C2002/1264, Transcript of Proceedings [2002] AIRCTrans 819 (13 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Suite 25, Trafalgar Centre 108 Collins St HOBART Tas 7000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT LEARY

C2002/1264
AG2002/1471

MERMAID LABOUR and MANAGEMENT PTY LIMITED
and ANOTHER

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING
and KINDRED INDUSTRIES UNION - TASMANIAN BRANCH
and OTHERS

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

APPLICATION FOR VARIATION OF CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Mermaid Labour and Management Pty Limited
for variation of certified agreement to remove
ambiguity

HOBART

5.06 PM, WEDNESDAY, 27 FEBRUARY 2002

PN1

THE DEPUTY PRESIDENT: This is an application pursuant to section 127 of the Act. Could I take appearances, please.

PN2

MR K. PONGA: My apologies to the Commission for my dress but I have been on the road for about a few hours today. I am a Director and General Manager of Mermaid Labour and Management and I appear on behalf of the company and also our client, All Seas Construction Contractors, the owners and operators of the off-shore pipe laying vessel, Lorelay.

PN3

MR G. COOPER: I appear on behalf of the AMWU in this matter. I do advise the Commission though that my appearance is only possible as a result of this application being notified to me when I came today to hear other matters with the Commission. I know you cannot actually qualify an appearance but I do need to say that I think, because there are some procedural matters that I think will need to be discussed.

PN4

THE DEPUTY PRESIDENT: We have also been advised that you are appearing for the CEPU?

PN5

MR COOPER: Thank you.

PN6

THE DEPUTY PRESIDENT: Were you aware of that?

PN7

MR COOPER: Yes, actually I was advised of that, Deputy President, I apologise for not - - -

PN8

THE DEPUTY PRESIDENT: Good, okay.

PN9

MR R. FLANAGAN: For the Australian Workers Union, Tasmania Branch. Deputy President. I think that I appear in 1471 and I think and I seek leave to appear in 1264 but like Mr Cooper - - -

PN10

THE DEPUTY PRESIDENT: They are file numbers not dates, of course?

PN11

MR FLANAGAN: Matter numbers, matter number 1471 - - -

PN12

THE DEPUTY PRESIDENT: I don't think that was listed. They are both listed, I am sorry, go on.

PN13

MR FLANAGAN: Like Mr Cooper the difficulty the Tasmania Branch has with its appearance is that I only became aware of this matter when attending other matters in this Commission. I don't have a copy of the application to these matters and Mr Ponga has not been able to provide me before the matter came on, with a copy of those applications, so I would like some understanding of what I am appearing in and who the parties are.

PN14

THE DEPUTY PRESIDENT: We will provide you with a copy.

PN15

MR FLANAGAN: Thank you, Deputy President.

PN16

THE DEPUTY PRESIDENT: I don't expect an immediate response but can I say that we have notified both the Victorian and Tasmanian branches of the three unions, that being the AMWU, the AWU and the CEPU. We have telephone messages from most of the Victorian union officials. Of course they are not here. Not only do we have a crook airline service into the State but there is no way they could have got here by 5 o'clock today and the matter was listed at very short notice. However, I think as I am not too sure what it is all about either I think it might be a sensible move if we ask mr Ponga to outline what the application is about and what is the industrial action to which it refers and then we can all sort out where we go. Okay?

PN17

MR PONGA: Thank you. If the Commission pleases, in respect to Mr Flanagan's comments there I did this morning fax all the documentation that I presented today to the Commission to this office in Tasmania and also to the Victorian branch, to the State Secretary, Mr Shorten. The documentation also at 12 midday was issued under registration at the post office for delivery. If the Commission pleases, the project being undertaken by the company is the installation of the Tasmanian natural gas pipeline which commenced from Five Mile Bluff, Northern Tasmania on 15 December 2001 and it is to complete at Longford in Victoria.

PN18

The total distance to lay the pipeline is 310 kilometres. We are now at a point of 130 kilometres from Tasmania, almost half way. The purpose of the pipeline is of national importance and also important to the State of Tasmania in that the supply of natural gas will be an essential service to this State for industry and domestic use. In support of the facts in our application we have received formal notification from the Victorian branches of the Australian Workers Union, the Australian Manufacturing Union and the Electrical Trade Union that they have notified the Australian Industrial Relations Commission in Victoria to initiate a bargaining period in relation to the current off-shore project, the subject of a certified agreement.

PN19

We are of the view that the notice is in breach of the Workplace Relations Act. We are of the view that stop-work meetings that have occurred over a period of two weeks on the vessel, statements made by an official of the Australian Manufacturing Workers Union, the presence of an Australian Workers Union official attending a crew change at West Sale heliport today and distributing written material to personnel and the list of claims made in the unions notification to initiate a bargaining period clearly demonstrates the unions are engaging in industrial action for the purpose of or advancing their claims and seeking the ability to take protected action.

