C2003/72, Transcript of Proceedings [2003] AIRCTrans 1516 (24 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS


O/N WT0146
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER O'CONNOR

C2003/72

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Consolidated Constructions Pty Ltd re alleged
unprotected industrial action at the Gosnells
Civic Complex Project

PERTH

2.20 PM, TUESDAY, 8 APRIL 2003

PN1

MR A. L. DRAKE-BROCKMAN: I seek leave to appear with my learned friend MR JACKSON for the applicant, Consolidated Constructions Pty Ltd.

PN2

MR T. KUCERA: I also seek leave to appear for the Construction, Forestry, Mining and Energy Union.

PN3

THE COMMISSIONER: Right, thanks.

PN4

MR KUCERA: Yes sir, while on my feet, I am actually going to move to request this application be dismissed pursuant to section 111(i)(g). Sir, the reason why I am making the application is, there is a certified agreement that presently applies between the respondent and - or between the CFMEU and Consolidated Constructions Pty Ltd. The application states, sir, that the reason for the industrial action - - -

PN5

THE COMMISSIONER: Just a minute.

PN6

MR KUCERA: Sorry sir, the reason for the application stated at paragraph - - -

PN7

THE COMMISSIONER: Hang on. Go on.

PN8

MR KUCERA: It is at paragraph 5 on page 3 of the application sir, and it talks about current industrial action.

PN9

THE COMMISSIONER: What are we looking at?

PN10

MR KUCERA: Page 3 of the application by Gaydons Lawyers sir.

PN11

THE COMMISSIONER: And at paragraph what?

PN12

MR KUCERA: Paragraph 5, where it is under the heading: Current Industrial Action.

PN13

Consolidated Constructions Pty Ltd has been advised by Joe McDonald that the reason for the industrial action was as a result of there being no labour on site and a site allowance.

PN14

In relation to that sir, there is a present certified agreement that applies between Consolidated Constructions and the CFMEU as I earlier said. I just wish to hand up a copy of that agreement, because it is going to become relevant, I think, as we go along. Clause 3 of the agreement sir, says:

PN15

The agreement shall be binding on Consolidated Constructions Pty Ltd, hereinafter referred to as "the company", and the Construction , Forestry, Mining and Energy Union of Australia, WA branch, and on all employees of the company eligible to be members of the unions employed on building projects.

PN16

The agreement contains provisions that relate to site allowances. It says, site allowances at clause 11, which is on page 4 of the agreement:

PN17

Site allowances are to be paid in accordance with the site allowance formula as set out in clause 4 of the CCABTA Building Industry Site Allowance Agreement, as amended from time to time with agreement by all parties.

PN18

It also talks about application of project agreements, but nothing in that clause, in a sense, precludes this agreement from applying to the project which is presently the subject of this dispute. And then most significantly sir, at clause 17, there is a dispute settlement procedure - dispute avoidance and settlement procedure. There is two issues that are referred to in this application. The first issue is the claim for a site allowance for employees. There is one contractor on site that is presently paying the site allowance, that is MRF Formwork. The other contractors on site are not paying a site allowance.

PN19

The other issue relates to the employment of a site labourer, a Mr Simon Butler, and Simon Butler, has been engaged by the - by the company through Troubleshooters. A company that is not respondent to any industrial agreements, and a company that pays all up flat rates. Mr Butler is presently receiving $23 and hour. I am instructed sir, that the issue was first raised with the respondent as early as the 11th - as sorry, Mr Butler commenced at the site on 11 March, and he advised the union on 10 March, that he had been approached by Consolidated Constructions to work there through Troubleshooters.

PN20

On Tuesday 18 March, or Wednesday 19, it was at thereabouts 18 March, this issue and the non payment of site allowance was raised with Stuart Noblett, and I am instructed that there be evidence from Mr Molina to that effect. More significantly sir, on 4 April, which was last Friday - - -

PN21

THE COMMISSIONER: What was the date in March, Tuesday the what?

PN22

MR KUCERA: 18 March 2003. More significantly sir, Mr Molina attended the site again on Friday 4 April, with Mr Cavanagh from the union, and they raised both issues with Mr Butler, both the payment of the site allowance and the employment of Mr Butler. And the position was essentially this, the union sought the payment of a site allowance in accordance with the agreement that it has with the company, and the union also sought to have Mr Butler employed directly through the company, rather than through a body hire agency of Troubleshooters.

PN23

I am instructed sir, that a commitment was given that that issue would be raised with the company. What happened was, at the end of work on Friday 4 April, Mr Butler, was dismissed and that was the reason for the industrial action that followed on Monday 7 April. Our submission sir, is that the application should be dismissed because, firstly, the party to the industrial dispute has breached an award of the Commission - or an order of the Commission - or a certified agreement of the Commission, which is section 111(i)(g)(v)(a).

PN24

In any event sir, we would submit that even if there was not a breach in respect of site allowances, there is certainly an issue that has been raised, an opportunity given to the company to fix it and - under the dispute resolution procedure and then conduct by the company, which is I suppose, in breach of that procedure. Significantly sir, the dispute resolution procedure provides that:

PN25

Where there is no agreement between the parties, the matter would be referred to the West Australian Industrial Relations Commission.

PN26

And whilst we recognise this Commission's ability to resolve matters of this part, the agreement that has actually been entered into between the parties, provides that those issues should be dealt with somewhere else.

PN27

Section 111(1)(g)(2) provides that:

PN28

The industrial dispute or part is being dealt with, or is properly be dealt with by a state industrial authority is a ground for dismissing the application.

PN29

We would say that this is an issue that could have been dealt with through the disputes procedure, had it not been for the conduct of the company in moving to dismiss the employee while the matter was being progressed. Additionally sir, in relation to 127 matters, in the case of Coal and Allied Operations v the AFMEPKIU and others, when the Commission framed its final orders, exempted from the section 127 orders were - we might just go there, and it was referred to in the framing of the order, at page - just bear with me for a second I had it and then I lost it. At 3 - page 347 of the decision which is reported at 73 IR 311, the decision was delivered on 20 June 1997, sir. Exempt from the section 127 order that was framed by the Industrial Relations Commission was:

PN30

Action that is directly, reasonably and proportionately related to an action or decision by the company about the work or conditions of an employee, that is an action or decision taken in a manner that is not substantively, or procedurally fair and reasonable, or that does not result in full compliance by the company with the dispute settlement procedure set out in clause 21 of the award.

PN31

What we say, sir, is this is an exact - this is an exact situation as this. The issue had been raised with the company, the company reciprocated, but it was not in a manner that was consistent with good industrial relations practice, it was a move to dismiss the employee. And we would say that the action was taken in response was, I suppose, in response to a reciprocal breach of a dispute resolution procedure. The opportunity had been given to the company to fix the issue, the issue was not fixed, rather the company exacerbated the dispute.

PN32

In relation to action that has taken place today sir, at the Sheraton Apartment Project. It is our submission that that is a continuation of the reciprocal breach of the disputes procedure. What happened was - is that the company sought today to, I suppose, exacerbate the difference between the parties, by bringing replacement work force onto the site to perform work that ordinarily would have been performed, had the employees been at work and not on strike.

PN33

All of which we say leads sir, to a situation where this matter could have been resolved without the necessity for industrial action. However the company, I suppose, is a master of its own destiny and brought this action upon itself. But, we would say sir, that the company has not come to the Commission with clean hands and accordingly we would submit that your discretion should be exercised to dismiss the application pursuant to the provisions of the Act. That is all I have to say by way of opening sir.

