevant to BHP Steel Products of various kinds occurring today in three states. Whether they are all related I am not too sure but I had a section 127 of kind I think in relation to South Australia. I referred a matter both of them to her Honour Senior Deputy President Acton in Melbourne today. Presumably there are bargaining periods of some complexity, are there?

PN12

MR HATCHER: Your Honour there has been an attempt by the AWU to initiate a bargaining period, might I hand up a copy of a notice that was received at my client's premises?

PN13

HIS HONOUR: It was in October last year.

PN14

MR HATCHER: Yes your Honour. Your Honour will see that 1A in the prescribed form says that the bargaining period is for the purpose of the AWU trying to make an agreement relevantly with BHP Coated Steel Australia. Now we know of no corporation, no legal person of that name. Further it is said to apply to the premises at 73 Anzac Street, Chullora and your Honour appears to be limited to those premises and yet we understand that what is now sought is a national agreement in respect to premises throughout the commonwealth.

PN15

Can I also your Honour hand up a copy of what purports to be authorisation to engage in industrial action and a notification of intended industrial action and your Honour will see again from the form that there is a reference to BHP Coated Steel Australia whoever that might be thought to be and the accompanying notification purportedly pursuant to section 170MO your Honour sees that the action is said to be restricted to members employed by BHP Limited at BHP Coated Steel Australia, 73 Anzac Street, Chullora. As I am instructed your Honour there are no such persons.

PN16

Furthermore the action is limited to a 24 hour stoppage of work on Monday 10 December and rolling stoppages thereafter. In fact your Honour the action that my client has been subjected to was a 24 hour stoppage on 10 December and no action since then until the actions giving rise to our application which were the imposition of bans and a 36 stoppage in production which is presently under way.

PN17

HIS HONOUR: Well the extant agreement refers to BHP Steel Coated Products Division, is that body not in existence.

PN18

MR HATCHER: Your Honour is such a division but if your Honour has regard to the parties - - -

PN19

HIS HONOUR: On the clause it says BHP carrying on business as BHP Steel Products Coated Steel Australia.

PN20

MR HATCHER: Yes your Honour. And your Honour sees that the agreement covers all BHP Steel (JLA) Pty Limited employees covered by the BHP Steel Products Service Centre Award 1998. That appears in clause 12 who is covered the agreement. In clause 15, parties to the agreement, the parties are BHP Steel (JLA) Pty Limited and the Australia Workers' Union.

PN21

HIS HONOUR: Yes, what's the section 143 is it. I don't always remember these ones.

PN22

MR HATCHER: The application for leave to appear, your Honour, 42, your Honour -

PN23

I either appear by leave of the Commission with consent by leave made on an application if the Commission is satisfied having regard to the subject matter of the proceeding there are special circumstances that make it desirable ...(reads)... counsel, solicitor or agent.

PN24

In my respectful submission, your Honour, either subsection 2 or subsection 3 applies in the circumstance where in order to ensure the legal efficacy of the relief sought one needs to be satisfied that the order will be enforced by the Federal Court and to that end, in my respectful submission, there are special circumstances and my client can only adequately be represented by counsel, solicitor or agent. The section doesn't make a distinction between the three.

PN25

HIS HONOUR: Yes, what do you say Mr Sparkes?

PN26

MR SPARKES: Obviously, Mr Hatcher identifies some minor glitch in technicality - I think that quite clearly we have the industrial relations union resources representative here from the company, he speaks of the Act in regards to the Federal system in the Federal court. We are not in the Federal court today, we are before yourself, your Honour, and quite clearly BHP since the inception of enterprise bargaining has negotiated in totality of all of its sites around the country.

PN27

If I go back to 1992 just briefly to make the Commission aware that Big Steel and Little Steel, Port Kembla, Western Port, Whyalla at the time, Newcastle - BHP had advised the unions that it did not want to negotiate separately. We had to negotiate as one. For many agreements that have been registered within this court and also in the state, those have been negotiated nationally - on a national basis. The previous agreement that is registered within this Commission for the service centres was negotiated nationally. The provision in regards to a clause within the current National Enterprise Agreement, clearly says that the parties were to confer in July of last year.

PN28

In July of last year we attempted on several occasion as we have done previously, without serving notification, to sit down and have amicable discussions with BHP. Because of the uncertainty of who was to represent BHP it was delayed and delayed until our hand was forced to serve the appropriate application even after the expiratory. We had several meetings with BHP and it was determined by a Mr Rouse who is the National Industrial Relations person for the Coated Steel Service Centres that they would negotiate nationally.