PN20

The project as mentioned is covered by a certified agreement namely the Tasmanian Natural Gas Pipeline Installation Project Agreement 2001. The agreement was negotiated in good faith by all parties hence the support by all parties to the certification of the document in the Commission on 8 November 2001 before Deputy President Leary. We believe that the notices from the union are a back door attempt to reopen negotiations, provide themselves under the notices with protective action, destroy the work that has been done and hold the project to ransom in pursuit of their claims. Clearly noticed and notified in their notification.

PN21

Stop-work meetings held to date on board the vessel have resulted in 15 hours lost time production where pipeline laying operations were being carried out. The operation of pipe laying operations - the operation of pipe laying has been subject to considerable weather down time and further down time of industrial nature will increase the operating cost substantially involving the operation of the pipe laying vessel, the operation of two support vessels, the operation of two cargo barges not to mention the potential liquidator damages that our client All Seas will suffer.

PN22

I have copies of the notices to initiate a bargaining period received from the unions. We obviously seek an order from the Commission under section 127(2) of the Act, if the Commission pleases.

PN23

THE DEPUTY PRESIDENT: The work that the Victorian unions are seeking an agreement to cover you are saying is the work covered by the agreement, the Tasmanian Pipeline Agreement?

PN24

MR PONGA: Yes, ma'am.

PN25

THE DEPUTY PRESIDENT: Because it talks about an agreement for all persons employed by the company at the Bass Strait site, what does that mean?

PN26

MR PONGA: The Bass Strait site I believe is the area that we are operating in and have been operating in and it is known as the Bass Strait between Victoria and Tasmania. It is a distance of pipe laying of 310 kilometres.

PN27

THE DEPUTY PRESIDENT: So it is the pipe laying in Bass Strait?

PN28

MR PONGA: Operation that we are currently doing, yes. The area from Tasmania is a 3 kilometre State area likewise from Victoria. Between the two States it is known as Commonwealth waters.

PN29

THE DEPUTY PRESIDENT: Because the scope of the agreement is the pipe vessel, Lorelay, in connection with or incidental to the installation of the Tasmanian natural gas pipeline, that is the work we are talking about?

PN30

MR PONGA: Yes.

PN31

THE DEPUTY PRESIDENT: All right. Okay. I don't know whether we are going to get very far today as the - first of all the Tasmanian officials have been with me what seems like most of the day so they wouldn't be aware of the notification until they got here and I don't know whether they are aware of what their Victorian counterparts are up to but we shall see where we go.

PN32

MR PONGA: Yes.

PN33

THE DEPUTY PRESIDENT: Okay, thanks.

PN34

MR FLANAGAN: Thank you, Deputy President. Deputy President, if I can respond to those matters. Firstly in respect to the proposition that the AWU has issued a bargaining notice, I have no instructions and no knowledge in respect of that matter.

PN35

THE DEPUTY PRESIDENT: Well, I can tell you there is one because it is attached to the application.

PN36

MR FLANAGAN: Yes. In respect to the proposition that an AWU official visited somebody or some people at Sale I am quite certain that no officials of the Tasmanian branch were involved in that but have no instructions as to the whereabouts of the Victorian branch officials. In terms of the proposition that the work in question that is involved in this matter is covered by the enterprise agreement, well, I am not quite clear about that. I understand there is an application to vary our agreement, the agreement between the Tasmania branch of the union for the Tasmanian pipeline, to vary that to include some unrelated matters from some off-shore oil platform and a pipeline for Esso but I am not quite sure how that is related to our gas pipeline that is a Duke pipeline so perhaps Mr Ponga can elaborate on that.

PN37

We also don't have any knowledge or understanding in relation to stop-work meetings on the vessel. We have requested the opportunity to attend and visit that work site and we were hoping that Mermaid would come back to us with some dates for that to occur and we raised this with Mr Ponga approximately maybe four, maybe five, maybe six weeks ago but as yet he has not come back to us with those details. In terms of loss of hours of work and other damages again I have no knowledge or instructions and again in terms of the work in question I think he would need to elaborate what he is talking about there because that is not quite clear but I think the other point that needs to be made is that when we had the discussion with Mr Ponga about arranging a site visit Mr Ponga at that point in time questioned us as to whether or not our view was that the agreement which applies to the natural gas pipeline owned by Duke would encompass the work of the oil platform in Bass Strait to Victoria.

PN38

We made it quite clear, I made it quite clear to Mr Ponga personally that the Tasmania branch does not and will not at any point in time become involved in work in Bass Strait in terms of pipe laying activities unless it starts from Tasmania and the agreement which is between the parties - the parties being the Tasmania branch of the AWU - does not seem to be the work that is at issue. It seems to me that there is some other work out there and what the employer may perhaps be attempting to do is confuse everyone, get it listed in Tasmania where the Tasmanian officials have no knowledge or instructions in respect of the matter and achieve some inappropriate outcome. If it pleases the Commission.

PN39

THE DEPUTY PRESIDENT: So generally speaking what you are saying is you have no idea what it is about?

PN40

MR FLANAGAN: Correct.

