C2002/1367, Transcript of Proceedings [2002] AIRCTrans 948 (26 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2002/1367

CALTEX AUSTRALIA LIMITED

and

AUSTRALIAN WORKERS' UNION,
AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION, AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING AND
ALLIED SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99
of the Act of a dispute re allocation
of work to employees at Lytton Refinery

BRISBANE

8.40 AM, FRIDAY, 8 MARCH 2002

PN1

THE COMMISSIONER: Yes, can I have the appearances, please?

PN2

MR M. COONAN: If the Commission pleases, I seek leave to appear on behalf of Caltex. With me I have MR RICHARD GILBERT and MR RICK HEINKE, may it please the Commission.

PN3

THE COMMISSIONER: Yes, thanks, Mr Coonan.

PN4

MR B. SWAN: If it please the Commissioner, Swan, initial B, for the Australian Workers Union. With me I have MR FOSTER, initial H.

PN5

THE COMMISSIONER: Yes, thanks, Mr Swan.

PN6

MR B. CARDINAL: Commissioner, Cardinal, initial B for the AMWU. I have also with me KEN SMITH from Caltex.

PN7

THE COMMISSIONER: Yes, thank you. Any objection to Mr Coonan's appearance?

PN8

MR SWAN: No, Commissioner.

PN9

THE COMMISSIONER: Yes, thank you. Yes, leave to appear is granted, Mr Coonan.

PN10

MR COONAN: Thank you, Commissioner.

PN11

THE COMMISSIONER: Yes, Mr Coonan.

PN12

MR COONAN: If the Commission pleases, on behalf of Caltex the dispute notification was issued yesterday afternoon. As indicated in the notice the dispute revolves around an indication - sorry, information provided to Caltex by its employees that they would refuse to do certain work which the company has directed them to do. Essentially, the issue is this, Commissioner: maintenance at the refinery is shared by Caltex direct employees and by Transfield contract employees. Transfield contract employees are purportedly on protected industrial action, at least until next Tuesday. That action commenced on Wednesday of this week.

PN13

At the time the action commenced there were a series of tasks that were being carried out by Transfield employees. Those tasks, and I will come to then in a second, were in the company's view, critical to the continued safe and productive operation of the plant, and they sought, they wished the employees to carry out that work. The employees' response was that the work involved had been started - sorry, if the work involved had been started by Transfield employees it would not be finished by Caltex employees. Any new work, however, would be carried out by Caltex employees, so there was no objection to that.

PN14

With respect to the employees involved, Commissioner, it is not acceptable to the company. There are in particular four main tasks where work is critical to, as I say, continued operation and safe operation of the plant. The four areas are these: first of all, on the wharf, there are some minor works to be done on the wharf, and that is necessary so that a ship can dock tomorrow, I think at about 2 am. That ship will be taking product to the southern market, and will result in shortage of the southern market petroleum product from my client, and for its suppliers if this ship is delayed. In addition to that, there is of course, demurrage costs that are approximately $2000 per hour for each hour the ship is delayed.

PN15

There is some flow-on from simple delay of the ship as well. I have mentioned, as I say, the product loss, but in addition, the flow-on effect is this: that the product which goes out is currently in storage. If we can't move that product from storage then we have got to slow down production elsewhere in the refinery because there is no storage space available, so there becomes a product supply issue that becomes a storage issue and there also then will be a slowdown in production which will directly affect Caltex workers as well.

PN16

In addition to that, there is some work on the reformer. The reformer has been opened and purged of nitrogen to change the catalyst. If that work is not completed then there are a number of problems. First of all, the catalyst itself may be damaged if we don't shut the whole unit down, which again has flow-back effects into production. In addition to that, the net gash recovery unit cannot operate functionally, and that means additional product has to be flared off at the considerable loss, six-figure loss per day, as well as the additional damage in having to flare off additional product.