PN29

This is bigger than just the company at 73 Anzac Street, Chullora.

PN30

HIS HONOUR: Is there anything at all at 73 Anzac Street, Chullora?

PN31

MR SPARKES: Yes, there is.

PN32

HIS HONOUR: What's there?

PN33

MR SPARKES: It's the coated steel service centre. It's a company currently trading as JLA. The service centre agreement, the service centre award - in my experience over the last nine years, the company has changed trading names at that site several times. So they come before the Commission today to seek leave to intervene to seek 127 orders.

PN34

I say to the Commission today that we have been very sensible, we have lived up to everything in the previous agreement, we have taken the business at 73 Anzac far greater than any other site in this country. We have increased productivity by 40 per cent, we have a good working relationship, but even though we want to sit down on a local level and come to an agreement, the company clearly says no, these are the issues that we'll be in, and these are the issues that we'll not accept unless they are in.

PN35

The New South Wales Port Kembla branch on behalf of Port Kembla has been having a series of Commission hearings. BHP didn't even want the Commission to be involved. It was under the intervention of the New South Wales State Government. Those hearings I understand broke down on Tuesday. When we deemed that national negotiations weren't forthcoming, we approached the company to have national service steel centre negotiations, which took place in Melbourne in late January. Took place again in Sydney. We are five months out of the agreement. The company has clearly said, there will be no retrospectivity. So as they continue to delay it, as we go on, quite clearly our members are becoming more and more frustrated.

PN36

I am advised that they tried to do a separate agreement with the site in South Australia to exclude them. So my colleague appears today and I will put more on transcript as we go through, my colleague appears today seeking the 127, seeking leave, where I believe that he's only using a technicality. It's always been known as the Coated Steel Service Centre, coated products, and I say to the Commission that I still believe that if he wants to seek leave under 42, I don't believe it should be granted. I believe that he should save himself for the Federal Court if it ends up going that far.

PN37

HIS HONOUR: The matter before the Commission is an application under section 127 seeking an order binding on the AWU, it's officers and it's employees who are employees of BHP Steel Limited who are members employed at the operations of the company at 73 Anzac Street, Chullora, New South Wales, and engaged in work which is regulated by the BHP Steel Product Service Centre Award referred to as the employees.

PN38

At the outset of the matter, a question has arisen as to whether Mr Hatcher of counsel should be granted leave to appear for BHP. That application for leave to appear is brought on the basis that leave should be granted under subsection 42(3):

PN39

If the Commission is satisfied that having regard to the subject matter of the proceedings, there are special circumstances that make it desirable that the parties may be so represented or (c) on application made by the party, if the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent.

PN40

Effectively the special circumstances that are pointed to by Mr Hatcher are that there is industrial action occurring. BHP Steel Limited for whom he appears, which I take is a successor or the parent company of BHP JLA Proprietary Limited, the party on whom the Award is binding.

PN41

MR HATCHER: No, your Honour, with respect it is the same company. It's simply a change of name. The ACN remained the same.

PN42

HIS HONOUR: I stand corrected - a changed name of the company that was carrying on business as BHP Steel Products Coated Steed Australia. The special circumstances alluded to are that industrial action that is taken after the expiry of that agreement and ostensibly by the union in pursuit of a bargaining period notified to BHP Coated Steel at 73 Anzac Street - which I notice is the same address as that alluded to in the proposed order - is not in fact covered by an adequately instituted bargaining period and that the notification given under section 170MO is not in fact valid insofar as it gives notice of a 24 hour stoppage of work by all AWU members from the start of first shift on Monday, 10 December 2001, and industrial action consisting of rolling stoppages from Monday, 10 December 2001.

PN43

Mr Hatcher says that since the order that it is asserted should be made may require enforcement at Federal Court level, the drafting of the order to make it most effective is a matter involving some legal skill and it is desirable that in the circumstances the Commission should accept that the parties may be represented by counsel.

PN44

Alternatively, I take it as put that for the purposes of drafting such an order and addressing the points that are to be raised, BHP Steel Limited can only adequately be represented by counsel, solicitor or agent.

PN45

In response Mr Sparkes, who opposes the granting of leave points to the character of the existing agreement, which is a national agreement, binding on BHP Steel, JLA Pty Limited in respect of its Acacia Ridge, Chullora, Sunshine, Braeside and Wingfield steel service centres and Lysaght Building Industries operations.