PN41

THE DEPUTY PRESIDENT: Okay. Thank you.

PN42

MR COOPER: Deputy President, if I may, with respect to the application my preliminary submission is that the application comes to the Commission very light on in terms of detail. There is no dates, there is no detail to those submissions for an order. In fact I don't think there's been sufficient information put to you today for the Commission to grant an order. I know the order is against the AMWU and I note that is against the - in terms of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of workers.

PN43

It has even got the names wrong, it is not even served properly in terms of the union, so it is inappropriate in that sense but I do note that if the parties that are notified in terms of the application also are branches of the union the union is registered in this Commission as a Federal union, it has one main branch and while I appreciate the expediency in which the Commission has acted in order to notify the people that the company alleged are involved in this, I do think there are some serious problems that present in any event.Now, what I am concerned about, Deputy President, is that - - -

PN44

THE DEPUTY PRESIDENT: I think what you are both saying is that there is no industrial action by employees covered by the pipeline agreement, if I could use the short-hand term, that you are aware of?

PN45

MR COOPER: Deputy President, to my knowledge that is not the - that is correct, to my knowledge. Now, a couple of things I think you need to be aware of too is it is all right to come here and make allegations on one part, there was an agreed procedure too in terms of this agreement and that agreed procedure was that the unions party to the agreement from the Tasmanian point of view anyway, officials that were designated responsibility, were provided with opportunities or going to be provided the opportunities to speak to people and that is workers engaged on the boat prior to departure.

PN46

To that extent the AWU and the AMWU both provided to the Lorelay before it departed an official for the purposes of that function - to carry out that function. That was to talk to our respective members, explain to them the terms and conditions of the agreement and make sure they understood it. Now both unions did that, the AMWU provided an official from Hobart to go to Bell Bay and that took the course of a day and ended up actually going over a night but the access to members was very limited and it wa snot in the structured manner in which it was advised to us that it would be carried out.

PN47

That was a huge problem. In terms of the allegations that my union has embarked on industrial action, I have no instruction on that and I don't necessarily accept the submissions of the employer that the Victorian branch of my union is now interfering with an agreement that is registered in Tasmania for the purposes of the Tasmanian Natural Gas Project and I think that is evidenced in the further confusion that has been created by unilateral application to vary an agreement to cover another job and I think we need to talk about that as well.

PN48

THE DEPUTY PRESIDENT: Well, yes.

PN49

MR COOPER: I think we need to - - -

PN50

THE DEPUTY PRESIDENT: I think the two are related - - -

PN51

MR COOPER: I agree.

PN52

THE DEPUTY PRESIDENT: - - - and Mr Ponga can explain that.

PN53

MR COOPER: There is some rights that unions have in any event, Deputy President.

PN54

THE DEPUTY PRESIDENT: Yes, you have got a couple left.

PN55

MR COOPER: Yes, we have got a couple left and there was a recent Federal Court decision from Kenny J on 6 February 2002 and the reference of that is FCE 61, so it is a Federal Court decision of SM West Products and the AMWU 2000. My knowledge of that application and outcome is limited; my briefing in that respect has been very short but I do understand that that, notwithstanding the allegations that have been made here, that decision does allow the union for a right to bargain over issues not contained therein in any event. Now, without making any further submissions on that - - -

PN56

THE DEPUTY PRESIDENT: It calls into question the whole no-claims provisions in agreements.

PN57

MR COOPER: That is the point that I think has been the thrust of my submissions. But notwithstanding any of that, I don't think there is sufficient information here in terms of what has been put - notwithstanding the procedural fairness that hasn't been afforded to all the parties to have their right to be heard which is another - - -

PN58

THE DEPUTY PRESIDENT: That is my responsibility.

PN59

MR COOPER: Yes, I understand that - I understand that but it is a significant point especially when individuals from branches in Victoria have been named and the order itself may be deficient - notwithstanding anything. There is no evidence here to suggest that the submissions of the employer are in fact occurring, other than submissions from the bench. I am not in the position to corroborate, deny or support that evidence so in that regard it is very - I think it is a very big ask for the Commission to step from being told - at the submission from the bar table to grant to the request - - -

PN60

THE DEPUTY PRESIDENT: Well, you know my view about section 127 applications anyway.

PN61

MR COOPER: Deputy President, I do. My first submission - - -

PN62

THE DEPUTY PRESIDENT: You should have had a feeling for that this afternoon.

PN63

MR COOPER: Well, as I advised the Commission in an earlier matter, the Tasmanian situation is one where 127s are a rarity. In fact we have only ever dealt with two in the whole time that I have been an official in Tasmania and they have both been today and they have both been related to the gas project and I think the first one was dealt with appropriately and hopefully that will be resolved. This one - I think my initial submission would be the Commission should dismiss it and it should come back properly before the Commission. Subsequent to that I would suggest that all the parties to this application should be given an opportunity to be heard which would, by its very submission, require an adjournment of this matter and notice to be served on all parties so they can have an opportunity to be heard.