PN17

In addition to that, cracker rates by about day three if we have to shut down, the cracker rates will be reduced, and by day four all production rates will be significantly reduced, if not stopped in some areas. The next area of work is in relation to the solvents unit. There is major maintenance being carried out on the solvents unit. If it is not completed there won't be enough stock to meet production commitment, and if we don't get that fixed up, then again product grade will be reduced, and again additional or, a factional cost to the company.

PN18

The final key area of work is in relation to the electrical tower - sorry, cooling towers. At the moment one cell is on maintenance. That maintenance has almost been completed and a return line needs some minor repairs before it can be completed. The return line is, as I say, a minor part. What is more important is that scaffolding has been left in situ on the cooling tower and because of that scaffolding unit it is preventing access to other parts of the cooling tower. At the moment the cooling tower can operate with one cell down, however if whether it heats up, if the cloud cover dissipates, then there will be severe pressure on the cooling tower and there is already one unit which is showing stress and needs preventative maintenance now.

PN19

In summary, Commissioner, there are a number of tasks which the employees have refused to carry out. Those four main ones, as I say, are the ones that are critical to the company. The company has notified the Commission of a dispute under section 99. As I say there were talks yesterday with the employees and their advice was that they would not simply at the company's direction, solely at the company's direction, carry out that work. So it is on that basis that we agreed that we would notify the Commission of this dispute.

PN20

Commissioner, we did this as a section 99 matter, not as a section 127 order on the basis that we think the matter can be resolved in due course, and Mr Swan has suggested as well that we might go into conference to discuss the matter. But if I just put on record that if the matter cannot be resolved we are formally seeking orders under section 111.1(t) of the Workplace Relations Act. And that, sorry, is a direction, not an order. A direction by the Commission that the employees carry out the work as directed by the company. And we're in the process of preparing a draft directions order to that end. That's all I have to put on the record, Commissioner. And, as I say, it would be our suggestion that we move into conference in short time. Is there anything the Commission seeks from me? That's all I have at this stage.

PN21

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

PN22

MR SWAN: Commissioner, the difficulty that I'm faced with is this. That upon being notified firstly of the existence of the dispute and secondly being notified that the matter had been listed before the Commission I attempted to get in contact with the AWU District Secretary concerned, Frank Chambers. I was unable to do so until approximately 8.15 this morning. Commissioner, I'm bereft of any explicit detail with respect to the dispute at hand. I would suggest at this stage that it might be appropriate that the Commission adjourn into conference so that issues can be explored a bit more frankly and with a view to looking at whether anything can be resolved out of this particular matter, if it pleases.

PN23

THE COMMISSIONER: Thank you. Yes, Mr Cardinal.

PN24

MR CARDINAL: Yes, Commissioner, I concur with Mr Swan in those regards. I think we should go to a conference and see if the problems can be resolved. I would like to point out, though, Commissioner, we were also only notified of this - well, I personally was only notified of this late yesterday afternoon and I'm the actual organiser that looks after that particular site. I do have a problem that the disputes procedure was not - well, actually not followed as per their agreement and I'm a bit amused - bit amazed that the company seeks to go straight to the Commission without following the procedures set out in their certified agreement.

PN25

THE COMMISSIONER: Can you just tell what aspect of the disputes procedure wasn't followed?

PN26

MR CARDINAL: Well, basically, Commissioner, the steps - in their actual agreement it actually quite clearly says that the grievance procedure will be outlined as in the award. My understanding of that is that if there's a problem arises on site the management will seek to get that solved with the employees. If that is not resolved then the organiser will be contacted and that will be actually meet with management and then if after that stage - if it escalates or it's ratcheted up, they would seek the Commission to intervene.

PN27

THE COMMISSIONER: So you're just saying you haven't had an opportunity to discuss it with them as yet?

PN28

MR CARDINAL: Not at all, not at all, Commissioner. The first I was notified was actually by fax from Freehills and I'd just like to point out that, you know, if the disputes procedure is in the agreement we're normally the first ones dragged in here for not following them and I'm just amazed that - - -

PN29

THE COMMISSIONER: I agree, yes.