PN34

MR DRAKE-BROCKMAN: Commissioner, I think this fellow Butler, has not been and is not an employee of Consolidated Constructions Pty Ltd. So, therefore the certified agreement could have no application, because the certified agreement in terms of clause 3: Parties and Persons Bound:

PN35

Disagreement shall be binding on Consolidated Constructions Pty Ltd, hereinafter referred to as "the company" and the Construction, Forestry, Mining and Energy Union of Australia, WA branch, hereinafter referred to as "the unions" and all employees of the company eligible to be members of the unions employed on building projects.

PN36

So, Butler, is not an employee of Consolidated Constructions, in fact I am instructed that Consolidated Constructions have not contracted with Troubleshooters in relation to Mr Butler. In fact the main contractor, Deckmil Pty Ltd, had contracted with Troubleshooters in relation to Mr Butler's employment - - -

PN37

THE COMMISSIONER: Who is the main contractor?

PN38

MR DRAKE-BROCKMAN: Sorry, the head contractor is Consolidated and their main contractor on the site is Deckmil. Deckmil had engaged Troubleshooters to employ Mr Butler. And obviously his work is no longer required at this stage. There is no suggestion of him being dismissed. We are talking about the construction of the Gosnells Civic Complex project. It is a small project outside of Perth, in fact in the outer suburbs of Perth. It is a rather small project compared to most of the projects that occur in Perth.

PN39

So (a) he is not an employee, or was not an employee of Consolidated Constructions and (b), he was not even employed by someone contracted to Consolidated constructions. He, as I understand it was employed by Troubleshooters, who were contracted to Deckmil Pty Ltd, and - so there is no application of the certified agreement to that situation. And to suggest that Consolidated have not acted in good faith is really short of the mark, it is not a matter in which they are directly involved - - -

PN40

THE COMMISSIONER: Has Consolidated got any employees?

PN41

MR DRAKE-BROCKMAN: Not at this stage, not at Gosnells no.

PN42

THE COMMISSIONER: So there cannot be an industrial dispute between you and the union can there?

PN43

MR DRAKE-BROCKMAN: No, that is right, but Consolidated bring this application, pursuant to 127, on the basis that the employees of the contractors are in main part - the contractors are parties to the National Building Trades Award, or in the case of Kone Elevators, their work is covered by a certified agreement, so - - -

PN44

THE COMMISSIONER: Why can't they bring their own applications?

PN45

MR DRAKE-BROCKMAN: Well, they haven't chosen to do so at this stage, Consolidated are the ones that are suffering the loss, because no work is being carried out on their site - - -

PN46

THE COMMISSIONER: But, you are not even the prime contractor are you?

PN47

MR DRAKE-BROCKMAN: No, sorry, Consolidated is the head contractor. Consolidated have the contract with the Gosnells - - -

PN48

THE COMMISSIONER: Well, who is Deckmil?

PN49

MR DRAKE-BROCKMAN: Deckmil is a contractor to Consolidated, as are Kone Elevators, Midland Brick and various others. Well, it is similar to the situation up in Murrin Murrin, where various contractors affected by industrial action, brought their proceedings, as they are entitled to under section 127. I will just go to that section.

PN50

THE COMMISSIONER: So you are telling me there is no work being carried out on the site?

PN51

MR DRAKE-BROCKMAN: No, there is - if I can just summarise for you. There is industrial action by the CFMEU by way of strikes or non performance of normal work at the Gosnells Civic Complex project, and today at the Sheraton Apartment Site. There is threatened industrial action by the CFMEU in relation to all consolidated projects throughout Australia. As I said, the industrial action commenced yesterday at Gosnells and the CFMEU mentioned no labour on site - no labour on site, site allowance and their EBA negotiations with Consolidated Constructions - I think that is probably what this is really all about.

PN52

The industrial action at Sheraton Apartment site commenced today, and that was allegedly because a contractor - one of the contractor's at Gosnells is working, and it is alleged that some of that contractor's employees are non union employees. So, in terms of the industrial action at Sheraton, it is a classic secondary boycott that - that is being carried out by the CFMEU, against Consolidated Constructions Pty Ltd. All of the industrial action is unprotected. The contract at Gosnells is - is, is a small job and it - it is a job that is - you know, in the outer suburbs of Perth, it is a Civic Complex. It might be big, certainly for the Gosnells Town Council, but it is certainly a small job for Consolidated. They are the head contractor, they are organising building the Civic Complex - - -

PN53

THE COMMISSIONER: Some of the civic complexes are like the Taj Mahal around the town.

PN54

MR DRAKE-BROCKMAN: Yes, I think this is a pretty modest one though. I think it is only two stories. In terms of the EBA negotiations, you need to know that Consolidated had agreed to an interim payment for all the employees at the Sheraton site, and the CFMEU had indicated that, in return for that, they would try to reach an agreement with Consolidated Constructions. In relation to the EBA, Consolidated sent a schedule of the areas of difference that they had with the CFMEU. And as recently as 27 March, the CFMEU responded with a request for a marked up copy of the CFMEU draft January document, and in turn - - -

PN55

THE COMMISSIONER: What do you mean a "marked up - - -

PN56

MR DRAKE-BROCKMAN: Well, to - with all of the changes suggested by Consolidated Constructions, there was some dispute about e-mail versions of the CFMEU draft January agreement - that has been resolved. And as of yesterday, all of those changes, as marked up have been sent of to the CFMEU. But on Friday, Consolidated were told that unless they signed an earlier document - the CFMEU draft November document that all hell would break loose by way of industrial action. And just in passing, it seems that - the, it is actually the CFMEUW that want only a state EBA, not a certified agreement. So, which ever way you look at it, as we speak, the CFMEU are not genuinely trying to reach agreement in relation to a certified agreement under the Federal Act.

PN57

So, Consolidated bring their application today, and I have filed an amended application to include the - which I have sent to you and given a copy to my learned friend - filed an amended application to include the Sheraton Apartment site. So, the position is that in relation to the Gosnells site, at this stage Consolidated Constructions Pty Ltd have no direct employees, but they are a person - pursuant to section 127(2)(b):

PN58

A person who is directly affected, or is likely to be directly affected by the industrial action.

PN59

So, they have standing to bring the 127 application, in relation to Gosnells. In relation to the Sheraton Apartment site, they have direct employees and they are a party to the certified agreement - the Consolidated Constructions Pty Ltd CFMEU Collective Agreement 1999. So, they have standing in relation to both aspects of the industrial action, and Consolidated Constructions Pty Ltd seek an order pursuant to section 127. They do not see this as a dispute about an employee of Consolidated Constructions at all, because there is no such person at Gosnells, and there never has been. They see this really as something like is directly - or certainly at least collaterally, related to the EBA. Albeit that the EBA sought - is an EBA sought by the state CFMEU, even though Consolidated Constructions Pty Ltd would prefer to have a certified agreement of this Commission.

PN60

So, that is the nature of the - of the matter before you, and I would call - I would be in a position to call Stuart Noblett, who is the person - Consolidated's Project Manager down at Gosnells Civic Complex, who can verify all of these matters for the Commission. And we have also provided to the Commission a copy of Mr Noblett's statement, together with - and I think we have provided a copy to my learned friend - I don't know whether you have that sir, I will hand that up?

PN61

THE COMMISSIONER: Mr Noblett's statement, yes.

PN62

MR DRAKE-BROCKMAN: Yes.

PN63

THE COMMISSIONER: Well, before I hear from Mr Noblett, I will need you to demonstrate to me that the work is work that is governed by an award or a certified agreement, because obviously it is not governed by your certified agreement?

PN64

MR DRAKE-BROCKMAN: Yes well certainly for starters, the work at the Sheraton Apartment site is governed by a certified agreement. In relation to Gosnells - and this can be dealt with in the evidence, in relation to Gosnells, there are contractors on the site and of those contractors, J. P. Barnes Contracting and Midland Brick, are named parties to the Federal Award - and I have got a list of respondents here. And in addition Kone Elevators - Kone Elevators are a party to a certified agreement. So, the work of their employees - - -

PN65

THE COMMISSIONER: Does the union have any bargaining periods with any of these companies in respect to agreements?