PN64

And in any event I think the sensible thing to do, notwithstanding all of that, is for the Commission to direct Mermaid Labour to properly consult with the unions that are named to sort out the issues that are alleged to be the cause of this dispute and in that regard my submission to you is significant. But I have for sometime, since before December, advised Mr Ponga on the Lorelay, before it departed, of an issue that came to my attention that would be worthy of his consideration in respect to the agreement that we had registered. I also advised Mr Rick De Frank, who is another director of that company, of those concerns and they had agreed to meet me. Unfortunately an industrial dispute prevented me meeting Mr De Frank and that was some two or three weeks ago.

PN65

I subsequently phoned the Mermaid office in Hobart and asked if I could arrange another meeting with Mr De Frank, to be told he would be in Hobart the following week. I was subsequently advised by the Hobart office that he was in Western Australia - he wouldn't be coming back but Mr Ponga was on shore. So I subsequently rang and asked if I could meet with Mr Ponga and they said well he was obviously very busy but I did catch up with him on his mobile last Thursday. I said, "Mr Ponga, there are some problems. I think we need to talk about them," and he refused to meet me on that day to discuss those issues. He has refused me this afternoon to be taken to the boat to talk with our members about these issues and so his actions by themselves are precipitating a resolution to what he claims to be a dispute and I don't think the Commission can act in isolation of those submissions.

PN66

They are real and I am prepared to testify to them and there are issues that need to be sorted out. Notwithstanding that, I think we should sort them, but I don't think a 127, order in the way that it has been framed today, is the appropriate way to move forward. So I reaffirm my initial submissions - the application in itself should be dismissed for a number of reasons. In the alternative, the matter should be adjourned or in the alternative the Commission should direct the parties to have discussions so we can actually understand what is going on. If the Commission pleases.

PN67

THE DEPUTY PRESIDENT: It seems to me that if there is industrial action it is generating out of Victoria and it may be more appropriate that the matter be heard in Victoria. But I am happy to hear your response to the submissions of the two unions and then what I would suggest we do is go into conference and have a look at both the notifications and see how we deal with them. Because if there is industrial action that needs to be addressed in some way.

PN68

MR PONGA: Thank you. The Commission pleases. I do have copies here available for the officials of the notices that I have received from their appropriate unions.

PN69

THE DEPUTY PRESIDENT: These are the 170 MI notices, are they?

PN70

MR PONGA: Yes.

PN71

THE DEPUTY PRESIDENT: The bargaining period?

PN72

MR PONGA: Yes. If the Commission pleases, I appreciate that this application has come on at short notice. However, I think that we all are aware of the limited period when an application is made under the bargaining period of the protection of protected action and we have been served with documentation. I have written to the three unions in Victoria seeking some information as to the relationship between the current certified agreement covering the Tasmanian work and also the notice to initiate a bargaining period. I have not received any correspondence from those three unions - the information was faxed and also mailed to the unions. The only correspondence was a telephone call from a representative claiming he is a Mr Greg Warren who is acting now as the manager of this matter, having been appointed by a Mr Craig Johnson.

PN73

THE DEPUTY PRESIDENT: So is he from the AMWU?

PN74

MR PONGA: AMWU Victoria.

PN75

THE DEPUTY PRESIDENT: And what is his name?

PN76

MR PONGA: Greg Warren.

PN77

THE DEPUTY PRESIDENT: Greg Warren.

PN78

MR PONGA: Mr Warren's statements are very similar to my statement in our application. Firstly, that the notice under 170 in respect to the initiation of bargain period does apply to the current certified agreement and the current project.

PN79

THE DEPUTY PRESIDENT: He said that?

PN80

MR PONGA: He said that to me and I am quite willing to give that in appropriate quarters as evidence. He also made a statement that the current Tasmanian Natural Gas Pipeline and Certified Industrial Agreement is a scab agreement and it was - - -

PN81

THE DEPUTY PRESIDENT: What does that mean?

PN82

MR PONGA: I am not sure but the word scab is - - -

PN83

THE DEPUTY PRESIDENT: I thought you might understand.

PN84

MR PONGA: I am familiar with scab - - -

PN85

THE DEPUTY PRESIDENT: Yes, so am I that is why it doesn't seem to make much sense.

PN86

MR PONGA: Those were his words not mine. He also sought to have a copy of the potential earnings related to this project and this certified agreement which I have provided by fax - again, I have still not heard any response from the three unions' Victorian branches in respect to my correspondence seeking clarification of what the notice involves or represents other than, as I have just said, what Mr Warren has said to me on the telephone.

PN87

THE DEPUTY PRESIDENT: Is it your understanding that what is being put to you is that the Victorian branch or branches are seeking another agreement over and above the current agreement that is applying to the pipeline?

PN88

MR PONGA: Yes, my understanding is that the union have, in the documentation, served a log of claims on us which they want related to this current project and the certified agreement covering this project.

PN89

THE DEPUTY PRESIDENT: Even though there is a certified agreement in place?