PN30

MR CARDINAL: All right. Okay.

PN31

THE COMMISSIONER: No, I agree. Yes, Mr Coonan, what do you have to say about that?

PN32

MR COONAN: If the Commission pleases, our position is this; that the grievance procedure was implemented. We did have discussions - after the discussions between the employees and managers there was discussions between the industrial and management people from the company and the delegates. At that meeting it was agreed that this was a process that would best be pursued; that we should notify the Commission.

PN33

THE COMMISSIONER: Did that include the AMWU delegate?

PN34

MR COONAN: Yes, it did, Commissioner.

PN35

MR CARDINAL: Commissioner, all I can say is I'm unaware of that and Mr Coonan has the actual agreement in front of him and if - if there's a step in that agreement that says that the union officials should be contacted I feel that's exactly what should have happened and we might have had this solved without having to come here today.

PN36

THE COMMISSIONER: I accept your point. Mr Coonan, on that basis is there any point in perhaps you having discussions with the union officials briefly now before the Commission becomes involved? The Commission should not - doesn't condone - even though it may be agreed at other levels I think the organiser should have at least been given some opportunity - or an official of the union as opposed to simply the delegate. I'd certainly like to see you at least try that briefly and if that doesn't succeed then you can advise the Registry and I'll come and be involved, but I would like to see that disputes procedure followed strictly rather than in an ad hoc manner.

PN37

MR COONAN: I take your point, Commissioner. I was quickly trying to look it up. I thought there was an escalation provision in any case but I'm happy to have a chat with the - - -

PN38

THE COMMISSIONER: I think if you briefly discuss it and, as I say, I can come back shortly whenever you're ready.

PN39

MR COONAN: Yes, Commissioner.

PN40

THE COMMISSIONER: The Commission will adjourn briefly. Just before I go, are we likely to need to go on the record after conferring?

PN41

MR COONAN: There's a possibility. If we have to move to a directions order, Commissioner, then there's a distinct possibility of that.

PN42

THE COMMISSIONER: All right.

SHORT ADJOURNMENT [8.57am]

RESUMED [9.18am]

PN43

THE COMMISSIONER: Yes, gentlemen?

PN44

MR COONAN: If the Commission pleases, at your request we did have a discussion at organiser level. Nothing has changed from what we told yesterday, with respect, Commissioner. The conversations with Mr Cardinal or Mr Swan haven't reached any outcome at all, and we would like to proceed at this stage.

PN45

THE COMMISSIONER: Yes, Mr Swan?

PN46

MR SWAN: Commissioner, I have had an opportunity to confer with the company and also for the union officials and representatives to confer amongst themselves. There are some things that should be recorded. Commissioner, the first is that there is no dispute that undertakings had been given by members of the AWU and the AMWU with respect to the progression of work that has not already been undertaken. It is also not in dispute that members of the AWU and, as I understand it, the AMWU have undertaken work to ensure that the site or the work left by Transfield employees who are under protected action is safe; that is that the areas are safe.

PN47

It should be noted, Commissioner, and it is agreed, that for some considerable period of time, upwards of 18 months, members of the AWU and the AMWU subject to this dispute, there has been an industrial arrangement on site where their work is principally revolving around the rotation, it is called rotation work as opposed to static work, which is the work that Transfield employees were undertaking. Now, the requirement of the company for members of the AWU at least to undertake work outside of the parameters of the agreed arrangements, - again, agreed arrangements that have existed for some considerable period of time, is not tolerable from our members' perspective, Commissioner, because it flies in the face of the arrangements that have been made.

PN48

The last thing, Commissioner, that should be said is that in this union's view, and I would understand in any union's view, it is an impermissible situation and a wholly untolerable situation for any industrial unionist who has any measure of intestinal fortitude to seek to undertake work that others have refused to do for lawful and protected reasons, such as the Transfield employees.

PN49

THE COMMISSIONER: But what are the Transfield employees trying to achieve?