PN66

MR DRAKE-BROCKMAN: As far as I know, no.

PN67

THE COMMISSIONER: Well, how far do you know?

PN68

MR DRAKE-BROCKMAN: Well, I have no information that they have bargaining periods with them. I have no information that there is any protected industrial action sought against them. And in the case of Kone Elevators, there - they have got a certified agreement. In the case of J.P. Barnes and Midland Brick, they are parties to the Federal Award. And there is - the industrial action that is occurring - - -

PN69

THE COMMISSIONER: I would have thought companies of that magnitude, if their employees take industrial action, would make their own applications?

PN70

MR DRAKE-BROCKMAN: Well, if - if they know that the head contractor, Consolidated Constructions, is entitled to bring an application, and entitled to orders under 27 has brought an application - - -

PN71

THE COMMISSIONER: Well, we don't know that yet.

PN72

MR DRAKE-BROCKMAN: Sorry?

PN73

THE COMMISSIONER: We don't know whether you are entitled to orders under - - -

PN74

MR DRAKE-BROCKMAN: No, no, but if they know that Consolidated Constructions Pty Ltd has made an application, then it is a matter for them whether they bring their own section 127 applications.

PN75

THE COMMISSIONER: After all it is their employees that are taking the industrial action, not the employees of - well the industrial action, not employees of Consolidated Construction.

PN76

MR DRAKE-BROCKMAN: No, because at Gosnells they have no employees, but the person affected by that industrial action is Consolidated Constructions Pty Ltd. They have the head contract with the Gosnells Town Council and they are the ones suffering - certainly suffering loss.

PN77

THE COMMISSIONER: In response to the union's approach in relation to site allowances, as contained in the Consolidated Construction Certified Agreement, you say that Consolidated Construction Certified Agreement does not apply, so site allowances don't apply, is that what you are saying?

PN78

MR DRAKE-BROCKMAN: Well, as I understand it, given the size of the job usually, you know, site allowances would not be necessarily applicable anyway. And I don't think the - I think the position of Consolidated is that they always talk these issues through with the union and they - as far as they know, they have certainly been prepared to do so. At this stage they have no direct employees and so the site allowance does not apply to the direct employees, because there are none.

PN79

THE COMMISSIONER: Well, according to Mr Kucera, they raised the question of site allowance on 18 March.

PN80

MR DRAKE-BROCKMAN: Well there are certainly

PN81

THE COMMISSIONER: In relation to clause 11 of that agreement.

PN82

MR DRAKE-BROCKMAN: Yes, but that would only apply if Consolidated Constructions Pty Ltd had employees who were bound by the certified agreement. At - at the moment that is not the case. I don't think that provision can in any way require Consolidated Constructions Pty Ltd to organise on behalf of subcontractors a site allowance. I mean, to a very large extent that is a matter entirely between the subcontractors and their employees on the one hand and the subcontractors and the union on the other. I mean there has been - it is quite clear that Consolidated can't enforce anything upon the contractors.

PN83

THE COMMISSIONER: No, that is why we need the subcontractors here, if it is a question of site allowance for the subcontractors, is that the case Mr Kucera?

PN84

MR KUCERA: Absolutely sir, because as I outlined in my opening, there is one contractor who is paying a site allowance and a number of other contractors who aren't. I might also say sir, that in relation to the applicable award, particularly in respect of what is occurring at Gosnells, J.P. Barnes Contracting - - -

PN85

THE COMMISSIONER: Hang on.

PN86

MR KUCERA: Midland Brick - - -

PN87

THE COMMISSIONER: J.P. Barnes, yes.

PN88

MR KUCERA: Midland Brick and Kone Elevators, the three contractors referred to by my friend, are not even on the project yet. So, those employees are not actually involved in industrial action as such.

PN89

THE COMMISSIONER: All right.

PN90

MR KUCERA: So, if the award - if - - -

PN91

THE COMMISSIONER: Well, who is involved, do we know?

PN92

MR KUCERA: Yes, as I understand it sir, MRF - - -

PN93

THE COMMISSIONER: MRF yes, who are they?

PN94

MR KUCERA: They are a formwork company. G.S.N.C. Normaton Concrete - - -

PN95

THE COMMISSIONER: G.S. - - -

PN96

MR KUCERA: N.C. Normaton Concrete - - -

PN97

THE COMMISSIONER: GSNC, is that - - -

PN98

MR KUCERA: Yes - - -

PN99

THE COMMISSIONER: What, G.S.N. - - -

PN100

MR KUCERA: Yes, yes, I only have the abbreviations sir.

PN101

THE COMMISSIONER: C, what contractor?

PN102

MR KUCERA: G.S.N.C. Normaton they are called.

PN103

THE COMMISSIONER: Like Normaton, Queensland?

PN104

MR KUCERA: N-o-r-m-a-t-o-n, Normaton Concrete. And that is all that I understand sir, are presently involved in - in action.

PN105

THE COMMISSIONER: So, they are the persons involved?

PN106

MR KUCERA: Yes sir.

PN107

MR DRAKE-BROCKMAN: And - and certainly, given what Mr Kucera has said, there is an industrial dispute between the union and those subcontractors, whether they are covered by a Federal Award, or a certified agreement or not. And in relation to Gosnells - in relation to Gosnells - - -

PN108

THE COMMISSIONER: How - an industrial dispute between these parties, has there been a dispute found?

PN109

MR KUCERA: Well, we would be submitting sir, that it is incumbent upon the applicant to demonstrate that there is an industrial dispute within the meaning of the Act.

PN110

MR DRAKE-BROCKMAN: Well, we have just been told that - that the CFMEU are in dispute with these contractors on the site, in relation to a site allowance, and that is their reason for taking industrial action.

PN111

THE COMMISSIONER: All right. Are these persons covered by an award or agreement of the Commission?

PN112

MR KUCERA: Well, my instructions, sir, are no. I would have to check that to be precise but issuing - - -

PN113

THE COMMISSIONER: Perhaps I am standing here, there has either got to be an award of this Commission, an agreement of this Commission, or a dispute finding of this Commission.

PN114

MR DRAKE-BROCKMAN: Well, I think the section itself talks about an industrial dispute.

PN115

THE COMMISSIONER: Well, you know what an industrial dispute is.

PN116

MR DRAKE-BROCKMAN: Yes, I know but - - -

PN117

THE COMMISSIONER: It is an interstate industrial dispute.

PN118

MR DRAKE-BROCKMAN: Yes. If it includes a threatened, impending or probable industrial dispute, as defined.

PN119

THE COMMISSIONER: I mean the Commission's powers, under this section, I can't just go out in the street and pull somebody in and say that I have got jurisdiction.

PN120

MR DRAKE-BROCKMAN: No. No, but as Mr Kucera said, there is a - - -

PN121

THE COMMISSIONER: Well, there is a dispute but whether it is an industrial dispute within the meaning of this Act is to be proved.

PN122

MR DRAKE-BROCKMAN: Well, yes.

PN123

THE COMMISSIONER: I guess that is for you to prove.

PN124

MR DRAKE-BROCKMAN: Yes. Well, it is a dispute over site allowances, at the very least, we are told.

PN125

THE COMMISSIONER: How can this be fixed, Mr Kucera, get the people back to work? Certainly, the Sheraton site, you have got no legs there, they are off the job and they have got a agreement and they have got an interim payment.