PN90

MR PONGA: That is right. We believe, obviously, that this action is in total breach of the Workplace Relations Act. We are seeking an order, a 127, to either stop or prohibit any action of an industrial nature and protection of the certified agreement. Now, I would like to go on and I heard Mr Cooper say such things as, "We have had talks." Yes, we have had talks and as an example Mr Cooper, on board the vessel when he visited Bell Bay prior to the mobilisation of the vessel on 15 December, did present me with a document which referred to the West Kingfish Project which involved a company called Co-Flex Stennor in Bass Strait, related to a pipeline called the Black Back Project.

PN91

In that document Mr Cooper referred to the fact that there were other pay rates and that we should consider the pay rates. The document he presented to me had new pay rates in there written by free hand - it was not part of the document. I have since spoken to one of the parties involved in the negotiating of that document for the ESSO Project, which is approximately two years old. His name is Mr John Flood, he is the State Manager of the West Australian office of Australian Mines and Metals. Mr Flood tells me, and I believe it to be correct, that the duration of the Kingfish Project was six weeks.

PN92

The company that was contracted to do the work was actually on site when a dispute erupted after an explosion at the ESSO Longford Gas Plant. There was industrial disputation - there were strikes, if you like; there were shut downs and this particular project where the employees working on the Co-Flex Stennor vessel were actually on personal contracts with the company - individual contracts. They were not under an industrial agreement. There was an agreement negotiated and that agreement was for the duration of the project which was a total of six weeks. It does not make sense nor is it logic that there would be rates in the document to apply 12 months after the project. It just doesn't make sense. If you were looking at a three-year enterprise bargaining you could understand the rate increase every 12 months but not on a document that had a life of six weeks and a project that had a life of six weeks. Now, I have spent some time on this project off shore and unfortunately I am not contactable and my relief, Mr Rick De Frank, did serve in the office. Mr De Frank did serve in the office. Mr De Frank was approached by Mr Cooper in relation to these rates and the statement being made at the time on 15 December to me by Mr Cooper and also to Mr De Frank was by Mr Cooper, "Hey, there should have been another 4 per cent on this job." Well, I think I told Mr Cooper the time, "Hey, we've just given you 8 per cent on the last known rates of that Bass Strait agreement."

PN93

On Thursday last week we had received the notification from AMWU when Mr Cooper rang me. I told Mr Cooper in relation to those rates that he claimed were in the document that (a) the document was not a registered document in the Commission, we had no access to any other information other than the actual document we were in possession of. Secondly, the employer's representatives deny that there was ever a 4 per cent added on for 12 months for the life of the agreement that was only six weeks old and was only going to be used for six weeks. I am also advised by the employer representatives that that document had a so-called industrial fence built around it, and we know what they are like. That that document would not be used in any future negotiations of any project.

PN94

Unfortunately the Bream Platform project industrial agreement likewise had that statement in it by the unions and also it appears that the Kingfish document mirrored that document which was negotiated in 1986 and since then there have been a number of off-shore agreements relating to Bass Strait but it appears that the Kingfish agreement related to substantial payments out of the Bream A Platform agreement. Now, I am not trying to demonstrate that we have avoided the unions and their visits off shore. Actually, we should all be aware that in a one-helicopter situation with crew changing, approximately 210 people per month, this is a difficult exercise in itself as far as Mr Flanagan when we discussed his visit off shore, he wasn't too interested in flying in a helicopter and preferred a supply vessel. At the moment it is a 30-hour trip one way. I don't know if Mr Flanagan is still prepared on a supply vessel, approximately three and a half thousand ton, that travels out to the site. As I say we are 130 kilometres from Tasmania at the moment.

PN95

We are not stopping the officials of Tasmania visiting the vessel. However, we believe it is inappropriate at the moment, the fact that we are under notice, and we are seeking a 127 order, to have, if you like, the right to exercise, as Mr Greg Warren said to me, the right of entry under that protected action. I can understand that the Victorian representatives of the unions nominated here are concerned or may not have been advised, I can understand that. I am surprised because there is one organisation that for some reason the Victorian branches haven't seen fit to advise their Tasmanian counterparts of the intended action they have initiated and the activities going on off shore.

PN96

Under our disputes procedure and the current certified agreement, I have attended last week off shore three meetings with personnel and the delegates nominated by the personnel off shore, also Mr Rick De Frank the previous week also attended a number of meetings on board under the disputes procedure and of the in-house and under the disputes procedure we were able to resolve a number of those issues. The disputes procedure is in the agreement and it is clear that at some stage when the employee has a right to call on the union. There are one or two issues that we were not able to resolve. I made available the opportunity, there were communications there. The person I will provide a number of phone cards at company cost to make calls and at the last meeting I held on the vessel last Wednesday was a vote from the membership on board, and that is all the crew, that they did not want a Tasmanian official present. They did not want the attendance of a Tasmanian official from any of the unions and that if anything they requested the attendance of a Victorian union official.

