C2003/3936, Transcript of Proceedings [2003] AIRCTrans 2694 (26 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 10420
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2003/3936

MAINTENANCE RESOURCE
ENGINEERING PTY LIMITED

and

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
and ANOTHER

Notification pursuant to section 99 of the Act
of a dispute re the alleged introduction of a
second shift for construction works associated
with the HDS 2 Project

MELBOURNE

9.07 AM, FRIDAY, 13 JUNE 2003

Continued from 11.6.03

PN76

THE COMMISSIONER: Yes, Mr Douglas, are you going to kick off?

PN77

MR DOUGLAS: Thank you, Commissioner. Before I report back on the outcome of the discussions that we have had so far, we note this morning that we have been joined by a representative from the CEPU, presumably in the status of an intervener.

PN78

THE COMMISSIONER: Well, there is nothing to stop a representative from the CEPU sitting in the room at the moment. No-one has asked for anything; why don't you wait for something to happen?

PN79

MR DOUGLAS: Well, he is sitting at the bar - yes. Well, I perhaps foreshadow opposition to any application for intervention, Commissioner.

PN80

THE COMMISSIONER: Yes, all right. Well, tell me where we got to in negotiations.

PN81

MR DOUGLAS: Well, perhaps if I deal with the two issues together in the interests of brevity, if you like, Commissioner. In terms of the Japara, the claims by the union for the provision of a Japara jacket, the discussions centred on a possible negotiated settlement. Unfortunately, we were unable to settle the claim. There was an additional or an alternative claim put on behalf of the unions for the provision of a Driza-Bone coat. That claim is rejected.

PN82

THE COMMISSIONER: Yes, all right. Well, look, we haven't - that one is not actually listed, so it is not actually before me today, but thanks for telling me about it. I will note it in respect of the other file. It is up to the union to seek to reactivate that matter, it was the union's claim.

PN83

MR DOUGLAS: Yes,

PN84

THE COMMISSIONER: But the one that we are dealing with today is C2003/3936.

PN85

MR DOUGLAS: Yes. And I can report on that, Commissioner, that in substantial terms there were two issues which relate to the shift work. The first is a claim by the unions for a hundred shift loading. The second was that my client would provide 56 hours work per week on the site.

PN86

THE COMMISSIONER: Yes.

PN87

MR DOUGLAS: I can report that agreement has been reached or could be reached in relation to the working of the number of hours. My client is prepared, if the matter can be settled, to provide for 56 hours work per week.

PN88

THE COMMISSIONER: Yes.

PN89

MR DOUGLAS: However, the claim in relation to the hundred per cent shift loading is rejected.

PN90

THE COMMISSIONER: Yes. That, you said last time, was because in fact the agreement has been amended.

PN91

MR DOUGLAS: Yes. And the discussions we had in relation to that went to some of the history of the negotiations for that clause,and it was brought to the attention of the union that in fact there is a difference between the civil construction agreement to which the AWU is a party and the mechanical construction agreement to which the AMWU is a party. The differences in fact were sought by the AMWU when the mechanical agreement was negotiated, and on that basis it was put to the union that that was the clause it sought, that was the clause to which my client agreed, that was the clause which was inserted in the agreement and certified by this Commission, and that is the clause under which we seek that the shift work which is, I am instructed, to commence on Sunday night, are the conditions under which it is to be worked.

PN92

THE COMMISSIONER: Yes, all right. Now, just refresh my memory as to which of the agreements is the one that actually governs this situation.

PN93

MR DOUGLAS: Well, both agreements apply, sir. Both agreements - - -

PN94

THE COMMISSIONER: But I thought we were specifically talking about the one that Commissioner Whelan had certified on 24 January 2003.

PN95

MR DOUGLAS: Yes. Well, that is what I have called the mechanical agreement.

PN96

THE COMMISSIONER: Yes.

PN97

MR DOUGLAS: That agreement contains the shift work clause at clause 5(d) which provides that shift work is to be worked in accordance with the relevant terms of MECA, with the difference being that the divisor for the calculation of penalty rates is to be 35 in lieu of 38 contained in the award.

PN98

THE COMMISSIONER: Yes, all right.

