C2003/2616, Transcript of Proceedings [2003] AIRCTrans 2417 (17 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 2957

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/2616

RESTRICTIONS IN TORT

Notice under section 166A of the Act
by BFB Projects Pty Ltd re an industrial
action at the Campbellfield site

MELBOURNE

8.38 AM, FRIDAY, 30 MAY 2003

PN1

MR B. SHAW: I seek leave to appear for the notifier and if so granted leave appear with MR S. HINES.

PN2

MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union together with MR A. MULIPOLA.

PN3

THE COMMISSIONER: Do you have any objections to Mr Shaw seeking leave?

PN4

MR ADDISON: No, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Mr Shaw. Yes, Mr Shaw.

PN6

MR SHAW: Thank you, Commissioner. The application - or the notification I should say was made on Wednesday afternoon at a time when action, I loath to call it industrial action, action certainly had taken place and as far as the company was - was still taking place. The action that took place was an entry to the site by members of the AMWU - officers I should say of the AMWU, as far as I am aware, and those people directed the - a crane crew; the mobile crane hire company to cease unloading steel that had been delivered from Blue Frame Buildings and that effectively stopped that work and disrupted the site for the remainder of that day. I am instructed that yesterday morning the action or the conduct was not renewed and, as far as I am aware today, there is no such conduct taking place.

PN7

Indeed there is a concrete pour taking place right now we believe. The phone has been ringing a bit so we hope it is going all right but it is for technical reasons if it is not, not for industrial ones. With the structure of the Workplace Relations Act and particularly section 166A, as the conduct has ceased in a sense the - so has the notice but as there clearly was conduct taking place, it would be the submission of the notifier that the matter be adjourned sine die so that should the conduct be renewed the notifier could rely on section 166A subsection 7 to have the matter re-listed without the need for a further notice and obviously endeavour to persuade the Commission that any new conduct was a continuation of the old conduct and the time therefore that is already expired and I presume that is really only from 4 o'clock on Wednesday to yesterday morning be incorporated in the 72 hours.

PN8

THE COMMISSIONER: Right. Thank you, Mr Shaw. Do you wish to make any submission, Mr Addison?

PN9

MR ADDISON: Just these, Commissioner. Commissioner, we were here last week with regard to a section 127 and a section 170MW application. At that time the Commission issued an interim 127 and a suspension of bargaining period for the period of the interim 127, as I understood the Commission's position. The Commission also directed the parties to have some discussions to try and resolve the matter. Mr Mulipola has attempted to have discussions with the company around the issues that are between us and has been unsuccessful in that. The company has basically told him they are not interested in talking.

PN10

That gives us some concern, Commissioner. There is no action currently happening. "Action" is probably the wrong word. I think Mr Shaw is correct when he used the word "conduct" which is the word of the section. There is no conduct occurring which would attract a 166A certificate, in my submission. That is not to say that the issues between the parties are resolved. They are not. Commissioner, I have asked Mr Shaw whether the employer is prepared to have some discussions this morning. Mr Shaw is going to get some instructions on that but we really do need to sit down with the employer and see if we can come to some agreement around the matters between us.

PN11

I would seek that the Commission issue a direction; formal direction with regard to that under section 111(1)(t) in the absence of agreement to meet, that the parties be directed into discussions to see if the matters between us can be resolved with a report back to the Commission if that is appropriate at some junction, maybe in a week's time. If the Commission pleases.

PN12

THE COMMISSIONER: Right. Thank you. Mr Shaw, do you wish to say anything on that?

PN13

MR SHAW: Yes. But firstly, this party is not the same party. This company is a separate company with different directors. It does - you don't have to be Einstein to work out that BFB and Blue Frame Buildings have something in common and it does indeed erect materials that are manufacturing by the company that was the applicant and notifier in the other two matters Mr Addison referred to. This company in fact employs CFMEU members. It does have a current patented certified agreement on its sites, that apply to its sites. It doesn't employ any members of the AMWU.

PN14

It is not in a position obviously to have any discussions with Mr Addison nor was it the subject of your recommendation. The action that took place on Wednesday, as I think anybody would have expected, presumably the union didn't expect it, but has not really enamoured my client in the other matter, that is the CEO of Blue Frame Buildings into having discussions with the union. I am prepared to have a further discussion with them. The attitude that was taken on last Friday by the company was that it wouldn't put anything in the way of the union exercising its rights pursuant to the Act.

PN15

It was indeed quite happy to distribute AMWU material but it was up to the union to get its own members rather than the company enter into some sort of certified agreement with the union and give the union the opportunity to recruit members by saying how successful it was. Now, that probably remains the situation. I am perfectly happy to give an undertaking that when I get back to my office I will contact the company in Shepparton, that client and see if some sort of discussion can't be set up.

PN16

It would seem logical to do so but beyond that I can give no undertakings and I would think, and I making submissions here without instructions, but I would think that unless the company has changed its views dramatically, that it wouldn't go any further than agree to have some sort of discussion and perhaps renew the position it put last Friday. As a result of the action on Wednesday, of course, it is less inclined to do so but I can certainly have discussions.

PN17

THE COMMISSIONER: Right. Thank you. Well, the Commission won't issue a direction though it would recommend that the parties do confer, that Blue Frame Constructions and the AMWU have some discussions. If, in the event that those discussions don't prove to be fruitful, then either party, in this instance I would assume it would be the AMWU, is free to have the matter brought back on or at least ask the Commission to convene a conciliation conference and we will take it from there I think. Okay.

PN18

MR SHAW: Yes.

PN19

MR ADDISON: If the Commission pleases.

PN20

THE COMMISSIONER: Good. Thank you. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [8.47am]