C2003/1744, Transcript of Proceedings [2003] AIRCTrans 1563 (28 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2003/1744

BARCLAY MOWLEM CONSTRUCTION LIMITED

and

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND OTHERS

Notification pursuant to Section 99 of the Act
of a dispute re alleged union demand for a project
agreement; alleged unprotected industrial action

SYDNEY

10.37 AM, THURSDAY, 10 APRIL 2003

Continued from 4.4.03 before Commissioner Harrison

Adjourned sine die

PN104

THE COMMISSIONER: I will take appearances please.

PN105

MR P. SLATTERY: I appear for Barclay Mowlem Construction Limited and appearing also on behalf of the relevant subcontractors on this stage 3 project, Camperdown, if the Commission pleases.

PN106

MR S. MARSHALL: I appear on behalf of the Construction, Forestry, Mining and Energy Union New South Wales Branch. With me is MR D. MURPHY the organiser for the site.

PN107

MR McKINLEY: If the Commission pleases I seek leave to intervene on behalf of the ETU New South Wales branch. We represent the members of the electrical company on sight that are covered by State awards, State agreement, therefore they are covered by our State branch of the ETU. We have been listed the CEPU Commissioner, but I have no coverage of these members.

PN108

THE COMMISSIONER: So what are you telling me, that you shouldn't be here at all?

PN109

MR McKINLEY: Basically I have not problems staying here and listening Commissioner but I don't believe that anything that happens here can actually have any effect on our members.

PN110

THE COMMISSIONER: Well before coming to your application I will hear Mr Slattery about that matter and that matter only at this time.

PN111

MR SLATTERY: Commissioner I have no objection for Mr McKinley being here in relation to his representation of his members who are members of the ETU and I believe that the principal company is the electrical contractor who is All State Electrical Services. I'm not fully aware as to whether they are under a Federally registered agreement or a State agreement but clearly we have no objection for the ETU to be here.

PN112

THE COMMISSIONER: Right but there is a problem isn't there, if the ETU can't be bound by orders made by me. There is a difficulty isn't there.

PN113

MR SLATTERY: Certainly is Commissioner - - -

PN114

THE COMMISSIONER: So could I suggest this to you and to your Mr McKinley that I will not your application reserve a decision on it but you are welcome to stay as an observer. If something occurs which involves you directly and your members, we will come back to the issue. It is probably in your interests as well.

PN115

MR McKINLEY: Certainly.

PN116

THE COMMISSIONER: Mr Slattery, your application?

PN117

MR SLATTERY: Commissioner, firstly may I think the Commission for bring this matter on and hearing it. It is my clear understanding that it is outside your panel of jurisdiction. Commissioner we were here before Commissioner Harrison last Friday in respect to a claims from the CFMEU and the other unions in respect to the project agreement template and also in relation to a demand or a claim for an increase in the side allowance quantum at the City Porter Stage 3 project.

PN118

Commissioner, at that particular hearing, Commissioner Harrison went into private conference, we heard from the parties in detail plus what is already recorded on transcript. The outcome was the important part. We were given a commitment by the unions led by Mr Brian Parker, who is the assistant secretary of the CFMEU. Mr Parker had given a commitment that industrial action would cease on the projects and whilst we have a course of action to try and get a resolve to it and clearly that course of action was one Barclay Mowlem to convene which had already been arranged, a meeting with Chris Christadoulou who is the assistant secretary of labor council and also during that course a period of time to think the unions had come to realise that Barclay Mowlem were in a situation or a position where by contract we had no authority to be negotiating any project agreements and or increases in site allowances as we were only a contractor on the project and the project was actually controlled and run by the relevant developers.

PN119

With that Commissioner our senior people at Barclays did speak with the relevant people as to developers and gave them a full briefing as to the dispute and the reasons for the dispute and where our position lay and, I will preface, to encourage them maybe just to establish a dialogue with the relevant unions in relation to this dispute and as to maybe the future developments. Clearly that was our undertaking and a commitment. On late Tuesday I heard a report that at the City Porter Stage 3 job was possibly going to be affected by a 48 hour stoppage which we took alarm to given the fact that in good faith we certainly were trying to progress and get an understanding of the issues.