PN50

MR SWAN: Well, they are under enterprise bargaining negotiations, as I understand. Well, those negotiations have broken down, they are taking protected action to advance their claims with respect to their prospective employment arrangements. It should be said that the AWU members employed directly by Caltex support them to the hilt, 100 per cent, and - - -

PN51

THE COMMISSIONER: I think there are some problems under the Act, isn't there, with employees of yours supporting employees of another employer over enterprise bargaining.

PN52

MR SWAN: Commissioner, those are the submissions that we make with respect to the matter. We don't have any further submissions to make.

PN53

THE COMMISSIONER: Yes, thank you. Yes?

PN54

MR CARDINAL: Yes, Commissioner, just in regard to that last comment, when we quite clearly state, and we don't retract that statement that our members employed by Caltex fully support Transfield in their endeavours to reach a reasonable outcome in their negotiations. When we talk of support that the Caltex workers are giving the Transfield workers we are directly referring to moral support, not industrial action support. We are quite aware of the legislation with regards to secondary boycott action and things of that nature.

PN55

I would like to state also, Commissioner, that we believe that the company has chosen an option which is obviously - which they haven't given it much forethought, because basically what we are saying, Commissioner, if the company is trying to get these ships out on Saturday, for example, and they are using their employees to do the work, or those that are currently taking protected industrial action, that protected industrial action hopefully will end one day, one day soon, and those workers will return to site and then there could be some disharmony on actual site in regards to working alongside people that undermined their lawful protected action.

PN56

We feel that there are other options open to the company. In fact before the company actually stated that there were other options available to them, we are not aware of those other options, but we quite clearly stated the option that the company has taken at the moment is not the correct one. We feel that there is a general understanding on site that - and the company is aware of the general understanding because they participated in the actual coming to that arrangement, but the Caltex employees primarily do the rotating work and the Transfield/contractors do the static work; they are now being asked to do the static work. Their last agreement was negotiated 14 months ago, and that was the position of the employees or management at the time; that Caltex people do the rotating work and Transfield do the static work.

PN57

THE COMMISSIONER: Does the agreement actually state that?

PN58

MR CARDINAL: No, it doesn't actually state that, Commissioner, not words to that effect, no. So we would strongly oppose the Commission recommending that Caltex workers actually are used to basically undermine the protected action of Transfield workers. And I will leave it at that.

PN59

THE COMMISSIONER: Do you have any view now in light of the discussions you have had consistent with the grievance procedure that is there any merit in having any conciliation conference involving the Commission, or do you feel the parties have exhausted that avenue themselves?

PN60

MR CARDINAL: I feel we have exhausted that - our position is quite clear, Commissioner. Obviously we are also talking from a principled point of view, and those principles are unwavering in that we have got currently members of our taking lawful protected action and the company is seeking to use their employees to undermine that protected action.

PN61

THE COMMISSIONER: Yes, I understand.

PN62

MR CARDINAL: And we feel that will actually cause more industrial relations headaches down the track. And that is what we are trying to fly from.

PN63

THE COMMISSIONER: I understand what you are saying, yes, okay. Mr Swan, I should put the same question to you then in terms of whether you agree with te metal workers that there is no point in any further - - -

PN64

MR SWAN: We agree with the metal workers, and we would simply state that the positions of the respective parties are irreconcilable, Commissioner.

PN65

THE COMMISSIONER: Yes, okay. Yes, Mr Coonan?

PN66

MR COONAN: Well, if the Commission pleases, then on that basis we would press the Commission to issue directions. If the Commission pleases, I would like to give some short submissions in that regard now. We have a draft order - sorry, directions that we would like to tender. May I approach the Bench?

PN67

THE COMMISSIONER: Yes, okay. Thank you. In your submissions, will you be addressing the issue of what has been described as the practice, at least since the last agreement, in terms of employees doing the static or rotating-type work? Will you be addressing that issue?