PN99

MR DOUGLAS: If you turn to the construction agreement - or the variation to the construction agreement that was approved by His Honour Deputy President Hamilton, you will note that the shift work clause is also contained at 5(d). There is no substantial difference between the effect of the clauses. All that occurs in the construction agreement, sir, is that the MECA clause is reproduced in its entirety with again the difference being that where 38 hours is prescribed, that has been changed to 35 hours.

PN100

So in substantial terms, there is no difference between the two agreements, but the point we make and the point that was made to the union in negotiations yesterday was that in fact the terminology that was included in the mechanical agreement was terminology which was at the insistence of the AMWU, and we seek that that terminology continue to apply. It applies under the weight of the Workplace Relations Act given that it is now a certified agreement.

PN101

THE COMMISSIONER: Yes. But where does the 50 per cent clause, where is that located?

PN102

MR DOUGLAS: Well, the 50 per cent loading is a loading that appears in the award itself, sir.

PN103

THE COMMISSIONER: Yes. Have you got a copy of that?

PN104

MR DOUGLAS: I don't have the award with me, no, I am sorry.

PN105

THE COMMISSIONER: Mr Addison, have you located a copy of that?

PN106

MR ADDISON: Of - sorry?

PN107

THE COMMISSIONER: Mr Addison, you are not listening; goodness me. You haven't got a comic there to read, have you?

PN108

MR ADDISON: I have got a copy of MECA with me, Commissioner.

PN109

THE COMMISSIONER: Well, I am interested to identify - perhaps you and Mr Douglas might put your heads together and just identify the relevant provisions so that I have actually got it here in front of me.

PN110

MR ADDISON: Of MECA?

PN111

THE COMMISSIONER: No, I only want the particular clause about the 50 per cent that Mr Douglas has referred to. Which particular provision is it, Mr - - -

PN112

MR ADDISON: It is clause 29.5.1 of MECA, I think.

PN113

THE COMMISSIONER: Clause 29?

PN114

MR ADDISON: 29.5.1.

PN115

THE COMMISSIONER: Yes.

PN116

MR ADDISON:

PN117

Other than work on a Saturday, Sunday or holiday, the rate paid for afternoon or night shift shall be time-and-a-half and the rate for early morning and early afternoon shift shall be time-and-a-quarter provided that the employee is employed continuously for five shifts Monday to Friday in any week. The observance of a holiday in any week shall not be regarded as a break in continuity for the purposes of the subclause.

PN118

THE COMMISSIONER: Yes. So, Mr Douglas, is that the clause you are referring to?

PN119

MR DOUGLAS: That is precisely the clause, sir, yes.

PN120

THE COMMISSIONER: Yes, all right. Mr Addison, if my Associate could just take that and go make a copy of it, then I have got it here in front of me. Thank you. All right, Mr Douglas, anything further?

PN121

MR DOUGLAS: Well, other than to say, sir, that the dispute settlement procedure in relation to the two agreements in effect provides that matters in dispute are to be referred to the Commission and that the parties will accept the outcome.

PN122

THE COMMISSIONER: Yes.

PN123

MR DOUGLAS: We foreshadowed on the last occasion that in the event that we fail to reach an agreement with the union, we will be seeking a direction from the Commission that work should take place in accordance with the terms of the agreement, and in particular in relation to the working of shift work. If the matter cannot be resolved by agreement today, we will be seeking that direction.

PN124

THE COMMISSIONER: Yes, all right, fine, thanks very much.

PN125

MR DOUGLAS: If the Commission pleases.

PN126

THE COMMISSIONER: Yes, Mr Addison.

PN127

MR ADDISON: Yes, thanks, Commissioner. Commissioner, before I commence, maybe it is appropriate to announce additional appearances. I think I appeared on my own last time.

PN128

THE COMMISSIONER: Yes.

PN129

MR ADDISON: I appear this morning with MR B. WHELAN from the union and also obviously shop stewards from the site. Mr Whelan is involved in another matter next door and might have to duck in and out between the two matters.

PN130

THE COMMISSIONER: Yes, all right. Well, hopefully that is not starting till 10.

PN131

MR ADDISON: I think Mr Whelan has been involved since 8.