PN120

We had a very good meeting with Mr Chris Christadoulou in relation to that. I spoke to Mr Brian Parker to find out from Mr Parker as to whether there was any truth in the matter as to the dispute. In the first instance he didn't deny or acknowledge that there may be a dispute. I clearly then said I wanted to speak to Andrew Ferguson. I spoke to Mr Ferguson late that evening. Mr Ferguson stated he would put in his best endeavours and speak to the organiser who is Mr Dan Murphy to try and prevent any industrial action whilst we tried to have further dialogue with the relevant parties.

PN121

As I explained to him, I said, having a stoppage is not going to achieve anything on the basis that (a) the membership of his union loses money, we have a contractual obligation to that we have no extensions of time in relation to industrial action of this nature and that the parties should be working together as to a better resolve and just head butting.

PN122

THE COMMISSIONER: Speaking of head butting was there any industrial action?

PN123

MR SLATTERY: Commissioner, there was. On the Wednesday morning Mr Murphy - - -

PN124

THE COMMISSIONER: We're talking about yesterday?

PN125

MR SLATTERY: Yes. Yesterday Mr Murphy came to the site in his capacity as the organiser, he intervened in the actual progress, what was to be the progress of a concrete pour, called a mass meeting and the result of that was a 48 hour stoppage immediately. That stoppage, whilst we've tried to in our discussions yesterday with Mr Ferguson and Mr Murphy try and get an earlier end to that, the practicality given the time of day became quite impossible.

PN126

THE COMMISSIONER: Is the strike ongoing?

PN127

MR SLATTERY: It is ongoing, the commitment which we received from Mr Ferguson is that they will make a recommendation tomorrow for a return to work as normal and that in the interim time that he would make himself available to meet with representatives of Sterlings who are the developer. Our senior people spoke with Sterlings and told them what the situation was and they have given a commitment to contact Mr Ferguson to have those discussions at a mutual time and place.

PN128

THE COMMISSIONER: Now I take it that the strike or I took it that the strike that commenced on the 9th, yesterday, was only to run for 48 hours anyway wasn't it?

PN129

MR SLATTERY: That's correct, Commissioner. What we're seeking I guess is the fact that (a) to - in essence it started back on the 3rd when there was industrial action and we were in the Commission to try and get a resolve to it. We've basically, again, thought we had a pathway. Our position really is as contractors, we have a duty and responsibility to ensure that the work force is active. We are uncertain, subject to what the union's mode is tomorrow as to whether we get a return to work as normal or as a continuation of that particular dispute to up the ante and I'll leave that for the unions to put their submission.

PN130

Commissioner whilst we're in good well trying to get a resolve, we've got little or not options but to be here, to report and also if it gets to a situation where there is further industrial action we would then seek to make our application under 127 for orders to stop and prevent industrial action.

PN131

THE COMMISSIONER: So the copy of a 127 application which was attached to your facsimile of late last evening is foreshadowed if certain evens occur?

PN132

MR SLATTERY: Correct, Commissioner.

PN133

THE COMMISSIONER: We now come to the $64,000 question: what do you wish me to do today? Are you applying for any form or order today?

PN134

MR SLATTERY: Not a form of order, Commissioner, because of the - we would say in goodwill and within our discussions with Mr Ferguson and Mr Murphy yesterday but rather than be provocative, whilst we've got the 48 hours dispute we certainly took umbrage to the dispute. As to the methodology, we've had further discussions with Mr Ferguson, we'll leave that there, but we would seek a strong recommendation from this Commission that an orderly process take place as to the outcome of this dispute that a recourse to industrial action is not taken by the unions tomorrow until there is a finality one way or another as to the outcome, whether it's an outcome that they wish to hear or an outcome which whoever the relevant parties are wish to give. But until that process is concluded we would seek that there would be no further industrial action on this project or any other Barclay and Mowlem project.

PN135

THE COMMISSIONER: Okay, but you're prepared to were the industrial action that is currently occurring?