PN97

I told the meeting, which was attended by 87 of the individuals on board, represented by the three unions, that we were not in a position to invite the Victorian unions onto the project and on my departure from the vessel, the two delegates, AMWU representatives, advised me that they no longer wished an AMWU Victorian branch official to visit the site. That they had had a conversation with an AMWU Victorian official and the matter would be resolved in a few days time.

PN98

THE DEPUTY PRESIDENT: Which was the matter that was going to be resolved?

PN99

MR PONGA: Two issues under the disputes procedure - - -

PN100

THE DEPUTY PRESIDENT: These were domestic issues, were they?

PN101

MR PONGA: These were domestic issues. At the end of the last meeting we had on board under the disputes procedure, the delegates advised me that the union was going to take industrial action. Now, I do not know whether it was the Victorian branch, I am assuming it is the Victorian branch because these meetings continue to refer to the Victorian branches. The two delegates did advise me that they would be seeking a number of benefits from the Kingfish Industrial Agreement as a flow-on to this current project. The comments and statements made by those two delegates after a vote of personnel on board that we will get this project and we will get ESSO. That ESSO have a bag full of money and we are quite prepared to give ESSO a thrashing.

PN102

THE DEPUTY PRESIDENT: What have ESSO got to do with the natural gas pipeline?

PN103

MR PONGA: Well, insofar as we have provided, if you like, a variation to the current agreement there is a project coming up behind the Tasmanian project called the Bream A Pipeline Project. It is approximately 45 kilometres from the Bream platform to Longford and at the time we talked to the Tasmanian unions in June we referred to that project which was at a tender stage at that stage, so there had been no award. The awarded contract has been made to all seats for this project. Consequently All Seas currently hold the letter of intent, which they have not signed as yet because of the industrial action that has commenced off shore in relation to the Tasmanian pipeline.

PN104

THE DEPUTY PRESIDENT: But the industrial action seems to be more to do with the Bream Longford pipeline, is it?

PN105

MR PONGA: The current industrial action is occurring on the Tasmanian pipeline, the Duke Energy project.

PN106

THE DEPUTY PRESIDENT: To soften you up for the ESSO contact?

PN107

MR PONGA: I think so. That is - again, I am not pre-empting the Victorian unions but as I say, they are - the Victorian/Tasmanian unions are the same organisation, national organisation. We have the application before us.

PN108

THE DEPUTY PRESIDENT: It doesn't mean they all act the same way.

PN109

MR PONGA: It is directed towards us, this current project, and we are seeking an order accordingly to avoid any industrial disputation off shore in this current project.

PN110

THE DEPUTY PRESIDENT: So what is happening at the moment, is there any current industrial action?

PN111

MR PONGA: The only, what I term industrial action, is the AMWU official from Victoria, Morwell, Mr Terry Lee, presenting himself at the heliport in West Sale in Victoria, distributing documentation to the maritime union personnel, who are quite upset because the log of claims that have previously come from the vessel that were relating to domestic issues, there were three log of claims and also incorporating the claim that all members of the construction fraternity off shore will be joining the Maritime Union of Australia. After the Maritime Union of Australia notified the members off short that their actions were not sanctioned by the MUA nor were they welcome by the MUA, the third log of claims that came in over three days from the vessel had deleted the issue in relation to entitlements and benefits and the fact that everyone wanted to join the MUA.

PN112

THE DEPUTY PRESIDENT: It sounds very confusing.

PN113

MR PONGA: It is confusing and we have lost considerable down time, 15 hours of stop-work meetings. We believe, because nothing else tells us anything different, that the Victorian branches are certainly initiating some action.

PN114

THE DEPUTY PRESIDENT: Well, they have served notices on you?

PN115

MR PONGA: Yes.

PN116

THE DEPUTY PRESIDENT: Have they served notices telling you that they are going to take action at a specific time as they are required to do?

PN117

MR PONGA: We haven't had any three days notice, in particular with Mr Lee appearing at the heliport this morning and distributing information which we are trying to seek to get hold of as to what he has provided - - -

PN118

THE DEPUTY PRESIDENT: I am sure that shouldn't be too difficult.

PN119

MR PONGA: Yes, we are hoping to get a copy tonight but I am hoping that perhaps Mr Flanagan could give us a copy. It is his union that have issued it and I am sure he will co-operate and give me something in the next few hours.

PN120

THE DEPUTY PRESIDENT: I am sure that both Mr Flanagan and Mr Cooper will co-operate but they seem to be totally in the dark as to what is going on.

PN121

MR PONGA: I would like to say to the Commission that we negotiated the certified agreement in good faith with these individuals and we all stood here at the time we applied for registration saying - - -

PN122

THE DEPUTY PRESIDENT: The difficulty is, of course, that there is no industrial action, if indeed there is any industrial action, at the moment. But there is no probable industrial action or possible or pending authorised by the Tasmanian officials under the terms of the EBA. Now that is correct, is it not?

PN123

MR PONGA: Yes, that is correct.