PN132

THE COMMISSIONER: Have you? Goodness me. Must be Commissioner Blair then.

PN133

MR ADDISON: Commissioner, last time I was here, I was here without any specific instructions.

PN134

THE COMMISSIONER: Yes.

PN135

MR ADDISON: Mr Douglas informed the Commission that a meeting had occurred between himself and the delegates on 6 June with regard to the shift work. There was a meeting yesterday afternoon which we agreed to have. At that meeting I attended. It was a fairly short meeting, I have got to say, Commissioner, because of time constraints on myself and also on Mr Robb who is one of the other Geelong organisers for AMWU who also attended the meeting. So the meeting went from approximately 2 o'clock through to about quarter-to-three. A number of issues - - -

PN136

THE COMMISSIONER: Right. Peace could be procured in 45 minutes if both sides are willing, of course.

PN137

MR ADDISON: Well, that is right, Commissioner, and we sought to deal with the two matters that are before the Commission. I understand that the Japara issue is not necessarily before the Commission this morning.

PN138

THE COMMISSIONER: Well, it is not only "not necessarily before", it has not been called on for this.

PN139

MR ADDISON: Yes, that is correct. However, it is a live issue on the site.

PN140

THE COMMISSIONER: Yes, certainly, yes.

PN141

MR ADDISON: And it was an issue that we believed ought to be dealt with in a package sense to try and resolve all of the outstanding issues on the site and come to, as you put it, a peace accord between the parties.

PN142

THE COMMISSIONER: Yes, yes.

PN143

MR ADDISON: At the moment we look more like the Israelis and Hamas than anything else. So we sought to deal with the matters as a package. We put together a package which we asked the company to consider overnight and also we would consider the matter overnight. I have got some additional instructions this morning which Mr Douglas wouldn't have heard yet, but there are other matters that need to be resolved. But let me go through the package. First of all - - -

PN144

THE COMMISSIONER: So just to be absolutely clear then, although the other matter regarding - which is - - -

PN145

MR ADDISON: The Japara.

PN146

THE COMMISSIONER: Which is matter C2003/3934 has not actually been listed for this morning, you put forward a package that deals both with the disputes in C2003/3934 and C2003/3936.

PN147

MR ADDISON: That is correct.

PN148

THE COMMISSIONER: Yes, thanks.

PN149

MR ADDISON: That is correct. Commissioner, the Japara is specifically a provision of the agreement with the AMWU and - - -

PN150

THE COMMISSIONER: Yes. Well, in fact, I think that specifically the agreement was for a site jacket and a brand name, I think it could be described as, is attached to that, Japara. But the primary term in clause 8(D)(1)(b) refers to:

PN151

Weekly employees may between 1 March and 31 October elect to be provided with a site jacket.

PN152

MR ADDISON: Yes.

PN153

MR WHELAN: And "Japara" after that.

PN154

THE COMMISSIONER: Yes, that is right, yes, but the primary term is "site jacket", yes.

PN155

MR ADDISON: Yes, hear what you say, Commissioner. We say Japara is the agreed matter between the parties. Now - - -

PN156

THE COMMISSIONER: Yes. And Mr Douglas on the last occasion actually highlighted the problem specifically with Japara jackets. But anyway, go on, Mr Addison.

PN157

MR ADDISON: That is right, that is right. Now, Mr Douglas has told me that Japara is not acceptable because it is synthetic - - -

PN158

THE COMMISSIONER: Yes, for safety reasons.

PN159

MR ADDISON: - - - and it is not allowed on the site.

PN160

THE COMMISSIONER: Yes.

PN161

MR ADDISON: Now, I had to ask people what a Japara was, I have got to be honest with you, Commissioner.

PN162

THE COMMISSIONER: Indeed, and I would have had to, too, yes.

PN163

MR ADDISON: I am instructed that it is actually not synthetic. However, put that aside. What I had suggested to the company yesterday was a Driza-Bone, a specific brand, Thomas Cook. I happen to own one so I know what it is like.

PN164

THE COMMISSIONER: They are quite expensive, aren't they, Mr Addison, that is very chic of you.

PN165

MR ADDISON: They are not that expensive.