PN46

In relation to that observation, I myself raised at the outset of the argument an indication that I was aware that there were other proceedings, at least two others, instituted I think by components of the single enterprise that appears to be covered by the BHP Steel Products Service Centre Award before Members of the Commission, one lodged in South Australia, one lodged in Melbourne. Those two matters and I'm not sure that that's the full extent of what has been brought in, because there appeared to be no coordination sought from the Commission before Senior Deputy President Acton.

PN47

Mr Sparkes' objection is that the resort to legal representation in relation to this matter is part of a tactic which defeats the union's recourse to protected action in relation to an area that has consistently, up until recently, been dealt with by BHP Steel JLA Pty Limited as effectively a national enterprise. He indicates that if leave to appear is granted, then he would seek an adjournment to permit the AWU to be also represented by counsel for the purposes of addressing the particular points that Mr Hatcher may seek to make.

PN48

I have considered the application of the section. I have perhaps too, consistently, if not neglectful, relatively hard to persuade that leave should not be fairly automatically granted in cases. On this occasion, I will refuse leave, at least temporarily. I do so for two main reasons. The first is that what is at issue here appears to be in the main questions about the adequacy of the unions in vocation of the protection that the Act ostensibly gives to industrial action taken in pursuit of an enterprise agreement during a bargaining period. I say ostensibly gives, because increasingly attempts to resort to protected industrial action seem to be attracting from quite major employers a flurry of applications or recourses to litigation. Some of them are granted, in my view, in circumstances where what would ordinarily be conceived to be action that falls within protected industrial action is about to commence, and there is then, after the court proceedings are instituted, a further flurry of appeal and like reviews of the validation of the fiat that the Commission effectively has given to not having regard to the protected character of the industrial action.

PN49

I bear in mind, in that respect also, that the Commission is obliged to have regard to equity good conscious and the substantial merits of cases without regards to technicalities and legal forms. It is difficult not to have regard to technicalities and legal forms in circumstances where the very point of the application is to focus upon what might be seen to be technicality and legal forms. For that reason, I have, in this instance only, temporarily refused leave to appear.

PN50

What I require, however, is that the application that is before me and I direct the reworked and the particulars of the points and allegations that go to why the industrial action referred to is not protected action under the Act and why it cannot be made - why, what is foreshadowed is not protected industrial action under the Act. In other words, I direct that the applicant put on the supplementary application setting out a written submission, together with evidence supplying particulars of the grounds upon which it usurps that industrial action that is occurring or threatened is not industrial action that should be conceived by the Commission to be protected or reasonably associated with protected industrial action.

PN51

Now, I will require that notification, or those particulars, to be lodged within five working days. I direct also that BHP Steel Limited include in those particulars a comprehensive indication of what other proceedings associated with bargaining periods related to or extensively related to the agreement which is sought to be replaced by the agreement extensively being sought in the notice of initiation of bargaining period and whatever matter is referred to in the memorandum of 12 October 2001, its extent. In other words, I want a picture of what is happening across these operations.

PN52

MR HATCHER: May it please your Honour, can I draw to your Honour's attention, something I thought fell from my friend, Mr Sparkes, and I don't think is in issue between us. If your Honour has regard to the application, your Honour sees that there are two instruments, a Steel Products Service Centre Award and a separate certified agreement that applies only to Chullora and, your Honour, that agreement - perhaps I could hand up a copy.

PN53

HIS HONOUR: I'm sorry, I don't have - sorry, I do have the agreement. Yes, I am at cross purposes, I am confusing the award with the - - -

PN54

MR HATCHER: Yes, well your Honour may recall that in my address I pointed to the fact that the agreement only applied at Chullora and only bound my client, who was nominated correctly, in respect to employees working at the Chullora Service Centre.

PN55

HIS HONOUR: Yes, I think that - I stand corrected in that respect. It was a false impression on my part that there was - that the parties bound clause that I was looking at was in fact from the agreement.

PN56

Insofar as I have made the direction, however, the words that I have given and I can put these words more carefully later if necessary, is that BHP Steel Limited, nonetheless, include in the particulars to be supplied an indication of what proceedings are underway in relation to bargaining periods relating to or ostensibly relating to other parts of what was known as the BHP Steel Products Coated Steel Australia business or division at Acacia Ridge, Sunshine, Braeside, Wingfield Steel Service Centres and Lysaght Building Industry operations. If they are still part of the enterprise my industrial experience - and this in turn can be corrected in due course if I am wrong - is that when these agreements were last certified for those particular enterprises, and I note I certified the one for this particular site, was that there were virtually identical agreements certified across all - or if not all, most of those operations at or around the same time. Effectively there was a measure of national negotiation about them.