PN126

MR KUCERA: Yes. In relation to the Sheraton site, sir, there will be a return to work tomorrow morning. I am instructed that, yes, there will not be any further issue in relation to that. It was a one off stoppage and it related to, as I said, what our argument is is the reciprocal breach of a disputes procedure. In relation to Gosnells, as I say, there is two outstanding issues. One is the site allowance and the other issue is the engagement of a site labourer. The necessity for a site labourer arises from the need to have a designated first aid person on the site. My instructions are that that person who was previously working as the site labourer was the first aid person.

PN127

MR DRAKE-BROCKMAN: There is a designated First Aid person on the site and we can certainly give evidence about that. I think it is referred to in the statement of Mr Noblett. And in terms of Mr Kucera, you know, is a wonderful fellow and I, you know, count him as a colleague and friend.

PN128

THE COMMISSIONER: I don't think you are a friend of theirs any more.

PN129

MR DRAKE-BROCKMAN: Well, any way. Sometimes friendships can be borne out of fire. But, you know, the issue about Sheraton has been before the Commission on numerous occasions. On two occasions at least there were undertakings given. The most recent was on 3 February 2003 where, on the record, Mr Dixon said:

PN130

Until any further notice or application ...(reads)... agreement with Consolidated Constructions.

PN131

And can I just make it clear that that undertaking is directed simply to pursuance of a certified agreement. I suspect, and we were certainly told on Monday, 7 April at Gosnells, that one of the issues was the EBA. That the EBA had not been signed. As I explained to you, having reverted to the EBA of November, the Consolidated Constructions, having spent an enormous amount of time going through the EBA of 7 January and marking up all of its proposed changes to that, all of these issues are absolutely intertwined and there is just simply no excuse for the industrial action at the Sheraton site today. And the background is such that unless orders are made pursuant to section 127 then industrial action will continue.

PN132

I am prepared to say to you that if those orders are made, certainly, the Consolidated Constructions are quite happy to prevail upon the Commission to assist it with ironing out some of the outstanding issues in relation to the current EBA negotiations, albeit that the CFMEUW say they only want a state agreement and the Consolidated Constructions say that they want a federal certified agreement. But the Consolidated Constructions are more than happy for the Commission to assist in that regard but it can't do so when every second day there is industrial action. Plus, bear in mind that it, in good faith agreed to interim payments for its employees, who are its only employees in WA at this stage, at the Sheraton Apartment site. And I can hand to you that documentation. It is evidenced by a letter to - I am just trying to find it here. End up with so many letters.

PN133

It is evidenced by a letter to one of the employees, a Mr Furlong, and you can see it is dated 10 February 2003 and you can see its terms. You will see that, as an interim arrangement, there was an increase in various hourly rates, superannuation, redundancy, productivity allowance, all purpose structural frame allowance, fares and travelling allowance, trauma insurance, and it seemed a very fair arrangement. And quite frankly Consolidated have done everything in their power to bring this about. On 27 March they get a letter saying: Could you please send up the marked up changes. They obtain electronic version of the January draft CFMEUW agreement and send it off to the union and they are told in the meantime, all bets are off, we will go back to November, the draft November agreement.

PN134

Then they were told that prior to the institution of industrial action at Gosnells this Monday. And they were told that the EBA was relevant to the Gosnells dispute. I use the word "dispute" in loose terms, but the end result of the action taken at Gosnells is there is no work at Gosnells. And I should hand up those letters concerning the EBA. I don't know what happened between 27 March and 4 April when they were told all bets were off. I think it was on 3 April, that is a letter asking for a marked up copy and then on 7 April there is a reference to that letter and, in fact, the provision of the marked up agreements. The electronic version of the CFMEUW draft January agreement was sent over to Consolidated Constructions on Thursday, 3 April. So, heaven's knows what happened between the 3rd and 4 April to cause all of this to go off the rails.

PN135

But that has been the nature of, unfortunately, the negotiations. There is industrial, then we come up here and then there are discussions and then they allegedly break down and we are left scratching our heads. And then there is industrial action and we are back up here and we are scratching our heads. It is just not working with Consolidated Constructions and I should also mention that one of the issues of discussion in relation to the EBA negotiations was that small jobs, like the Gosnells job, would be treated differently to the big jobs in the city. Because the Gosnells job is a small job which usually would not be the subject of all the site allowances and other requirements that are sometimes required for a high rise development in the city.

PN136

THE COMMISSIONER: All right. Now, you have heard Mr Kucera say that Sheraton Towers, is it, Sheraton, are returning to work tomorrow.

PN137

MR DRAKE-BROCKMAN: Yes.

PN138

THE COMMISSIONER: Do you still want to pursue your application in respect of that site?

PN139

MR DRAKE-BROCKMAN: Yes, in fact, in relation to both sites because the threat is made. It - - -

PN140

THE COMMISSIONER: Well, I have already said to you, you are going to have to somehow demonstrate my jurisdiction on the other site. Not good enough to say that you have got some interest in it.

PN141

MR DRAKE-BROCKMAN: I will call the evidence of Mr Noblett, because what he will tell you is that - - -

PN142

THE COMMISSIONER: I need jurisdictional evidence of whether these parties are bound by a certified agreement or an award of this Commission.

PN143

MR DRAKE-BROCKMAN: Yes, yes. All right. Well, I will call Mr Noblett. Call Stuart William Noblett.

PN144

MR KUCERA: Before you do, sir, the issuance of a section 127 order is a serious step. It appears, in relation to the Consolidated project in the Sheraton Apartment, there might be an argument in relation to that. But in relation to Gosnells it is to be treated differently in the sense that the company have already submitted they do not have any employees. In relation to the other contractors that are on site, they would have to demonstrate that they are either bound by an industrial dispute within the meaning of this Act. They would have to demonstrate that a certified agreement applies or that the National Building Construction Industry Award applies.

PN145

Our argument is, is that those things should be demonstrated before we proceed to hear evidence from Mr Noblett, who is a site manager from the Gosnells project. The two projects we say ought to be treated differently in relation to this particular order, because the company's approach is to treat the two sites differently. The company said it doesn't have a certified agreement that applies on the site. It is to be treated differently because it is a suburban project. And equally, we say, the approach that should be taken in relation to the section 127 order is exactly the same.

PN146

You see, sir, in relation to say Deckmil, for instance, if Deckmil engages employees and Deckmil's not named as a respondent to the National Building Construction Industry Award, and is in a dispute - party to an industrial dispute of this Commission, then we would say that an award of the State Commission applies, the Building Trades Construction Award, which also contains provisions that relate to site allowances and a process by which those issues ought to be resolved. As we say, those issues were raised with the head contracted, which was Consolidated. We say that they were raised as early as 18 March and as more recently as 4 April. We would say that that is an issue that ought be determined by the State Commission because those contractors are - - -

PN147

THE COMMISSIONER: I appreciate that and I appreciate that that is what, I mean, I could pretty well put your case for you. I have already said to Mr Drake-Brockman I would need a demonstration that these persons are bound by an award or an agreement.

PN148

MR KUCERA: I suppose the reason why I have objected - - -

PN149

THE COMMISSIONER: There is an industrial dispute been found or that they are even on strike. I mean, maybe the boss has just pulled them off to go to another job, I don't know.

PN150

MR KUCERA: The reason why I have objected, sir, is that I don't think Mr - - -

PN151

THE COMMISSIONER: Might be getting paid more up the road.

PN152

MR KUCERA: Mr Noblett can offer evidence that would assist you in determining if there is jurisdiction.

PN153

THE COMMISSIONER: Well, I guess he can't, unless he might be an expert, I don't know. He might be going to hand up documents through him. I - - -

PN154

MR DRAKE-BROCKMAN: Yes, we would.

PN155

THE COMMISSIONER: It is not for me to say how Mr Drake-Brockman should run his case. He is probably getting paid enough, he should run it how he likes.