PN68

MR COONAN: I will, Commissioner. If need be, I'll ask Mr Gilbert to explain in more detail, because he might have more information on that than me, but I will address that in broad terms. Commissioner, just preliminary on that point, though, is - our position is that, as was considered by Mr Swan and certainly Mr Cardinal, that the certified agreement and the award make no distinction between work which is static and work which is rotating. In fact, the award requires the employee to do any work - clause 11(1)(iii) of the award, which is picked up by the certified agreement, states that:

PN69

An employee's rate of pay comprehends all that which is contained in the job description ...(reads)... might be required of any tradesman or labourer, or tradesman's assistant, engaged at the refinery.

PN70

Similarly, the certified agreement makes no such distinction. As Mr Cardinal has indicated, there has been not an acknowledgment, but certainly a practice that originally the crews were in both Caltex static crew and Caltex rotating crew. On the static crew, if I'm correct, occasionally Transfield staff were augmenting that crew. Over time, that became mainly a Transfield crew in operation. But that is nothing more than an augmentation of labour. Commissioner, I think the distinction here we need to understand is that we don't accept, as Mr Cardinal and in fact Mr Swan suggest, that this is "a person owns this work." With respect, Caltex owns the work. Caltex is directing employees to carry out that work.

PN71

THE COMMISSIONER: Wouldn't any direction, then, need to refer to the description you've just given of the classification of the employees, as opposed to just their skills, capabilities and experience, etcetera?

PN72

MR COONAN: Well, Commissioner, if it pleases, I would say that skills, experience and capabilities would pick up classification, but - - -

PN73

THE COMMISSIONER: Well, are you saying, then, that employees may be asked to do more than what their current classifications provide?

PN74

MR COONAN: Yes. I'm instructed, Commissioner, there is no need for that. I'll just take instructions. Yes, with respect, Commissioner, as I say, the award says that once you're in a classification you do all jobs which are within the lawful instructions, but I am instructed we would be happy to use the word "within classification" in the directions order.

PN75

THE COMMISSIONER: Well, in terms of your proposal, anyhow, yes. Well, I think someone should look at that while I hear what else you have to say. Yes, go on.

PN76

MR COONAN: Commissioner, yes. As to why the Commission should grant the order - as we say, there are two primary reasons. The first is, as Mr Cardinal has pointed out, this is not moral support. It is not a situation of the employees giving their moral support to other employees. I think that the case for both of the unions is indicted by their own admissions that they are refusing to do this work because these employees are unprotected in industrial action.

PN77

Now, with respect, I agree with the intimation you've made that that has some ramifications for the Transfield work, and no doubt we'll look at that in due course. But what is clear in respect of this work is that it is not protected industrial action, it is contrary to the award and the certified agreement, and as I say, clearly now we are advised that this action is taken solely on the basis of giving support to workers who are allegedly unprotected in industrial action.

PN78

With respect, when one runs all the tests on the Coal and Allied case and the CSR case and the National - I'll leave it with those two cases anyway, Commissioner. What is involved in here is work or industrial action which is entirely contrary to the provisions of the Act and, in the sense indicated in those decisions, is not conscionable industrial action. The second reason why we seek the orders is - and I tender to the Commissioner an affidavit of Mr Richard Gilbert. Can I approach the Bench again, please?

PN79

THE COMMISSIONER: Yes.

PN80

MR COONAN: I seek leave to file and read the affidavit, if the Commission pleases.

PN81

THE COMMISSIONER: Yes. We'll mark that exhibit C1. It's taken as read.

EXHIBIT #C1 AFFIDAVIT OF MR R. GILBERT

PN82

MR COONAN: Thank you, Commissioner. The affidavit essentially, Commissioner, puts evidentiary material behind the submissions we have made that there are serious business ramifications for the company in the work being refused by the employees concerned. Damage will occur. I have already taken you through the ramifications for the plant in relation to the cracker - sorry, the reformer, the cooling tower and the solvents unit. In addition to that, there is the pure monetary loss which arises in relation to the ban on the work on the wharf.