PN57

In the circumstances, Mr Hatcher, pending receipt of those particulars I am not going to grant you leave to appear. I indicate that I will review that when I have received the particulars of the technical legal arguments that are to be advanced. I expect at that stage, Mr Sparkes, that if an adjournment is necessary and you then oppose the appearance then if you seek legal representation you will have organised it so as it can be made available immediately. In the meantime, if there are representatives from the company here who wish to perhaps go to the body of the application then they can be substituted. Otherwise I will adjourn the matter.

PN58

MR HATCHER: I wonder if your Honour would hear from me on one matter of procedure before your Honour takes that step?

PN59

HIS HONOUR: Certainly.

PN60

MR HATCHER: Your Honour has suggested five days for the provision of particulars. I should inform your Honour that my client supplies a number of other companies on a "just in time basis". Within five days those companies will be standing down employees if my client does not resume normal supplies. Can I also inform your Honour that my client is in a position to supply particulars well before that five days. My client is aware that your Honour has, and indeed every member of the Commission, has some difficulties next week. Could we ask, your Honour, that the matter be re-listed for 3.00 pm this afternoon, by which time those particulars will have been supplied. We can supply them by 2.00 pm provided that they can be supplied by facsimile. That should also afford the organisation the opportunity to obtain legal representation if they wish.

PN61

HIS HONOUR: I think I have another matter at 3.00 pm this afternoon. Yes.

PN62

MR SPARKES: I would just like to advise, your Honour, that I indicated I have been looking after this site for some nine years. In the last negotiations the lead time for orders was one month. In discussions over the current enterprise agreement the lead time in some cases is reduced to two weeks, possibly one week. The five days that Mr Hatcher refers to has never been raised as far as urgent orders.

PN63

Our people - to give this Court an understanding - there were some trucks that came up from Western Port for a totally different site that was taking industrial action as well. Our members didn't turn the trucks away, they unloaded the trucks. There is a structure that our members have - five working days on day shift and four on afternoon. There is no stoppage of production this afternoon, whatsoever. It is in their planned structure. There is a stoppage on Monday with a normal resumption of work on Tuesday. I can indicate to this Commission at this stage, there is no intention for further industrial action.

PN64

The company has seen forthwith to place notifications right around the country. Taking away our national resources into other parts. Obviously I have other commitments other than BHP. We have been negotiating for five months. Five months. And BHP have clearly said accept it or do what you will. So, I see that five days, as your Honour as put, will give us the opportunity to have discussions with our national office and then seek the appropriate counsel.

PN65

HIS HONOUR: Yes. I am not persuaded that I should depart from the timetable that I had in mind beyond indicating that I will list the matter for Thursday next, 28 February at 10.15 am. I do expect that in the meantime if the particulars can be supplied this afternoon then so much the better. So that you, Mr Sparkes, can pay attention to them. If there is a way in which the cessation if that can be put or the holding of industrial action can be sustained then that should be the case. I also put you on notice that if your paperwork isn't in order then you had better get it in order.

PN66

I, for one, am averse to being as it were press-ganged into using the penalty provisions of the Commission's powers on short notice in an atmosphere of panic and confusion. You might be today getting some advantage of that because I think that the employers who seek to invoke the powers have an obligation to put on proper notice and to allow the Commission and the opposing parties adequate opportunity to meet the case made against them. That is effectively what you are getting.

PN67

Conversely, though, if you are seeking to rely upon protection of the Act then the time has long passed by which you should have got your paperwork in order. It ill behoves the union seeking to resort to collective bargaining or for that matter an employer and least of all for this Commission and the Federal Court to be mired down in paperwork in which the documentary trail is littered with clerical mistakes and errors. If you are taking industrial action in these times then you need to do so in a conscious and deliberate way with proper notification and observe the conditions of the Act that allow it to be protected.

PN68

It makes it extremely difficult for all concerned if there is a cavalier approach to the requirements of the legislation. The Commission as constituted at least starts from the position that the Act gives protection during a limited period of a bargaining period to properly notify industrial action for the purpose of collective bargaining. That is the whole thrust of the change of regime. To avail of it you have got to observe the requirements of the Act and you simply invite applications based upon technical deficiencies if proper regard hasn't been had to it.