PN156

MR DRAKE-BROCKMAN: Yes. Well, Mr Noblett will give evidence and as part of that evidence he will tell you about the sub-contractors on the site and, as far as possible, we will refer to the awards and agreements that apply to them.

PN157

THE COMMISSIONER: Yes.

PN158

MR DRAKE-BROCKMAN: I call Stuart William Noblett. Although, I must say, I readily appreciate the argument about whether the work is covered by an award or a certified agreement.

<STUART WILLIAM NOBLETT, SWORN [3.08pm]

<EXAMINATION-IN-CHIEF BY MR DRAKE-BROCKMAN

PN159

MR DRAKE-BROCKMAN: Mr Noblett, you've prepared a statement for the Commission. It is not a very long statement, so could you read that statement into evidence and if there are matters that I wish to clarify with you I will ask you to stop and perhaps ask you a couple of little questions. But if you could just read your statement into evidence?---

PN160

My full name is Stewart William Noblett. My address is Lot 203 Blue Plains Road, Chittering in West Australia. I have a degree in Building Management and I have worked in the construction industry for 16 years. I have been employed by Consolidated Constructions Pty since July 2001. Gosnells Civic Complex project. The Gosnells Civic Complex project involves the construction of a two storey civic complex with a car park/undercroft on the - for the City of Gosnells. Consolidated Constructions is the head contractor for the project. Deckmil Pty is the main contractor to Consolidated Constructions. This - the site is located at 224 Albany Highway, Gosnells. The site, in area, is approximately 3215 metres squared. The site is fenced with two gates at the main entry. The site - there is also two gates at the entry to the car park. I am employed by the project manager on the site - I am employed as the project manager on the site. My duties include the following, financial and document control, on site industrial matters, liaison with the contract professionals and the City of Gosnells, on site quality assurance and administration for the relation to sub-contractors. The contract administrator on site is Mark Dechenzo, employed by Deckmil. The site supervisor on the site is Mr Pat Brown, employed by Consolidated Constructions. The contract administrator employed by Deckmil, who is the joint venture partner of Consolidated Constructions in relation to the Gosnells Civic project.

PN161

But certainly, Consolidated Constructions are the head contractor?---Yeah, yes:

PN162

Consolidated Construction does not employ any direct labour on the site. All work that is conducted on the site is carried out by sub-contractors and employees to the sub-contractors. Consolidated Constructions Ltd commenced work on the project, took possession of the site on 10 March 2003. Work on site commences at approximately 6.30 am and the site closes between 4.30 and 5. Occasionally work is done on the site on a Saturday.

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN163

Right. Now, in relation to the contractors to Consolidated Constructions Pty Ltd, you said that Deckmil Pty Ltd is a contractor to Consolidated Constructions Pty Ltd?---Their our joint venture partner in - - -

PN164

Yes. But you have a contract with them?---We do, yeah.

PN165

Yes. All right.

PN166

THE COMMISSIONER: He is a joint venture partner, according to this.

PN167

MR DRAKE-BROCKMAN: Yes. That is correct, but the head contractor is Consolidated Constructions. The main contractor is Deckmil and you are in a joint venture?---We are in a joint venture partnership.

PN168

Right. And is that a partnership that applies outside of the city centre?---Yeah, it is used on other jobs around the - around the state.

PN169

Yes. And did you do something Christmas Island and - - -?---Yeah, we did a couple of jobs - three jobs in Christmas Island with them, yeah.

PN170

All right. Yes. So you describe it is a joint venture, doing things together?---Yeah, that is right.

PN171

But the head contractor is Consolidated Constructions?---That's correct.

PN172

Right. Now, who are the contractors currently on the site?---BGC Concrete, TMS Electrical, Golden State Plumbing, GMF Earthworks. That's - there is a few more there that they're on there. I can't recall them all at the moment.

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN173

All right. Is this a list - - -?---That are working on site at this moment. I will - - -

PN174

Is this a list of the sub-contractors' supplier list?---It is, yes.

PN175

They are sub-contractors to Consolidated Constructions?---They are, yeah.

PN176

Yes. Who of that list are currently on the site?---Actually - actually working on the site itself, BGC Concrete, GMF Earthmoving are - have been on site and will be due back at the end of the week. Golden State Plumbing, TMS Electrical and MRF Logistics.

PN177

All right?---Form workers.

PN178

In relation to J.P. Barnes Contracting, are they on the site as you?---They - they are engaged but they're not yet on site, no.

PN179

Kone Elevators?---Again, they've done drawing - they're in drawing stage. But again, they've not been - they're not on site.

PN180

What about Midland Brick?---Midland Brick are again - they - they're a - they're supplier and they're due to supply in the next week or so.

PN181

All right. Now, in relation to the industrial action on 7 April 2003, can you go to your statement?---Yes:

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN182

Item 17. At approximately 6.15 on 7 April I attended the site. Approximately 6.30 I've - I observed Joe McDonald, the Assistant Secretary of the CFMEU, and another union official drive up to the site. I have known John - Joe McDonald for a number of years through working in the building industry and various jobs we have both been involved with. At approximately 6.35 Mr Vinnie Molina, another CFMEU official, arrived on site driving a ute. The site workers arrived between approximately 6.30 and 6.50. Joe McDonald requested all site workers to go into the smoko shed for a meeting. The meeting lasted approximately 10 minutes. At approximately 6.50 am Joe McDonald approached the site office and said to me: Site is closed for 72 hours. The men are leaving the site. I said: For what reason? Joe said: Because there is no labourer on the site allowance. When Joe McDonald said to me: The site is closed for 72 hours, I replied: I am not closing the site. Joe McDonald replied: Well I have - I have and the men are leaving. Joe McDonald then left the area of the site shed and I observed him making a telephone call. At approximately 7 am Pat Brown, the Consolidated Construction site supervisor, arrived at the site office. At approximately 7 am Joe McDonald came into the site office and repeated: The site is closed. I asked: On what grounds was the site to be closed and industrial action to be commenced. Joe McDonald said: No site labourer and EBA. I said: We (Consolidated Constructions) are negotiating with you on the EBA. Joe McDonald replied: Not any more, no you're not. I replied: I am not closing the site. Joe McDonald replied: The site is closed. If any works - if anybody works it will be on. I understood this to mean that if work was conducted on the site there would be further industrial action. Joe McDonald and I moved outside the office to the entrance of the site compound. The BGC supervisor on site walked past us saying: I'm trying to organise a machine. On the basis of existing requirements I knew that he was referring to an excavator earth moving machine. He continued walking away from us into the car park. Joe McDonald said to me that I should tell the BGC supervisor not to order the machine. I once again said to Joe McDonald: I am not closing the site. Joe McDonald said to me, point to the BGC supervisor: Go and tell him to order - not to order one of the machines. I will close down Consolidated here and in Sydney. I walked away. I observed Joe McDonald approaching Vinnie Molina and the two appeared to have a conversation. Vinnie Molina then entered his ute and

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

proceeded to move the ute to block the access to the site for any vehicles. At approximately 7.15 to 7.30 am the site workers left site. I spoke with one of the form workers, MRF Logistics, who said to me that the form workers were going to another job. At approximately 7.40 Joe McDonald approached me and said: What are you going to do? I said that: I would be closing the site - I would not be closing the site. Joe McDonald said: Don't bring any scabs. I understand this to mean that I should not arrange to obtain alternate labour for the 72 hour period. Joe McDonald then got into his car and said: There's a strike on, don't bring scabs. As he drove away to - from the site he repeated: No scabs young man. At approximately 7.45 Joe McDonald, in one car, and Vinnie Molina, in his ute, left the site. At approximately 7.45 am Mr John Bale, the Managing Director of Consolidated Constructions, rang me on another issue and I told him that the industrial action was occurring on the site and all the site workers had left - had walked off the job. I stayed at the site all day, along with the supervisor and the contract administrator and no work was performed on site. Consolidated Constructions are suffering loss and damages as a result of the strike action on 7 April 2003 and will continue to suffer loss and damage for 72 hour period that Joe McDonald said the industrial action would last. No work was conducted at the site on 7 April.