PN83

Mr Cardinal is correct. The company has other options. Its other option is to, as the work reduces, start reducing its workforce. That is not a palatable option for the company and, with respect, it shouldn't be for the union and certainly not for the employees. We submit that it is entirely proper and conscionable that the Commission issue the directions that the employees perform the work which the company requires them to do. That is all I have at this stage, if the Commission pleases.

PN84

THE COMMISSIONER: Yes, thank you.

PN85

MR SWAN: Commissioner, two short things in response. The first is with respect to the directions at - well, with respect to those directions that are sought, we object in its entirety and we rely upon our previous submissions to the Commission. Directions or recommendations of this Commission with respect to this matter are not warranted in this case, but should the Commission be disposed to issuing directions, the following points should be noted.

PN86

The first is that at point 2, where reference - if reference is to be made to skills, capability and experience within classification, there should be a rider on that, that that classification is in accordance with the relevant award or certified agreement.

PN87

The second area of objection relates to point 3 of the directions, that is, that the direction remain in force for a period of six months. In anyone's language, Commissioner, that is manifestly excessive and it is excessive because the action of employees by Transfield is unlikely to progress beyond six months, but more importantly, if one turns to point 4 of Mr Gilbert's statement, one notes that there is to be a meeting of Transfield employees on 12 March 2002. Now, we don't know what the outcome of that meeting is going to be, but in all probability, in all possibility, employees of Transfield may agree to return to work and undertake work as directed by Transfield in accordance with Transfield's contract with Caltex. That is the first point.

PN88

The second point is if you refer to paragraph 7 of Mr Gilbert's statement, there is a reference to the undertaking of work to be - or the undertaking or the completion of work by Caltex employees on or before 8 March 2002. Now, on its face, it is palpable that the work envisaged and the work that is subject to this dispute that is to be completed, will not progress beyond 12 March. It is work that, on the face of the documents, are to be completed on or before 8 March, so what we would be saying is that with respect to point 3 of the directions sought, those - the timeframes for any directions, if they're issued, should not exceed 12 March 2002. With respect to leave to apply, we would press that leave to apply should be made for either party, not simply the notifier of the dispute. If it turns out, on 12 March, that Transfield employees are still out under protected action and are not undertaking work, then it may well be that the company can seek the assistance of the Commission again.

PN89

But the point of it is, Commissioner, that the employees of Caltex have given a commitment to undertake new work as directed, outside of the work that was left over by Transfield employees. We're only talking about those four principal items that have been referred to by Mr Coonan and by Mr Gilbert in his affidavit, Commissioner. So the orders - there is no logical or rational or reasonable basis for the orders to progress beyond 12 March at this stage, if it pleases.

PN90

THE COMMISSIONER: Yes. Thank you.

PN91

MR CARDINAL: Yes, Commissioner - I would also like to quite clearly state on record that we don't believe a direction should be granted at all on the basis that we don't believe our members are actually engaging in industrial action. They are currently agreeing to do the work which they are normally employed to do. They're - all they're doing at the moment is - they've been asked to do work which is normally outside their general work that they actually do. So we don't believe our members are actually engaged in any sort of action which would require a direction for them to do so.

PN92

Also, I concur that if a direction was given - and I'd like to state again that we strongly would oppose a direction given - that six months is absolutely ridiculous, to say the least, to put a blanket timeframe on it for six months when the industrial action being carried out by Transfield at this stage, as far as the companies are concerned and the employees of Transfield are concerned, ends on Tuesday morning.

PN93

There is the meeting that will take place on Tuesday morning as referred to in this. We'll meet again on 12 March as clause 4 of the affidavit states. I was actually involved in the actual meeting that took place, Commissioner, where the workers decided to take the protected action and it was already agreed at that meeting that they will return to work as normal on Tuesday. Now, I can't give assurances that at some time Tuesday, you know, a stop work meeting might take place and those workers decide to go again.

PN94

I can't do that but neither can - neither can the company. And I think six months is actually ridiculous when we know that the industrial action will, in its first instance, end Tuesday morning. Keeping in mind, Commissioner, that Monday is a rostered day off for both Caltex employees and also the Transfield employees.