PN69

In this instance, also from the AWU's viewpoint if it is the major supply in this coated steel products I expect someone, somewhere to explain to me or to her Honour, Senior Deputy President Acton, if she has got carriage of the separate range of matters just what is going on and what we are to anticipate. I may in my impression be wrong but I do remember the succession of JLA agreements that I had. I think most of them were certified by me and if memory serves me correctly there were some rather flat jokes about pattern bargaining by companies at the time.

PN70

I am prepared to have the hearing go on today in Mr Hatcher's - I wouldn't say his absence. I have no difficulty about him sitting in the back of the Court if he wants if there are representations from the company. Would there be some purpose in going off the record?

PN71

MR HATCHER: I would like an opportunity to take instructions on that, your Honour. I wonder if I might also, your Honour, in view of something that fell from your Honour, simply clarify one matter. Your Honour did say that the AWU would be afforded a proper application. I don't take it that your Honour was suggesting that the application that was filed was anything other than - - -

PN72

HIS HONOUR: I thought I said proper opportunity to respond.

PN73

MR HATCHER: The application as filed certainly complies with the rules.

PN74

HIS HONOUR: I am not suggesting the application is incompetent. Something else did fall from me, Mr Hatcher. What I thought I said was they would be afforded a proper opportunity to meet the case that is presented based upon the detailed defects, if one can put them neutrally, that are replied upon for purposes of asserting that industrial action ostensively protected is not protected.

PN75

MR HATCHER: If it please your Honour. If I could take the opportunity to take instructions, your Honour, I would seek to do that.

PN76

HIS HONOUR: I'll adjourn for 10 minutes.

PN77

MR HATCHER: 5 should be more than adequate, your Honour.

SHORT ADJOURNMENT [11.33am]

RESUMES [11.47am]

PN78

HIS HONOUR: I seem to have a lot of difficulty getting rid of you, Mr Hatcher - - -

PN79

MR HATCHER: Your Honour, my client would wish to put one thing before your Honour in any continued hearing. It is very short and I can put it myself if it doesn't inconvenience the Commission too greatly.

PN80

HIS HONOUR: I think that I can sustain it, and I don't see Mr Sparkes - I think you have suborned him enough so far, he'll allow you to finish what you are saying.

PN81

MR HATCHER: If it please your Honour. My client is concerned that I perhaps didn't put as colourfully enough, or graphically enough the situation which presently confronts it, but your Honour may be under some misapprehension as a result of what Mr Sparkes put in relation to industrial action.

PN82

My client's present position is that there is no employee at work, and it understands that the strike will not come to an end until 6.30 am on Tuesday next, and that there are bans in place which will continue thereafter, which have the effect of reducing its production by something between 25 and 30 per cent. My client does have a responsibility to its shareholders to protect the company's interests in that regard, and I think if the industrial action ceases as Mr Sparkes said it had ceased, that would be to everyone's benefit, but if it doesn't clearly 5 days hence, it will not yield a great deal of relief to my client should relief be available under the legislation.

PN83

HIS HONOUR: Do you wish to say anything, Mr Sparkes?

PN84

MR SPARKES: My colleague clearly indicates that quite evidently the effect this is having on the business - it is not with any joy we have been at the coal face of continuous improvement at this site. As I indicated earlier, we have improved productivity by over 40 per cent. We have unloaded trucks that have come from interstate that aren't even linked to that site.

PN85

The employees, the decision they took to take industrial action, was - this is the biggest industrial action they have taken in 10 years. It has always been a co-operative approach. They had industrial action in December, international protests, in which for a variety of reasons didn't pan out as well as expected. The company would have notified the Commission then, it hasn't done so. They come today and say, well, they want you to utilise the act to force the people's hand where quite evidently the law put in place today restricts our members from pursuing what they rightfully believe they are entitled to. They have placed the ban, they have taken the industrial action.

PN86

25 to 30 per cent, if we go back to the old structure, it is not nowhere near what the tonnage was made prior to the continuous improvement being made. The position that I put in regards to the full day stoppages it will cease by Tuesday, 6.30 am. We are back in the Commission. I have indicated to this Commission that this is bigger than just 73 Anzac Street. There are a variety of court hearings across the country; there are stoppages right across the country. It wasn't as if we just walked out. We had a meeting; we advised the company last Thursday; we advised the company again on Monday at the meeting, the local management, and myself and the delegate - - -

PN87

HIS HONOUR: When you say you advised the company last Thursday, that was you advised them of the intention to take industrial action?

PN88

MR SPARKES: That's correct.

PN89

HIS HONOUR: With effect from when? What is the industrial action? What is the current stoppage?