PN166

MR WHELAN: They are cheaper than a Japara.

PN167

MR ADDISON: They are not that expensive, Commissioner.

PN168

THE COMMISSIONER: Really? They are cheaper than Japaras, are they?

PN169

MR ADDISON: I have no idea whether they are cheaper or more expensive and I really don't care. If this company is buying them in bulk, whatever the retail price is, I am sure they can get them for cheaper than retail. So it was a suggestion to try and resolve the matter. It is waxed cotton, it is not synthetic, it is fully lined with wool, it has a hood, etcetera, etcetera, etcetera. So it was a suggestion to try and resolve that matter, nothing more, and I asked the company to consider that.

PN170

THE COMMISSIONER: Yes.

PN171

MR ADDISON: The second matter that we put to the company, this company has been working 51 hours, as I understand it, or 51-1/2 hours on the site since the inception of the job, and there is a perception on the site, and I think a true perception on the site, that that arrangement was arrived at simply to avoid paying tea money to employees. The normal process on a construction site like this is a 56-hour week, people get their tea money. So we suggested that a 56-hour week should be put in place starting Monday. That was agreed between the parties at that point in time. But we see this as a package, so that was agreed as a specific item by Mr Mathieson yesterday afternoon.

PN172

We also suggested to the company that they all put their bona fides on the table and arrive at a negotiated settlement of back pay for the tea money. The third - - -

PN173

THE COMMISSIONER: Which would involve how much?

PN174

MR ADDISON: We didn't specify an amount. We just simply said as a sign of good faith, you know, it would grease the wheels, Commissioner, it would grease the wheels. The third issue - sorry, the fourth issue that we talked about was the allowance. Now, we talked in terms of a compromise position of 75 per cent. I have got to say the mass meeting resolutions - I am instructed there have been mass meetings on this question. Mass meeting resolutions are 100 per cent. The employees are seeking 100 per cent, and I am instructed - - -

PN175

THE COMMISSIONER: But how can they seek something that they are not entitled to?

PN176

MR ADDISON: Well, the difficulty, Commissioner, is this - - -

PN177

THE COMMISSIONER: In terms of the agreement for no extra claims.

PN178

MR ADDISON: The difficulty is this, Commissioner. Most of the people on this job have come from other construction jobs.

PN179

THE COMMISSIONER: Yes, yes.

PN180

MR ADDISON: Now, night shift is traditionally not worked in construction for health and safety concerns as much as anything else. It is traditionally not worked. It is sometimes worked when projects are in a hurry or they are behind or whatever. Nobody can argue that this project is not behind. Originally I was told this project was starting January. In January I made some inquiries and I was told it would be six weeks late, so that would have made it late February, early March. As it happens, the project didn't start till April in any real sense, so clearly the project is behind.

PN181

On those occasions when projects are behind and night shift is worked, there is generally an approach from the employer to the union and the employees with regard to starting night shift, and a bit of a tradition has grown up around that, and 100 per cent - - -

PN182

THE COMMISSIONER: I am not interested in tradition, I am interested in agreements.

PN183

MR ADDISON: And 100 per cent has been paid on virtually every job where night shift has been worked in the last three or four years. There is a range of people from a range of jobs where that has been the case.

PN184

THE COMMISSIONER: Yes, but there is an agreement in place, isn't there, Mr Addison?

PN185

MR ADDISON: There is an agreement in place, yes, Commissioner, there is. There is also a requirement - - -

PN186

THE COMMISSIONER: And there is an award in place.

PN187

MR ADDISON: That is right, and the award requires agreement between the parties with regard to the arrangement of hours of work and requires agreement between the parties as to the starting and finishing times of shifts. Now, if there is to be a shift when you can reach agreement on what the shift is going to look like.

PN188

Now, there is also a range of local issues, Commissioner, which we said need to be resolved, and I only gave one example last night because of the short nature of the meeting yesterday, I wasn't in a position to get full instructions. I have subsequently got some more instructions, but I had raised one issue which was the issue of a peggie on the night shift. I have subsequently been instructed that there are a range of local issues that people seek to be resolved.