PN124

THE DEPUTY PRESIDENT: And Mr Cooper is in the same position?

PN125

MR FLANAGAN: Definitely, that is the position, Deputy President, if we are not wanted out there, how are we going to tell them to do anything.

PN126

THE DEPUTY PRESIDENT: Well, I know that does nothing for the ego, but - - -

PN127

MR PONGA: I wanted to take Greg for a cup of coffee and tell them that, but there you are I am happy - - -

PN128

THE DEPUTY PRESIDENT: It is now on the public record and he is going to have to live that down.

PN129

MR FLANAGAN: I presume I don't need to worry about the helicopter flight then either.

PN130

THE DEPUTY PRESIDENT: No, I suppose it is your lucky day. It seems to be that the Victorian officials are driving whatever action is taking place and that is the difficulty I have. Natural justice requires that the be given an opportunity to defend their position and that is a logistical difficulty at the moment. But do I understand you correctly to say that at the moment there has been 170 MI notices served on you. There has been no notice that says to you that there will be industrial action within 72 hours or whatever.

PN131

MR PONGA: No, Ma'am.

PN132

THE DEPUTY PRESIDENT: Okay.

PN133

MR PONGA: We would - I hear Mr Cooper requesting an opportunity of an adjournment whether that is for further instructions or from his Victorian branch or that the matter moves to Victoria, however, our position is that we are seeking this order to avoid industrial action or disputation. It is also clear in the Act that after a period of notification it may be felt that there is the opportunity for protected action, but we see and we believe that the applications and notice of bargaining is directed at this current project in a certified agreement.

PN134

THE DEPUTY PRESIDENT: That is the difficulty that I am having. I don't know whether it is because the notices certainly are non-specific. They just talk about wanting to negotiate an agreement. One of them, I think, that referred to the Bass Strait project which seems to be this Kingfish to Longford - not Kingfish, Bream is it, Bream Platform. Bream to Longford pipeline which has got nothing to do with the Tasmanian natural gas pipeline.

PN135

MR PONGA: Yes, and you are referring to which part, please?

PN136

THE DEPUTY PRESIDENT: One of the notices - was it the ETU one?

PN137

MR FLANAGAN: Yes, it was.

PN138

THE DEPUTY PRESIDENT: Yes, it talks about the Bass Strait project.

PN139

MR PONGA: I have written and faxed the letters last week to the three unions asking for them to confirm to us or tell us or - - -

PN140

THE DEPUTY PRESIDENT: What it means.

PN141

MR PONGA: What it is and what scope of work the application for initiation bargaining period relates to. To date we have had no correspondence from them. We have had no reply from the unions other than Mr Greg Warren, representing the AWU Victoria Branch - AMWU sorry, saying that it is in relation to the current project, that it is in relation to the current certified agreement which he referred to as a scab agreement, in my mind there is no doubt that as the representative and as he has told me on the phone, he is the manager of this current action on behalf of the union, in my mind there is clear evidence that it relates to the current project.

PN142

THE DEPUTY PRESIDENT: I don't know. Presuming he made those comments I have to say that I don't know what they mean and he may put whatever name he likes to the certified agreement.

PN143

MR PONGA: Yes.

PN144

THE DEPUTY PRESIDENT: That is his business, but it is a legally binding document, so he can't just dismiss it unilaterally like that.

PN145

MR PONGA: That is the reason we are seeking an order, but Deputy President, I am quite happy to give that evidence if it is necessary, of the phone conversation - - -

PN146

THE DEPUTY PRESIDENT: Yes.

PN147

MR PONGA: - - - if that would support whatever - - -

PN148

THE DEPUTY PRESIDENT: I don't know where it is going to take us, but I have got some difficulty issuing any orders without the Victorian officials. First of all being in a position to respond to your questions, what is it all about; and the second thing is they haven't served any notice that there is industrial action to take place and they have got to give you three days notice of that. I would presume that if they are serious about what they are doing they will comply with the requirements of the Act. I don't know whether we can advance any further on this 127 application but it may be of value if we go off the record and talk about the other application to see where they are all going because I think there is a relationship there, and Mr Cooper is chomping at the bit to say something.

PN149

MR COOPER: Deputy President, if I may. Look, I don't intend to rebuff everything that Mr Ponga has said and there certainly is room for us to do that. Suffice to say I want to clarify one point in terms of the evidence provided by Mr Ponga in terms of the initiation of bargaining period, and if I can refer the Commission specifically to the notice under the hand of Craig Johnston who is State Secretary for the Victorian branch. I think as you have said, and comments can be alleged to have been said or attributed to any one official, but that notice is very clear in its direction, and I think it is not available for Mr Ponga to say that the comments of Mr Warren, or any other official of the AMWU and I can confirm Mr Warren is an official of the AMWU.

PN150

THE DEPUTY PRESIDENT: You do know Mr - - -

PN151

MR COOPER: Yes, I have spoken to him about 15 minutes ago.

PN152

THE DEPUTY PRESIDENT: Okay.