PN90

MR SPARKES: There are a variety of industrial action right across the country, at the service centres, at building products, Port Kembla and Western Port are on hold until next week. It is, with reluctance, it is not our mode of operation - - -

PN91

HIS HONOUR: Could I just get the picture in relation to Chullora? What is happening there at present?

PN92

MR SPARKES: Chullora, at the moment, there is a cessation of work as from 2.30 yesterday afternoon until 6.30 Tuesday morning. They run an 8 hour day shift, and a 10 hour afternoon shift. There is no production that was scheduled for this afternoon anyway; they only work a 4 day week on the afternoons. There is a ban in relation to co-operation - - -

PN93

HIS HONOUR: So there wouldn't be work ordinarily from today until when, Monday morning?

PN94

MR SPARKES: Until Tuesday morning. Ordinary?

PN95

HIS HONOUR: Ordinarily, yes.

PN96

MR SPARKES: Under normal circumstances it would cease at 2 o'clock this afternoon. Under ordinary circumstances, there is no work on Saturdays and Sundays and hasn't been for a very long time.

PN97

HIS HONOUR: So, it is the loss of Monday?

PN98

MR SPARKES: It is the loss of Monday.

PN99

HIS HONOUR: Very well. And then you say after that there is no industrial action scheduled?

PN100

MR SPARKES: No, that is correct, no stoppages of work. There are still bans in place. The co-operation where we've broken down a whole range of demarcation issues between staff and employees, that is all part of the productivity improvements. The loading and unloading of trucks, flexibilities, those in these times. Obviously people have said, well, if the business isn't prepared to acknowledge our achievements then they are not going to continue to growth the fruit of us being totally productive and efficient.

PN101

HIS HONOUR: And what discussions are due to occur?

PN102

MR SPARKES: With the - - -

PN103

HIS HONOUR: Company.

PN104

MR SPARKES: Since when, your Honour?

PN105

HIS HONOUR: Well, are due to occur. You're out on the grass. What talking is going on?

PN106

MR SPARKES: My understanding is that the original position was that we were having national negotiations that covered a whole range of the BHP sites. Because the issue in Port Kembla over job security, and that being conducted in the state jurisdiction, I understand that negotiations soured during the month of January. It was at the union's request that we separate the service centres along with building products. Several meetings took place under those negotiations, and it was indicated by the company last Thursday at our national office that there were certain clauses that were not negotiable under any circumstances and those had to be there. It was indicated at that meeting that basically negotiations had finished at a national level just for the service centres. The decision on - - -

PN107

HIS HONOUR: I'm sorry I'm not clear. At the national levels?

PN108

MR SPARKES: Only for the service centres, your Honour.

PN109

HIS HONOUR: I see.

PN110

MR SPARKES: The original national negotiations covered every BHP site and I could read them out to you if you - - -

PN111

MR SPARKES: No, I don't need all of them. I really just wanted to see with respect to Chullora. I'm immediately only concerned with Chullora, I take it?

PN112

MR SPARKES: The position as far as further negotiations with the company is that our national assistant secretary will be writing to the company, seeking national negotiations with BHP, because to put it bluntly the local management don't have the authority. They have been given instructions - - -

PN113

HIS HONOUR: When you say, will be writing?

PN114

MR SPARKES: May have already written. There was a phone link up Tuesday - Wednesday, sorry, your Honour - there was a phone link up on Wednesday. indicating that was his process. He is in Melbourne today. I believe he is involved in the matter in Melbourne. I do believe that in the State Commission it has been indicated that - I am not familiar with the Commissioner, but he has indicated to our secretary of our Port Kembla branch that he will be linking the two matters, State and Federal, and he is going to be setting a date for a joint sitting.

PN115

HIS HONOUR: This is Port Kembla and what, the National ?

PN116

MR SPARKES: It will be Port Kembla who is on the New South Wales State. It will be on my understanding, all the other relevant BHP sites, Western Port, all the service centres, building products.

PN117

HIS HONOUR: They are not under the metals, are they?

PN118

MR SPARKES: No, they are under the New South Wales Steel Award and again BHP from their original position did not want the Commission involved at all. It was only through the intervention of the State Government. So initially they weren't even interested in fixing the problem. They have had 54 disputes in Port Kembla.

PN119

HIS HONOUR: Is there any way in which the bans could be stayed pending the hearing on Thursday?