PN189

The first is the question of living away from home allowance. I am instructed that this company is paying well below the going rate in terms of living away from home allowance. There would be the health and safety issues associated with a night shift, ie lighting. I am instructed that there are a range of PIN notices which are current on the site and those PIN notices have been issued not only by the health and safety representatives on the job, but also by WorkCover, and we would want to be assured with regard to occupational health and safety particularly if there is going to be a night shift established. We have got some real concerns with regard to that matter.

PN190

The other issue is a respirator allowance. I understand that there is a live claim for a respirator allowance on the site. It has been raised with the company, I am instructed, on a number of occasions. The work that is being done is being done - the welding work - being done predominantly on galvanised steel and also on stainless and there is a requirement for people to wear a respirator. Now, there is provision in the agreement for a respirator allowance and that provision is at clause 4(iv), breathing apparatus allowance, which effectively reads:

PN191

Where breathing apparatus equipment is required to be worn, a C class clothing rate shall be paid.

PN192

And if you go back to clause 4(b):

PN193

Where a C class clothing is required to be worn, a payment of $1.95 per hour will be paid with a minimum of three hours payment.

PN194

So currently people are wearing breathing apparatus equipment - ie a respirator - and not being paid the allowance. I understand that is a live issue on the site and it is a local issue that needs to be resolved.

PN195

And finally there is an issue for the employees from Queensland on the job. My instructions are that there are about 11 or 12 employees on this job who have been brought from Queensland to work on this job. As well as the tradespeople who have been brought from Queensland, there are a range of supervisors. Now, there are disproportionate benefits being given to these two sets of employees. The Queensland foremen are being given a flight home every eight weeks to visit their family whereas the tradespeople are being given a flight home every 16 weeks to visit their family. That is a matter of some concern to our members. Our members say that is disproportionate, it is unfair and it is not proper. So we have said to the company we want to - - -

PN196

THE COMMISSIONER: But what was agreed on and what is obliged to be provided?

PN197

MR ADDISON: I don't know that there is anything in the agreement that deals with that matter, Commissioner.

PN198

THE COMMISSIONER: But what did people agree on when they were taken on?

PN199

MR ADDISON: Commissioner, my understanding is that when people came to Melbourne, they understood that they would get the same benefits as everybody else. That is my clear understanding. So these issues are live issues. They have been alive on the site for a long time I am instructed. We did put together this package in a spirit of co-operation and in a spirit of trying to reach an agreement. I have had some feedback this morning from various people that - - -

PN200

THE COMMISSIONER: But you are only telling me, Mr Addison, that you are actually now saying a whole heap of things that you didn't actually say at the meeting yesterday.

PN201

MR ADDISON: Yes, that is right, that is right. And on the basis of that - I had said to Mr Douglas at the end of the meeting yesterday afternoon and Mr Mathieson the stewards should be in the Commission tomorrow. We have put the package together, we want you to think about it overnight, then we will have to have a talk in the morning, and it would be a good idea if the stewards were in the Commission, and obviously the stewards are here so that is good. I think the way to resolve this is by direct negotiation and discussion.

PN202

THE COMMISSIONER: Look, I must say - I will come back to you in a moment, Mr Douglas. Of course, I do actually want to ask Mr Borenstein whether he is just here for the pleasure of the sitting in or whether he has got a more specific purpose for being here and I will do that after you have finished, Mr Addison.

PN203

MR ADDISON: Yes. Well - - -

PN204

THE COMMISSIONER: But it does seem to me - at this stage what appears to me to be a sensible thing to do is actually to allow some direct discussions without my involvement and then I will come up and see where you are at and see how we want to proceed from there, whether I want to break your arm - - -

PN205

MR ADDISON: I am happy with that, Commissioner. I was just about to suggest we go into conference.

PN206

THE COMMISSIONER: Yes, yes.

PN207

MR ADDISON: And if Mr Borenstein is seeking to intervene, the AMWU does not object.

PN208

THE COMMISSIONER: Yes, all right, fine. Mr Borenstein.

PN209

MR G. BORENSTEIN: Thank you, Commissioner. Firstly, from what I have seen, we weren't notified of this industrial dispute, and I am not sure if that is correct, but I think it is, given Mr Douglas' reaction to us being here. We are bound by the award that covers this workplace. I am happy to leave if Mr Douglas - - -

PN210

THE COMMISSIONER: Well, you don't have to leave the room, Mr Borenstein. You don't need my consent to your intervention to sit in the room.