PN95

THE COMMISSIONER: Yes, thank you. Yes, Mr Coonan.

PN96

MR COONAN: If the Commission pleases, with respect any argument that either union might have had that the six month term was inappropriate has just been destroyed by Mr Cardinal. He has made an omission that anything could happen Tuesday and thereafter. If the Commission pleases, it's also obvious from their own statements that the ban which is in operation was also not limited to this current strike. Both unions have said that the ban will be in relation to any work which is started by Transfield employees and which is not finished by Transfield employees. No limit has been placed by them on the duration on which this industrial action will take place - well, in fact, is taking place.

PN97

THE COMMISSIONER: How long would it take to complete the type of work you've been describing anyhow?

PN98

MR COONAN: If the Commission pleases, there are - we've highlighted four jobs in which - - -

PN99

THE COMMISSIONER: Yes, I'm conscious of that and I'm very familiar with chemical industry type operations.

PN100

MR COONAN: Yes, Commissioner. And there's 20 other jobs which have been started which at the moment aren't crucial, but I will just - - -

PN101

THE COMMISSIONER: I'd be highly surprised if the plant was down for six months with that sort of jobs to be done in any way, shape or form.

PN102

MR COONAN: Yes. Well, if the Commission pleases, I've been informed that the remaining work - sorry, the work which Transfield has started which might remain to be completed could take up to two weeks - a week to two weeks. The wharf work needs to be done certainly by 2 am tomorrow - by 2 am tomorrow morning. The other jobs are a week to two weeks in length. I'm also advised, Commissioner, that the reformer work is urgent as well.

PN103

THE COMMISSIONER: Yes.

PN104

MR COONAN: In relation to the matter raised by Mr Swan, I'm, as I said, instructed by my client that we're happy to use the words in number 2, direction number 2, that we insert - before the word "skills" insert the words "award classification". But I make that clear, if the Commission pleases, with respect, that that's not to bring about a whole new debate about the breadth of this direction. That's not to bring about the debate about whether static work or rotational work falls within or without a person's job classification. And we say - we make specific represent to the award classification.

PN105

I also make it clear, and it's been pointed out to me again by Mr Gilbert, that in respect of most of this urgent work in any case there is no cross-over because in all out of hours work there is no differentiation by Caltex employees between rotational work or static work. There is no issue about what might or might not be the common practice about splitting up rotation and static work. As far as out of hours work is concerned the practice has always been there is no break-up.

PN106

If the Commission pleases, I would again encourage and submit that the Commission should issue the directions on the basis that we've sought and as amended with those words "award classification". May it please the Commission.

PN107

THE COMMISSIONER: Thank you. Yes, the Commission has had the opportunity to consider the submissions in this matter. There is, in the Commission's view, an industrial dispute involving the AWU and AMWU between themselves and Caltex Refineries Queensland Limited. There is no protected industrial action with respect to it. Caltex employees are giving what the unions have termed "moral support" to employees of the contractor, Transfield, who are taking what is apparently protected industrial action in support of their negotiations for a certified agreement.

PN108

That is a matter between Transfield and its employees. While the Commission understands the unions' submissions that the course of action proposed by the employer may create future industrial relations difficulties it is nevertheless in accordance with the Act inappropriate for Caltex employees to be taking any form of industrial action during the life of their agreement inconsistent with section 4 definition of industrial action in the Act. The Commission, in accordance with section 111.1(t), orders as follows:

PN109

(1) The employees of Caltex Refineries Queensland Limited employed at the Lytton Refinery undertake all work in accordance with their award or agreement classification, skills, capability and experience as directed by Caltex.

PN110

(2) This direction shall remain in force until 22 March 2002.

PN111

(3) Leave to apply on short notice is granted to any party.

PN112

The final recommendation will be released to the parties. The matter stands adjourned.

ADJOURNED INDEFINITELY [9.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #C1 AFFIDAVIT OF MR R. GILBERT PN82