PN120

MR SPARKES: I don't have the authority to give the Commission that undertaking but I am prepared to indicate that I would be prepared to go to a meeting of the members and if it is recommended by yourself to put that to them.

PN121

HIS HONOUR: Well, albeit it forthright, Mr Sparkes, at some risk because I haven't heard from the employer over this matter, but they are questioning the protected character of the action. They are also running with a section 127 at a stage where the industrial action is running and in all probability if it is then notified around people are going to try to make themselves fairly difficult to be contacted on Monday if an order were to eventuate. For the reasons that I have given, if the matter is going to be a technical exchange between lawyers about compliance with one section 71 section MO and various other provisions of the Act, then I think it should be done on proper notice.

PN122

All of those considerations point in the direction of it probably being fairly difficult for the company to persuade me to stop industrial action that is already effectively in place. While I note that some of it is due to occur on Monday as well. But the quid pro quo I think that the company could legitimately demand as if the industrial action is to continue for Tuesday, Wednesday and into Thursday. The delay that I have built into hearing the process might be taken into account and that is the reason why I would recommend that at least in relation to Chullora the delegates seek that the bans that would otherwise go on, on resumption of work, be held in abeyance until the outcome of the proceedings on the Thursday can be resolved.

PN123

MR SPARKES: I am prepared to take that recommendation back to them, your Honour.

PN124

HIS HONOUR: I put that somewhat tentatively because I am in a situation where I am also obliged to hear the company today if they seek to proceed but I think without cutting off that option I have foreshadowed I suppose probably the likely course of events. I have to hear the company whatever it wants to put in the time that is available but the course I have proposed is really one that is designed to achieve some sort of compromise. Your industrial action runs because you have commenced it ostensibly as protected industrial action. It is in course. It was notified and this matter has come on at this stage on relatively short notice in circumstances where, at least as the Commission has constituted, the legitimacy of industrial action would be put in issue.

PN125

I am of the view and I don't think that there is anything inconsistent in the authorities that the power in the Commission to direct in effect that industrial action in breach of an order will be unlawful, should be used to restrain industrial action that has an illegitimate character about it. So that would be effectively the debate today and without prejudging the outcome of it, I am suggesting that the best compromise is the company effectively has failed to persuade the Commission to give it a peremptory order to cease to direct the association of what is already occurring. But it takes away for you to process a recommendation that the continuation of the action in the form of bans or whatever other action is planned between now and next Thursday, be suspended.

PN126

Also a recommendation that there be real activity by the AWU and whoever else is involved to get a co-ordinated handle on how these matters are to be resolved. I am, as panel head, responsible for metals and I am reading the applications as they come in. An onus to shorten has other preoccupations at present but if you have got troops out in the grass and the company is bleeding, then I regret to say that Mr Shortens preoccupations aren't enough of an answer. Somebody has got to be co-ordinating what is the purpose of the industrial action before it drifts on too quickly.

PN127

I am not aware of what is going on in the State if there is to be any co-ordination with us and whoever is running that matter had better get on to me or to the president. There might have been a communication with the president, if so I am not aware of it, but I certainly wouldn't want the matter to drift on the very basis upon which I am explaining that I don't think the matter should be dealt with by legal technicalities. I think it should be dealt with and very robustly by commonplace industrial negotiations so as people can get back off the grass and the company's can resume their normal operation.

PN128

MR SPARKES: Mr Roberts, has been co-ordinating it. He has had an extensive negotiations with BHP. He has been the steel co-ordinator for several years.

PN129

HIS HONOUR: Mr Robinson from ETU, isn't it?

PN130

MR SPARKES: No, Mr Roberts, Graham Roberts from - he is the national assistant secretary.

PN131

HIS HONOUR: I must say the name rings a bell because I have very limited dealings with BHP Steel. It has always been pretty peaceful. I think the one exception last year, Mr Roberts, did appear and the matter was - the Western Australian blue where there was a feedback into this area that is within Federal Metals and I think there was a 127 order that kept steel products and whatever else is in the Federal - out of the Western Australian AWAs dispute. So you might communicate my remarks to Mr Roberts with a view to at least getting him to fill us in. What is necessary. I make the same invitation to the company of course. If urgent conciliation or something is necessary between now and Thursday next then that also is a matter of application.

PN132

I know that there is a 170NA application before SDP Acton. That is in relation to the South Australian operation. That may be a co-ordinated mechanism I am not seeking to cut across if there is already co-ordination under way but it would be best to let me know whatever it is. Who is the State Commissioner handling it?

PN133

MR SPARKES: In South Australia?