PN153

MR COOPER: That notice is very clear - - -

PN154

THE DEPUTY PRESIDENT: "Not covered by a current certified agreement."

PN155

MR COOPER: "It is not covered by a current certified agreement or it is covered by a certified which is past its normal expiry date," and it goes on. Very clear in that notice what the - it is not open for Mr Ponga to make submissions here today. The AMWU is doing anything other than it is allowed to in accordance with the Act for the purposes of reaching a certified agreement.

PN156

THE DEPUTY PRESIDENT: Well prima facie, that is what it says.

PN157

MR COOPER: Prima facie, that is correct.

PN158

THE DEPUTY PRESIDENT: There seems to be some muddying of the waters, there is no pun intended there, that there is the agreement that covers the Tasmanian gas pipeline. Mr Ponga is of the view that the industrial action or proposed, perceived, perhaps, industrial action is related to that. The notices of bargaining period talk about work that is not covered by a certified agreement and one of them also refers to this Bass Strait site.

PN159

MR COOPER: Yes, that is correct.

PN160

THE DEPUTY PRESIDENT: So that is why I am confused that it may be something different and that is why it would be unfair and improper for me to seriously consider a 127 application without giving those officers the opportunity to put their position. That would also clarify for the company's purposes just what it is all about. But a 127 is a very serious application. It has pretty savage repercussions to those named, although there is nobody named in this one, it is everybody.

PN161

MR COOPER: Nobody named. It is a general - I think it is a general order in this way to stop all industrial action from tomorrow until the next day and for thereafter.

PN162

THE DEPUTY PRESIDENT: And it is very broad, so we would need to look at some specifics, but that is not going to stop, or solve the issue because if what is taking place is action to pursue a certified agreement for people not covered by a certified agreement, or work not covered by a certified agreement it may well be protected action. So it is a really murky quagmire that I am trying to sort my way through. That is why perhaps if we go off the record, the unions may be able to provide some more light. It is sometimes easier in conference as to where we are going, and then we can decide what we do with both the 127 and the MD application.

PN163

MR COOPER: And that obviously would not alter or affect our rights to make further submissions?

PN164

THE DEPUTY PRESIDENT: No, no that is fine. No, no, this is just to try and explore some options and some further progress. Are you happy with that?

PN165

MR PONGA: What I would like to add is if what we are talking about is work not outside of the current certified agreement we can live with that, but as I say the actions to date don't indicate that and the correspondence we have received and requested is still not received. Obviously everyone was quick off the mark to send us registered letters of notice, but not too quick to respond to a request, our written request as to what the scope of work we are talking about.

PN166

THE DEPUTY PRESIDENT: Yes, that is how it goes, of course. But the notices of initiation of bargaining period do talk about work not covered by a certified agreement, do talk about the Bass Strait site. Now, it is not clear in my mind what both of those circumstances have to do with the Tasmanian Natural Gas Pipeline Agreement and whether it is work outside that agreement. So that needs to be clarified because 127 orders as you well know can be enforced in the Court and the resulting orders can be pretty devastating to those that they are served on, so I have got to be very careful what we do with it. But that doesn't mean we ignore the fact that there is a problem, and I don't propose to do that.

PN167

MR PONGA: Well, maybe I could suggest that the Tasmanian branch seek clarification as well because they are parties and respondents to a certified agreement from their Victorian counterparts.

PN168

THE DEPUTY PRESIDENT: Yes.

PN169

MR PONGA: Clearly, if there is - it does relate to this project and the certified agreement we are going to be back here tomorrow.

PN170

THE DEPUTY PRESIDENT: And if they have been saying nasty things about them, well, they have every right to seek clarification.

PN171

MR FLANAGAN: Deputy President, for our part we don't have any objection to going into private conference, but I think for the purposes of the record there is a few things that need to be said. Firstly, if Mr Ponga has been corresponding with the Victorian branch of the union about difficulties in relation to the actions of Victorian officials, then in our view as a matter of natural justice, those officials ought to be participating in these proceedings. Not officials from a branch which prior to you providing us with the documentation which is partial documentation, is completely unaware of what is or is not going on, on this vessel and what it is or is not connected with. I think that for Mr Ponga to ask us to provide him with documentation is a bit rich.

PN172

THE DEPUTY PRESIDENT: I think he is asking if you can clarify what the issue is.

PN173

MR FLANAGAN: Well, the answer to that is very simply, no, we can't clarify it.

PN174

THE DEPUTY PRESIDENT: You can't.

PN175

MR FLANAGAN: Because we don't know and perhaps all of this charade could be put aside if Mr Ponga would actually ring our Victorian official that he is complaining of, I think, Mr Lee, and have a talk to him and try and sort it out, if it pleases the Commission.

PN176

THE DEPUTY PRESIDENT: All right. Well, we will go off the record because we need to look at the other application that is before me anyway and I think it is better if we do that off the record to start with.

ADJOURNED INDEFINITELY [6.00pm]