PN136

MR SLATTERY: Commissioner, we've got no choice. Certainly whilst we don't wish to wear it we've - in practicalities given today that were sort of early morning and even late as yesterday that there's some 200-300 workers on that job. It's not like a factory. If the Commission pleases.

PN137

THE COMMISSIONER: Mr Marshall.

PN138

MR MARSHALL: Commissioner, my understanding from the discussions I've had with our organiser Dan Murphy and certainly with our assistant secretary last week was that the difficulties in this dispute have stemmed from the union being unable to have meaningful discussions with the developer Sterling to address the issues to do with site allowance.

PN139

THE COMMISSIONER: You seem to have their attention now, don't you?

PN140

MR MARSHALL: I note that there is a representative from the developer in the room and I mean it may be fruitful for us to have some discussion with their representation now before we actually go any further. I should say, Dan has advised me that the industrial action will be recommended to cease in the morning. I understand that's correct. We're very keen to have discussions with the developers. My understanding is that the industrial action that was taken was with the desire to secure talks with the developers. We're in a strange sort of situation. You know, we want to talk to the developers. We've been having difficulty having communications with the so maybe we can use this forum this morning to progress those talks.

PN141

THE COMMISSIONER: That sounds a good idea, but are you giving me an undertaking now that the union will recommend a return to work tomorrow morning? It's just a yes/no question.

PN142

MR MURPHY: Yes.

PN143

THE COMMISSIONER: Do you accept that undertaking, Mr Slattery?

PN144

MR SLATTERY: Yes, I do, Commissioner.

PN145

THE COMMISSIONER: I think given that all of the parties appear to be here it might be wise for you to have some preliminary discussions now. Do you want to have those just between the parties initially, which I think is probably the best way of going? I'll adjourn these proceedings now. My associate will come back at 11.30 and check on you and you can let me know what's going on. If we need to come back into formal hearing we will.

PN146

MS BARNES: May it please the Commission, I'm not in a position to conduct union negotiations or discussions today. I'm here merely as an observer.

PN147

THE COMMISSIONER: It's really up to the parties whether you remain for any discussions that occur. I think it would be wise if you allowed her to. Is that okay with you?

PN148

MR MARSHALL: Commissioner, I was hoping that the company representative would be empowered to talk to us. That's a little frustrating that they're here, but they can't talk actually.

PN149

MS BARNES: I'm a legal representative, I apologise. I'm not a company representative.

PN150

THE COMMISSIONER: You have now spoken a couple of times, do want to seek leave to intervene in these proceedings?

PN151

MS BARNES: I don't have instructions to do that I'm afraid.

PN152

THE COMMISSIONER: Okay.

PN153

MR MARSHALL: Commissioner, I think, this is an example of the difficulties we've haven. The developer has sent someone down who seems to be without instructions to negotiate. If the company were genuine about settling this dispute they would have sent someone down who was empowered to talk to the union. I think this gives a bit of an example of the difficulties that we're facing.

PN154

THE COMMISSIONER: I formerly direct the parties into conciliation and I direct you, Ms - - -

PN155

BARNES: Barnes.

PN156

THE COMMISSIONER: - - - Barnes, who - you represent?

PN157

MS BARNES: I'm from Colin Biggers and Paisley. I represent Sterling, Commissioner, the developer.

PN158

THE COMMISSIONER: Given that you have had some role in these proceedings I now direct you to contact your clients to receive further instructions as to your role in any conciliation proceedings. We shall reconvene later.

SHORT ADJOURNMENT [10.53AM]

RESUMES [11.35am]

PN159

THE COMMISSIONER: Mr Slattery.

PN160

MR SLATTERY: Commissioner, the union may be best to speak on this occasion. We had a brief discussion in relation to the issues. The union's officials here, Mr Marshall spoke to Ms Barnes in relation to her authority, and acting upon your instructions I think Ms Barnes can speak to that. I have no further submissions, Commissioner. I'm in the hands of this Commission as to where it now goes, its destiny.