PN134

HIS HONOUR: No, here.

PN135

MR SPARKES: I am not - - -

PN136

HIS HONOUR: That is the service centres, is it, and I can treat these as distinct.

PN137

MR SPARKES: The New South Wales Commission is specifically dealing with the Port Kembla issues.

PN138

HIS HONOUR: That is proposing that there be some sort of joint sitting in relation to the services?

PN139

MR SPARKES: Yes. Services and building products.

PN140

HIS HONOUR: The service centres and metals do you know are they - - -

PN141

MR SPARKES: All the service centres and metals they're total AWU.

PN142

HIS HONOUR: Yes, so they're within my panel.

PN143

MR SPARKES: Except for Western Australia where it's the AMWU and the ETU. The Building Products is a joint between the AWU and the AMWU separate from those.

PN144

HIS HONOUR: Are Building Products in this panel or in Vice President Ross's panel?

PN145

MR SPARKES: No, it would be Metal Industry. The other two sites are Port Kembla and Western Port. I understand there are mass meetings in Western Port today and talks have broken down there as well.

PN146

HIS HONOUR: Yes, I don't think it was Western Port that was on the notification to her Honour, I think it was Sunshine.

PN147

MR SPARKES: Sunshine, yes.

PN148

HIS HONOUR: Which would be what, the coated products?

PN149

MR SPARKES: Coated products, yes, Sunshine.

PN150

HIS HONOUR: Do you know the name of the Commissioner at all?

PN151

MR SPARKES: I don't off hand but I can obtain that quite easily.

PN152

HIS HONOUR: Yes.

PN153

MR HATCHER: If it's of any assistance, your Honour, I do know from the law lists that Vice President Walton in the New South Wales Commission has been dealing with some Port Kembla Steel matters and I think Deputy President Grayson in that Tribunal as well. That's the only knowledge I have of those matters, your Honour. My instructions were limited to a stoppage at Chullora in relation to a bargaining period purportedly instituted in relation to employees at Chullora.

PN154

HIS HONOUR: Well, perhaps, Mr Hatcher, and I know you have got people instructing you, you might feed the dialogue that has occurred back to those who are instructing you to indicate that the Commission also is at a bit of sixes and sevens trying to get a picture of what is going on in an area that has, I have to say in the several years I have been on the panel, been characteristically pretty peaceful.

PN155

MR HATCHER: If it please, your Honour. Your Honour has made a recommendation as I apprehend it, tentative perhaps.

PN156

HIS HONOUR: Yes, that's the sort of answer to the plea you put for more drama about the industrial action that is occurring.

PN157

MR HATCHER: Could I put a further plaintive cry before your Honour then that we might approach by way of videolink on Tuesday if that recommendation is not adhered to or complied with?

PN158

HIS HONOUR: You can have liberty to apply in that sense. It would need to be Tuesday afternoon but I will leave instructions here. My associate, Mr Dudley, will be in Melbourne. I will be in Melbourne but I will be back in the Commission premises sometime after lunch on Tuesday and I'm in Melbourne also on Wednesday.

PN159

Do you need a written recommendation on that, Mr Sparkes? I think it's clear enough.

PN160

MR SPARKES: No, I clearly understand what you have said, your Honour. Mr Hatcher has obviously ignited the brain cells, it is Vice President Walton in the New South Wales Commission that has made these instructions.

PN161

HIS HONOUR: Very well, I will follow up that if necessary. I have ruled out your appearance, Mr Hatcher, you seem to have done not too badly notwithstanding but is there anything else? Do we need to continue without you or will I just leave it on the basis that it is adjourned until next Thursday subject to liberty to apply?

PN162

MR HATCHER: I think your Honour has reserved liberty for me to re-agitate my application for leave to appear.

PN163

HIS HONOUR: Yes, on the basis that if Mr Sparkes continues to oppose at that point then he will have his legal swordsman ready to come in in his stead should he not be successful. Very well, I will adjourn the matter till 10.15 am on Thursday subject to the direction that I have given as to the presentation of particulars. The recommendation that I have made to the AWU and the leave that I have reserved I do also on the basis that I ask both parties to communicate with their principals as best they can to advise of the concern that I have expressed about optimising co-ordination of the various matters that are before the Commission or are under negotiations and to that end I will speak to Vice President Walton and of course to Senior Deputy President Acton and perhaps to my own President. The Commission will adjourn on that basis.

ADJOURNED UNTIL THURSDAY, 28 FEBRUARY 2002 [12.11am]