PN183

Right. Now you go to the industrial action on 8 April 2003.

PN184

THE COMMISSIONER: Apparently, I have got half your document.

PN185

MR DRAKE-BROCKMAN: Have we?

PN186

THE COMMISSIONER: Yes, go on, sorry?---Okay. 8 April:

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN187

I arrived at the Gosnells site approximately 6.30 on 8 April 2003. No one else was on site. At approximately 6.50 am, the BGC supervisor, Michael Parker arrived at the Gosnells site and advised me that he arranged for an excavator, which is a type of earth moving machine, to be on site at 7 am, to commence work with the concrete labour. At approximately 7 am Pat Brown, Consolidated Construction site supervisor arrived on site. At approximately 7 am the excavating machine arrived on site. The concrete site workers arrived at approximately 7.15. I gave the excavator driver a site safety induction after which he unloaded the excavator from his truck and drove it onto the Gosnells site at approximately 7.45. Approximately 7.30, whilst I was inducting the excavator machine driver in the site office I observed Vinnie Molina, a CFMEU official enter the site office. Vinnie Molina said, "Good morning". I said, "Could you give me 5 minutes?" Vinnie Molina went outside to the site office, I completed the safety induction for the excavator driver and went outside to the site office and observed that Vinnie Molina was on the telephone. Vinnie Molina said it was Joe McDonald on the line. I took the phone and recognised Joe's voice. He said, "What are you doing, if the machine strikes a blow there will be scab labour", I understood Joe McDonald to mean that if the excavating machine and the concrete labourers start work they would be breaching industrial action and considered to be scab labour. He then said, "What are you going to do?" I replied, "I am going to let the excavating machine and concrete workers continue working on site. Joe said that, "If they do work I will close Consolidated down including Sydney". I understand this to mean that industrial action would occur on all Consolidated Construction sites around Australia. Joe McDonald said to me, "You had better ring John Bell and ring me back in 10 minutes". The conversation finished approximately 7.50 am. I gave the mobile phone back to Vinnie Molina and I walked back to my site office. At approximately 8.05 we went outside the site office again. Vinnie Molina was outside and he said, "I am leaving now". By this time the concrete labourers and excavator driver had commenced work. Vinnie said to me that he was not preventing the concrete workers from working, however, he told them that they were breaching the strike and Vinnie Molina then left the site. The four concrete labourers from BGC Concrete and excavator operator, are working at Gosnells site on 8 April, the remaining site workers have not attended the Gosnells site on 7 April, this included form workers, reinforcement fixers, plumbers and electricians. Consolidated Constructions is continuing to suffer loss as a consequence of this industrial action.

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN188

MR DRAKE-BROCKMAN: All right and do you have any knowledge as to whether there has been any work today at the Sheraton Apartment site?---I believe that following this conversation I had with Joe McDonald that the site did close, it was working, I believe, this morning early and then - - -

PN189

Thank you. Perhaps through the witness, I hand to you a copy of the National Building Construction and Industry Award 2000, together with, I think it is the schedule V respondents to that award. It is a fairly lengthy document. If you can just identify those for us? And there is another one as well, it is almost like a phone book. You identified that as a - as the National Award Building - now I don't have a copy, just recite the name of the award?---Australian Industrial Relations Commission - Commission registry loose leaf, Consolidation National Building and Construction Award - Industry Award 2000.

PN190

Yes and then there are two clips which contain a schedule of respondents?---Yes, that's correct.

PN191

And I think I will identify the pages, but I think you will find in the schedule of respondents J.P. Barnes Contracting and also Midland Brick.

PN192

THE COMMISSIONER: All right, J.P. Barnes - let's not muck around, J.P. Barnes and Midland Brick aren't on the site?

PN193

MR DRAKE-BROCKMAN: They're not on the site and I'm going to take instructions in relation to this evidence and I have another witness as well, Mr Dickie Dique, but this deals with the Gosnells part of the dispute and I will - I think it is appropriate to take instructions from my client before there is any need for cross-examination, if you would agree to that?

PN194

THE COMMISSIONER: Do you want to cross-examine?

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN195

MR DRAKE-BROCKMAN: We might do, but we are not pressing, based on the information provided by Mr Noblett we are not at this stage pressing the Gosnells matter, I am only thinking of saving time.

PN196

MR KUCERA: I am just wondering what the adjournment is for, so that - - -

PN197

MR DRAKE-BROCKMAN: To take instructions.

PN198

MR KUCERA: But instructions for what purpose that is all?

PN199

MR DRAKE-BROCKMAN: Well, sorry, to take instructions as to whether we are going to press on with the Gosnells matter, if we are not going to press on with the Gosnells matter I will get straight into the Sheraton Apartment site matter, but - - -

PN200

THE COMMISSIONER: All right, well we will have an adjournment for 10 minutes.

PN201

MR DRAKE-BROCKMAN: Thank you.

SHORT ADJOURNMENT [3.25pm]

RESUMED [3.49pm]

**** STUART WILLIAM NOBLETT XN MR DRAKE-BROCKMAN

PN202

MR DRAKE-BROCKMAN: Thank you very much Commissioner for the time you gave me. As part of the time that was taken I had a fairly long chat with my learned friend Mr Kucera. In relation to the Gosnells dispute, we are not going to press for an order in relation to the Gosnells dispute and we would withdraw that part of the application and it is a matter now whether there is any need for Mr Noblett to be cross-examined on the Gosnells dispute. In relation to the Sheraton Apartment Tower site I would be calling, in due course, Mr Dickie Dique about the current industrial action there.

PN203

THE COMMISSIONER: You see no need now to question Mr - you can step down thanks Mr Noblett.

<THE WITNESS WITHDREW [3.49pm]

PN204

MR DRAKE-BROCKMAN: Thank you. I call Andries Petrus Johannes Dique.

PN205

THE COMMISSIONER: Dickie Dique isn't it.

PN206

MR DRAKE-BROCKMAN: Known to everyone as Dickie Dique.

PN207

THE COMMISSIONER: Dickie Dick as McDonald calls him?

<ANDRIES PETRUS JOHANNES DIQUE, SWORN [3.50pm]

<EXAMINATION-IN-CHIEF BY MR DRAKE-BROCKMAN

PN208

MR DRAKE-BROCKMAN: Mr Dique, can you tell the Commission your current position with Consolidated Constructions Pty Limited?---I am Contract Administrator at the Sheraton Apartment Tower Project.

PN209

And were you present at the Sheraton Apartment Tower Project today?---Yes, I was.

PN210

All right, well can you tell us what happened this morning at the site?---At approximately 20 to 9, we were informed that the boys had been called down for a meeting.

PN211

And when you say "we"?---It was just in passing, you know, we were on the first floor where the site offices are and we heard one of the people just shouting up - literally shouting up into the building to tell the guys to come down because there is a meeting downstairs.

PN212

All right and where was the meeting held?---The meeting was held in the foyer on the ground floor of the project.

PN213

Yes and who attended that meeting?---We believe all the operatives, when I see "we", site management we weren't involved in the meeting, so I'm not exactly sure who was there, but usually it is most of the site operatives, all the site operatives are there.

PN214

And did you see any union officials this morning?---Yes, I did see Mr Joe McDonald on site.

PN215

And who he is?---Joe McDonald, he is the assistant secretary of the CFMEU.

PN216

All right and where did you see him?---I saw him walking - he parked his car outside the gate and he walked through the site into the First Aid shed down on the ground floor.