PN211

MR BORENSTEIN: Well, we would like to also participate in any conference that does occur - - -

PN212

THE COMMISSIONER: Yes, sure.

PN213

MR BORENSTEIN: - - - but if Mr Douglas gives the undertaking that any matters resolved here don't apply to the electricians in the workplace, we would happily leave the Commission, and I have got a number of other things I could be doing. But I can't understand why we weren't notified of the dispute when we are bound by the award that the dispute is brought under and that our members are working under in the workplace. If he doesn't have a dispute with our members, well, so be it.

PN214

THE COMMISSIONER: Yes. Well, the notification related to the Australian Manufacturing Workers Union and the Australian Workers Union and so they are who have been notified. Why don't you leave it at that, Mr Borenstein, and I will go over to Mr Douglas.

PN215

MR BORENSTEIN: Well, yes, if Mr Douglas gives the appropriate undertaking, I would certainly consider it.

PN216

THE COMMISSIONER: Yes, leap to your feet, Mr Winter.

PN217

MR WINTER: Thank you. Just a number of points because I think a couple of points haven't been touched on. My colleague from the metal workers has gone through the outstanding issues, and you might be aware that I was in the same position as the metal workers the other day - - -

PN218

THE COMMISSIONER: Yes.

PN219

MR WINTER: - - - where I hadn't had any instructions and our organiser is on leave in Tasmania, and I have with me Mr Dundon here, our senior delegate. But I also spoke to the organiser concerned and he raised a number of points that the metal workers have put before you. One of his main concerns was in relation to the PIN notices which were touched on. There are a number of outstanding PIN notices that affect issues such as electrical, such as supervision. There are issues with lighting as I understand. And they all have an impact on any issue of night shift for a start and they need to be dealt with.

PN220

THE COMMISSIONER: Yes, all right. And so you are concurring with what Mr Addison has said?

PN221

MR WINTER: But also the night shift provisions that were mentioned, it was only mentioned that the MECA award was involved. The AWU also has - our agreement is also linked to the AWU Construction and Maintenance Award which has slightly different provisions for night shift. And also the night shift itself where - - -

PN222

THE COMMISSIONER: Do you have those provisions there, Mr Winter?

PN223

MR WINTER: I haven't, unfortunately. I didn't bring the award with me.

PN224

THE COMMISSIONER: Well, perhaps if you actually tell my associate. When we adjourn I can go and locate them, thanks.

PN225

MR WINTER: Thank you. In relation to the shift work itself, a lot has been talked about in regard to the shift loading but the actual - there has been a lack of discussions on how shifts would work. For instance, there may be a need for rotating shifts.

PN226

THE COMMISSIONER: Yes.

PN227

MR WINTER: Our members, in some instances, feel that the issue of shift work can have a major impact, especially a permanent night shift arrangement can have an impact on a lot of people and it may be more appropriate to consider other issues such as rotating shifts, etcetera, and those sorts of issues haven't been canvassed. So I think that the parties here are focusing on points such as this 75 per cent loading or 100 per cent loading but they are not looking at the full picture and I think Mr Addison is totally correct that these issues have to be resolved before - even if we resolve the issue of the loading it is not going to resolve the issue of working night shift.

PN228

THE COMMISSIONER: Yes, all right. Well, you are all here so we will all be able to talk about it. Mr Douglas.

[9.34am]

PN229

MR DOUGLAS: Thank you, sir. Perhaps if I firstly deal with the situation involving the CEPU.

PN230

THE COMMISSIONER: Why don't we deal with that and why don't I then let you go into conference to have some direct discussions?

PN231

MR DOUGLAS: Well, there is some matters that I wish - there has been some claims put on the record, sir, and - - -

PN232

THE COMMISSIONER: Yes, well, that is all right. Look, what I am worried about, I have a 10 o'clock - I have got a 10 o'clock conciliation. I would like to stay with this and try and see it through to some resolution. And I think you are going to need to have a conference to progress that. I would be happy to come back into this matter as soon as I can this morning, if that is going to suit the parties.