PN161

THE COMMISSIONER: Well, to some degree you are, but largely you're in your own hands in that you're the applicant. You've received an unqualified undertaking from the CFMEU, which is what I took you were here to obtain?

PN162

MR SLATTERY: That's correct, Commissioner, and I'm satisfied with that in relation to any further instructions which may have been given to the CFMEU at the Bar Table during the interim period. So there have been other developments to that. I assume that's not changed but I think Mr Murphy and Mr Marshall can maybe best answer that question.

PN163

THE COMMISSIONER: Well let's move to them. Mr Marshall.

PN164

MR MARSHALL: Commissioner, Mr Slattery acutely stated, I had a conversation with Ms Barnes during the conciliation period. She advised me that the developers saw no role for themselves in this industrial dispute and their view was that it was a strictly contractual matter between Barclays and the union members, and she also said that they intend to maintain that position. Now, I would actually ask that she steps forward and makes those points on the record herself, obviously with your leave.

PN165

It obviously leaves us in a difficult situation, Commissioner. We're here, we genuinely want to have discussions with the developer. Mr Slattery, in meetings yesterday with Mr Ferguson has been cooperative with us as much as they can be, but at the end of the day the developer is the one that's holding the purse strings, or holding the strings around the contract as well. My own personal view is that it would be wise of the developer to talk to the unions but if they wish not to talk to the union we will have to report that matter back to our members, and I doubt that they will be happy about that.

PN166

THE COMMISSIONER: I also view as curious, but the developer is not a party to the notification, as I understand it. It's between you and Barclay Mowlem. I'm trying to get a handle on where this is going now, and I haven't done that yet so you can help me.

PN167

MR MARSHALL: Well, Commissioner, in terms of where this is heading, we're obviously going to go back and take some further legal advice ourselves on how to proceed from here because this is a slightly unusual industrial situation, not one that I've run into too often, and as you will probably note there's a representative from the task-force here. So we are obviously going to play our cards considerately and carefully, as we usually do.

PN168

As I say, in terms of what happens from here, I suppose Mr Slattery has made the application, he has done today. We're going to explore what other legal avenues that we can to try and get some discussions going with the developer. If those fail, or if there are no available avenues, then we will have to report back to the membership the progress or not that we have made in this dispute.

PN169

THE COMMISSIONER: It's always open to you to lodge a section 99 application of a dispute between you and the developer of course.

PN170

MR MARSHALL: That's certainly in my mind as to what I'm considering.

PN171

THE COMMISSIONER: And I would anticipate under those circumstances that the developer would turn up and say something.

PN172

MR MARSHALL: Yes. As I said, you know, obviously without prejudice I'm saying this, we're going to seek legal advice but we will probably pursue some sort of avenue like that but I'm really not in a position to make that sort of authoritative decision. That will come from our State Secretary.

PN173

THE COMMISSIONER: Well let's slice this up into digestive portions. You've given an undertaking to strongly recommend to your members that no further industrial action take place when this industrial action has run its course, is that correct?

PN174

MR MARSHALL: Yes.

PN175

THE COMMISSIONER: I need an answer also, as well as making the statement: that your discussions will continue with Barclay Mowlem; and that you are seeking to have discussions with the developer which so far the developer is declining to have.

PN176

MR MARSHALL: Yes, that's essentially the situation, Commissioner.

PN177

THE COMMISSIONER: So for the purposes of this file I would take it that if no further industrial action ensues after tomorrow and the employer hasn't exercised its right to lodge an application pursuant to section 127 of the Act in relation to the current industrial action, then this matter can be stood over for application to come back at urgent notice.

PN178

As to your problems with the developer, I'll have to leave you to it and you can notify your own dispute about that. As you're well aware I'm not very familiar, or I'm not familiar at all with the building industry, I've been roped into this, but if matters should get out of hand during this week or what remains of this week, then it will be relisted before me as Commissioner Harrison is in Melbourne for the week.

PN179

So on that note I'll adjourn the matter. Leave is reserved to either party to seek an urgent rehearing.

ADJOURNED INDEFINITELY [11.42am]