**** ANDRIES PETRUS JOHANNES DIQUE XN MR DRAKE-BROCKMAN

PN217

Right and did you go and speak to Mr McDonald?---I spoke to Mr McDonald after the meeting, I didn't speak to him before that time, we don't have a policy at the moment of resisting side entry, so he is free to come into the site. He came in, apparently the meeting was held, I'm not quite sure if there was a vote, or no vote, but after the meeting he called me down, or he sent somebody to come and get me to come down. I went down to him, as I said approximately five past, or 10 past 9, and I asked Joe, you know, what it was about and he said to me: well, it is, he started off by saying that it is not EBA related, but that it is because we've used scab labour. So I said to him, "Can you expand on that?" And he said to me, "Well you know the story, you used scab labour down at Gosnells and that is not meant to be the case" and I asked - - -

PN218

He didn't explain that to you?---No.

PN219

Did you have any understanding of what he was talking about?---Yeah, the way I understood it is that we've - there is a strike on the site and they - he was unhappy about the fact that there were people actually working on site and the terminology scab labour is usually used when non-union members are actually working on a site, and they get referred to as scab labour.

PN220

All right, did you respond to him in any way in relation to that comment about scab labour?---All I said to Mr McDonald is that we were - we had issued a memorandum of understanding to the union, together with our draft EBA, which had amended and submitted to them and based on our memorandum of understanding that there would be certain sites that we would be working in a slightly different manner. I did say to him that I understood that after Friday's meeting, this obviously didn't apply any more and he said, "You are very right as far as that is concerned".

PN221

And which meeting was that?---It was a meeting held between Mr Kevin Reynolds, Mr Joe McDonald, Mr John Bell and myself, to discuss the EBA on Friday, 4 April.

**** ANDRIES PETRUS JOHANNES DIQUE XN MR DRAKE-BROCKMAN

PN222

And what were you told at that meeting and who told you?---Well, there was a lot said in that meeting, but in principle Mr Reynolds told us that the - all negotiations are off as far as the EBA is concerned, they were no longer willing to talk to us about the EBA. We sign on the EBA that everybody else had signed, which was apparently the EBA document of November and if we don't sign it then we are at war.

PN223

All right and prior to 4 April 2003, had you received a letter from the CFMEUW the State union?---Yes, I did receive a letter from him.

PN224

All right and what did that letter say?---If I can just quickly read:

PN225

We refer to your letter of 21 March 2003 and to the enclosed memorandum, please mark out in pen the clauses of the enclosed draft that you propose to change in line with your suggestions and return it to this office. The CFMEU has worked off the copy of the proposal agreement generated within this office. The memorandum appears to refer to another document. We await your clarification of the matter raised.

PN226

All right and then what did you do as a result of that letter?---Well I can take one step back, we had previously requested an electronic copy of the document that we could work off from the onset, which was refused to us. I then once again after receiving this letter, phoned and spoke to the member of the CFMEU, asking for an electronic copy to actually go and mark it in pen is a ludicrous exercise, nobody would actually be able to make head or tail of it, so I wanted to get an electronic copy which we could then mark up for them, which would be a far more legible copy.

PN227

And did you get a marked up - sorry an electronic copy?---They originally refused it and then after further negotiations I eventually did receive an electronic copy in the afternoon of 3 April.

**** ANDRIES PETRUS JOHANNES DIQUE XN MR DRAKE-BROCKMAN

PN228

And what did you then do with the electronic copy of the - what version of the draft CFMEUW agreement was that?---Well I understand it was one of January or February, I think it was 9 January if I'm not mistaken, but it was slightly different to the one that we received on 11 November - or 29 November whenever we did receive the one in November, but it was quite similar to it. I then proceeded over the weekend to mark it up electronically and to bring all the changes which we had brought into the draft copy which we had submitted to them previously, so all that I did is take the one which we had submitted to them and re-write the changes on the copy which they had electronically sent us.

PN229

And did you send that yesterday?---Yes, I did.

PN230

You finished that task over the weekend and - - -?---Correct.

PN231

Sent it yesterday?---Yes.

PN232

Sorry, I tender that letter dated 27 March 2003 from the CFMEUW to Mr Dique?---Yes, the letter dated - sorry 7 April, from Consolidated Constructions to the CFMEUW in response to their letter and I quote:

PN233

I refer to our previous correspondence and in particular your letter dated 27 March 2003. Thank you for providing us with the electronic version of your draft agreement of the 9th of the 1st '03, as requested we enclose a marked up copy of your draft, together with a copy of our version of the agreement, March '03. I am disappointed that you have suggested that you want to revert to your original draft, November '02 agreement and that you are no longer interested in any further negotiations in this regard. I urge you to reconsider your position. Yours faithfully, Dickie Dique.

**** ANDRIES PETRUS JOHANNES DIQUE XN MR DRAKE-BROCKMAN

PN234

And was it your understanding though, for whatever reason, they were seeking a State registered agreement as opposed to a certified agreement?---All along the documentation that we have received they keep referring to CFMEUW and to various legal entities in the form of State, where we are sitting with a Federally certified agreement and we would prefer, or we are wanting to re-negotiate a Federal agreement.

PN235

Yes a Federal agreement and that would primarily apply to jobs of a certain size?---Yes, the correct - that is correct. More than $10 million is - is what we're going to be looking at, correct.

PN236

And in relation - as part of the agreement, in relation to those below $10 million, or $10 million or less, you would - that would be in terms of a memorandum of understanding?---Yes, we've got - as I said we presented a memorandum of understanding in which there would be call it a tiered arrangement if you would like to put it that way, that in certain situations, certain conditions would apply, but that in other conditions the normal conditions set out in the EBA would be applicable.

PN237

Right, I tender the letter dated 7 April 2003.

EXHIBIT #DB1 LETTER FROM CFMEUW TO MR DIQUE, DATED 27/03/2003

PN238

MR DRAKE-BROCKMAN: Thank you sir.

EXHIBIT #DB2 REPLY FROM CONSOLIDATED TO CFMEUW, DATED 07/04/2003

**** ANDRIES PETRUS JOHANNES DIQUE XN MR DRAKE-BROCKMAN

PN239

MR DRAKE-BROCKMAN: At the moment, let us say since say February of this year, your only direct employers, that is Consolidated Pty Limited, Consolidated Constructions Pty Limited's only direct employers, are those at the Sheraton Apartment Tower Project?---That is correct.

PN240

And to facilitate further negotiations with the union, was there an interim agreement reached giving a salary and allowances in conditions increase to the employees at Sheraton?---Yes.

PN241

I am now handing to you a letter to a Mr A.N. Furlong, dated 10 February 2003, signed by John Bell and Mr Furlong, is that - is that reflective, or is that the agreement that was reached with the union and the employees?---Yes, this is a typical letter that was sent out to the employees. Mr Furlong has just taken as an example, for no other reference and but yes, this is the agreement that was reached based on the recommendations of this Commission we went to the union, we have had negotiations with them and it was agreed between Mr Reynolds and Mr Bell that we would put something like this in place, to at least give the boys the benefits of the agreement, of the potential agreement and that if we then couldn't come to an agreement, obviously we would revert back to where we were, but this was a step of good faith from our side.

PN242

Right. I tender that to the Commission.

EXHIBIT #DB3 LETTER TO MR A.N. FURLONG, DATED 10/02/2003

PN243

MR DRAKE-BROCKMAN: Thank you. And in relation to the Sheraton Apartment Tower Project where you have employees, what happened today, you mentioned the operatives had a meeting?---Correct, the operatives had a meeting and whether it was voted, or whether they were instructed I'm not sure, but the site - all the site operatives left the site by 10 o'clock this morning and no work is being performed on site, I would say the last work was done probably at about 20 to 9, when the guys were called to come down to the meeting and no work has been performed since.