PN233

MR DOUGLAS: Well, perhaps a course of action could be that if I could just put some matters on the record.

PN234

THE COMMISSIONER: Yes.

PN235

MR DOUGLAS: We could then adjourn into conference, which Mr Addison has foreshadowed.

PN236

THE COMMISSIONER: Yes.

PN237

MR DOUGLAS: In the event that that is unsuccessful in resolving the issues, then the matter could be called on.

PN238

THE COMMISSIONER: Yes.

PN239

MR DOUGLAS: There has been a number of issues raised, particularly by Mr Addison. Interesting, Mr Addison must have some time on his hands this morning. He has certainly been able to fill in quite a bit of detail. In terms of the actual - and I know this is not a matter before the Commission formally. However, as Mr Addison has put, it is part of the package in relation to this issue involving the Japara.

PN240

THE COMMISSIONER: Yes, I am happy to draw it in as part of a global - - -

PN241

MR DOUGLAS: Yes. Well, perhaps - sorry, sir, just before I go to that, the position in relation to the CEPU is relevant. The CEPU is unquestionably party to the MECA award, there is no issue about that. however, some of the background in relation to the status of the CEPU beyond that is relevant, and we welcome the opportunity to put that on the record. And we do so on the basis of our opposition to any application for intervention. Despite some 18 months of negotiations and requests of the CEPU as recently as one or two weeks ago, I am instructed, the CEPU is not party to any agreement in relation to any of the work that is the subject of these proceedings.

PN242

There are a range of reasons for that, which I won't go into, but the CEPU has, of its own actions, decided it chooses not to be a party to any agreement. And it is on the basis that they are not party to any agreement, despite being given ample opportunity to be so. We strenuously oppose any application for intervention in these proceedings. Furthermore, in relation to the - no electrical employees attended the meeting yesterday. The Commission can draw its own inferences from that, but we would encourage the Commission to draw the inference that none of the electrical staff have any problems with any of the issues which are the subject of these proceedings.

PN243

And so it is on those two bases that we say that the application for intervention by the CEPU should not be granted. And we object to the CEPU therefore being party to any discussions which are to take place between AWU and the AMWU in relation to these issues.

PN244

THE COMMISSIONER: Well, what is your problem with Mr Borenstein being able to sit in on your conference?

PN245

MR DOUGLAS: Well, perhaps it could be put in the converse, sir. What is the problem with the CEPU insisting on not being party to any agreements? They choose not to be party of any agreements.

PN246

THE COMMISSIONER: Yes.

PN247

MR DOUGLAS: We are here today talking about matters contained within agreements. And on the basis that they don't want to be a party to an agreement, the logic then takes you to the position that therefore what positive steps could they take to assist the parties in trying to reach agreement, particularly when none of their members - or we don't know of their members, but no electrical staff attended the meeting yesterday, where these matters were discussed. So we were - - -

PN248

THE COMMISSIONER: Yes. Well, it just seems to me, Mr Douglas, that Mr Borenstein is here. You are about to have some discussions. I wonder what harm there can be without my making a decision on his request for consent to his intervention, if he is actually sitting in on the meeting.

PN249

MR DOUGLAS: Yes. All we can do, sir, we put on the record our strenuous opposition to any application of intervention and if the Commission were to rule against us we will abide by that ruling.

PN250

THE COMMISSIONER: Yes. No, I am not interested in making a ruling. I just recommend to you that Mr Borenstein be allowed to sit in on the discussions you are about to have.

PN251

MR DOUGLAS: Yes. In terms of the issues raised by Mr Addison, firstly the - - -

PN252

THE COMMISSIONER: If I were to deal with the intervention issue, I would want written submissions, of course. So I am not making a decision on intervention, I am simply recommending that Mr Borenstein be allowed to sit in on your discussions. And I can't see what harm would be posed by his doing so.

PN253

MR DOUGLAS: Yes, if the Commission pleases. In terms of the issues raised by Mr Addison, firstly, and I will be extremely brief on all these matters. The issue of the make-up or the materials that go to make up the Japara, we take issue with the fact that - I think it has now been put that it is not synthetic. In that regard we would draw the Commission's attention to exhibit R2 in these - or in the other proceedings.