**** ANDRIES PETRUS JOHANNES DIQUE XN MR DRAKE-BROCKMAN

PN244

And Mr McDonald, Mr Joe McDonald conducted that meeting and advised you of the result of that meeting?---I take it he conducted it, as I said I wasn't present, but, yes, he was the organiser on site, organiser or representative should I say, not organiser and he advised me afterwards of the outcome and what the lads would be doing.

PN245

Right. Okay, and in relation to the Sheraton Apartments Tower Project, is this the first industrial action there has been by way of a strike?---No. We have had numerous accounts of industrial action on the site over quite a - quite a period of time.

PN246

How many days approximately?---Oh, jeepers. I would not be able to give you an accurate answer but if I were to take a guess, it is probably - oh, we have had bans on us in the form of protected action, and if we take all that into account we are probably looking at 30 days plus. If one had to - - -

PN247

Protected and unprotected action?---Protected and unprotected actions, yes.

PN248

And - - -?---Taking all the hours into account.

PN249

And in relation to the stoppage or the industrial action by way of the strike at the Sheraton Apartments Tower Project, did Consolidated Constructions Pty Ltd receive any notice of the act, that it was protected action?---We have had no notices of protected action now.

PN250

All right. Thank you. No further questions, sir.

PN251

THE COMMISSIONER: Right, thank you. Mr Kucera?

<CROSS-EXAMINATION BY MR KUCERA [4.04pm]

**** ANDRIES PETRUS JOHANNES DIQUE XXN MR KUCERA

PN252

MR KUCERA: Mr McDonald said to you this morning, I think it was your evidence: it is not EBA related, it is because you use scab labour at Gosnells, is that right?---That is what he said.

PN253

That is exactly what he said. So your understanding was, is that the stoppage this morning was not over the enterprise agreement, it was simply over the dispute that was occurring at Gosnells?---That is what Mr McDonald said to me, that it is not necessarily the way I read into it but that is the what Mr McDonald said to me.

PN254

That is pretty standard. All right, I don't have any further questions, Commissioner.

PN255

THE COMMISSIONER: Okay, thanks.

<RE-EXAMINATION BY MR DRAKE-BROCKMAN [4.05pm]

PN256

MR DRAKE-BROCKMAN: Were you aware of what he had said to Mr Noblett down at Gosnells?---I did have an idea, yeah, yes. Stuart and I had spoken so I was aware that he - that he - - -

PN257

You heard Mr Noblett's evidence today?---Yes. Correct.

PN258

Right. No further questions, sir.

PN259

THE COMMISSIONER: Right, thanks. You can step down, thanks, Mr Dique?---Thank you.

<THE WITNESS WITHDREW [4.05pm]

PN260

MR DRAKE-BROCKMAN: Yes, sir, the history of industrial action at the Sheraton Apartment's Tower Project has been very unsatisfactory. There have been two undertakings given in the past by the CFMEU which had, you know, we can split hairs over them but the fact of the matter is that there has been a history of industrial action at that site. Today was just another example of it, for one reason or another, and it was unprotected industrial action and has caused further inconvenience and loss to Consolidated Constructions Pty Ltd, and we ask at the end of the day after everything else that has proceeded us and proceeding this particular day, an order in relation to the Sheraton Apartments Tower Project in terms of the amended application for an order to stop or prevent industrial action. Needless to say, if there is, in the future - - -

PN261

THE COMMISSIONER: Which amended application?

PN262

MR DRAKE-BROCKMAN: Oh, sorry. The amended application I provided to the Commissioner earlier today. Sorry, I thought I had handed it up.

PN263

THE COMMISSIONER: That still contains reference to the same.

PN264

MR DRAKE-BROCKMAN: Yes. Obviously, any order that is made won't relate to protected industrial action as provided for under the Act. It will only relate to unprotected industrial action and it seems that even if there are disputes in other places as in this case, a dispute at Gosnells, it affects the Sheraton Apartment Tower Project and we submit that there should be an order made relating to the Sheraton Apartment Tower Project which, of its effect and nature, will only relate to unprotected industrial action.

PN265

And that is in the context of the Consolidated Constructions being ready, willing and able to try and negotiate an enterprise bargaining agreement with the union and you will see from the evidence that they have done everything they possibly can to achieve that, notwithstanding some hiccups along the way, in accordance with a suggestion made by you, sir, on a previous occasion. It has just reached the stage where there has just been so much industrial action at this site that an order should be made. Thank you.

PN266

THE COMMISSIONER: Thanks. Mr Kucera.

PN267

MR KUCERA: Sir, as submitted right from the outset the stoppage in relation to the Sheraton Apartment Project was, as we submit, in response to the company bringing a replacement workforce on to its site in Gosnells. The stoppage, and it was submitted in Mr Dique's evidence, that the stoppage was, in Mr McDonald's words, not EBA related it only related to the use of replacement labour at Gosnells. The evidence of Mr Stewart William Noblett was that the day before he had been told not to proceed down that path obviously because, I suppose, the CFMEU regards it, sir, as a thin end of the wedge. It is a serious issue.

PN268

They had attempted to sort some issues out at Gosnells, they weren't able to resolve those issues and regrettably that led to a situation where there was industrial action. We would say, sir, that the industrial action was exacerbated by the company doing what it did at Gosnells. The undertakings that have previously been given by Mr McDonald were complied with. They were complied with also by the CFMEU. It is a fresh, unrelated issue and, as submitted, sir, the evidence is is that it was not related to an enterprise agreement.

PN269

Regardless of what people's attitudes or opinions about that are, it was clearly communicated to the company that it related to a single issue, isn't part of a broader global agenda. My instructions are, sir, there will be a normal resumption of work tomorrow morning. If an order was to issue in relation to this particular action or this incident there would not really, we would submit, sir, be a necessity for an order to issue. But in the event that it did issue on this particular issue, there would be a return to work tomorrow morning in any event.

PN270

So, on that basis, sir, we would submit that there would not necessarily be a need for an order because there isn't any further impending or probably or industrial action that would be happening tomorrow. It would only be in relation to action today and by the time the order issues, effectively, there would be a return to work tomorrow morning. I don't have anything further to submit, sir.

PN271

THE COMMISSIONER: Thanks, Mr Kucera. The Commission is satisfied that industrial action is occurring on the Sheraton Apartment Tower Project. It is further satisfied that to work is regulated by a certified agreement, namely the Consolidated Construction Pty Ltd CFMEU Collective Agreement 1999. An amended order will issue in the terms of the proposed order, save that all reference to Gosnells Civic Complex Project is struck out and that the term of the order will be for a period of one month. The order will come into force from 4.30 pm on 10 April 2003. The matter stands adjourned.

PN272

MR DRAKE-BROCKMAN: May it please the Commission.

ADJOURNED INDEFINITELY [4.12pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

STUART WILLIAM NOBLETT, SWORN PN159
EXAMINATION-IN-CHIEF BY MR DRAKE-BROCKMAN PN159
WITNESS WITHDREW PN204
ANDRIES PETRUS JOHANNES DIQUE, SWORN PN208
EXAMINATION-IN-CHIEF BY MR DRAKE-BROCKMAN PN208
EXHIBIT #DB1 LETTER FROM CFMEUW TO MR DIQUE, DATED 27/03/2003 PN238
EXHIBIT #DB2 REPLY FROM CONSOLIDATED TO CFMEUW, DATED 07/04/2003 PN239
EXHIBIT #DB3 LETTER TO MR A.N. FURLONG, DATED 10/02/2003 PN243
CROSS-EXAMINATION BY MR KUCERA PN252
RE-EXAMINATION BY MR DRAKE-BROCKMAN PN256
WITNESS WITHDREW PN260