PN254

THE COMMISSIONER: Yes, well, let us not get bogged down in that.

PN255

MR DOUGLAS: It is clearly a synthetic material.

PN256

THE COMMISSIONER: No, let us not get bogged down in that. I think what Mr Addison was really saying was, well, if there is a problem with Japara jackets, given that there is an agreement about site jackets, they are happy to negotiate on what kind of site jacket would be adequate and appropriate. So that is the issue, yes.

PN257

MR DOUGLAS: Yes, and we are happy to join in those negotiations. In terms of the rationale behind the working of the night shift, it is not because the job is behind. The nature of the work to be performed is major welding work, and the fact of the matter is that work is best done when there is a - the other employees are not around, and that is the reason for the night shift. Not because the job is behind in any way.

PN258

THE COMMISSIONER: Yes.

PN259

MR DOUGLAS: In terms of the other issues which Mr Addison put, in terms of what is called, the peggie on night shift, there has been a peggie allocated. And so I am instructed that issue has been resolved. In terms of the living away from home allowance, the allowance - the agreements are to be read in conjunction with MECA. That prescribes a living away from home allowance, and I am instructed that is being paid.

PN260

In terms of the lighting for the night shift, I am instructed that in fact the lighting is being installed as we speak and that will be ready for the work to be commenced, which is due to commence on Sunday. In terms of the PINs, the provisional improvement notices, I am instructed that all have been rectified to the satisfaction of the relevant authority, and so that matter has been resolved.

PN261

THE COMMISSIONER: So an inspection could take place tomorrow with respect to those matters.

PN262

MR DOUGLAS: Yes.

PN263

THE COMMISSIONER: To ensure that they had actually been done properly.

PN264

MR DOUGLAS: Yes. In terms of the respirator allowance, yes, there is a clause in the agreement to the extent that that allowance is payable for the work that will be done. The supervisors to whom Mr Addison refers - this goes to the nature of the project. I am instructed that they are not employees of Maintenance Resource Engineering. They are in fact employees of CBI, which is the construction manager. And so we have no control over the conditions of employment that CBI chooses to extend to its employees. And in terms of the issue raised by Mr Winter that there may be a need for rotating shifts, I am instructed that that is not the case.

PN265

THE COMMISSIONER: Yes, all right. You have no objection to going into conference at this stage, Mr Douglas?

PN266

MR DOUGLAS: No, sir, other than we just reiterate our objection to the CEPU being in attendance.

PN267

THE COMMISSIONER: Yes.

PN268

MR DOUGLAS: But we note the ruling of the Commission on that matter.

PN269

THE COMMISSIONER: The recommendation.

PN270

MR DOUGLAS: Recommendation.

PN271

THE COMMISSIONER: The recommendation of the Commission. Mr Borenstein is a very agreeable person who won't hurt being in a room. Well, I think that what I will do is adjourn, and I am just wondering - you have actually got quite a range of issues. I think you are going to need at least half an hour to talk through those. Why don't I send my Associate to check to see how you are doing at say, quarter past 10. Make sure you are still in one piece. And we will just work it out then. But I am happy to go back on the record with this matter later in the morning, because I would like to try and reach a resolution of it today, to the extent that it is able to be done. It may well be that there is some site inspection that needs to occur, Mr Addison. Yes.

PN272

MR ADDISON: Can I just say one thing, Commissioner? Whatever we agree on, if we reach an agreement - - -

PN273

THE COMMISSIONER: Yes.

PN274

MR ADDISON: Whatever we agree on, will have to be subject to a mass meeting.

PN275

THE COMMISSIONER: Yes.

PN276

MR ADDISON: So we will have to go back to the troops.

PN277

THE COMMISSIONER: Yes.

PN278

MR ADDISON: And the troops are going to have to endorse whatever is agreed on.

PN279

THE COMMISSIONER: Well, you are going to have your site inspection tomorrow, you are going to need a mass meeting.

PN280

MR ADDISON: Saturday is tomorrow, you realise, Commissioner?

PN281

THE COMMISSIONER: Sorry, Saturday is tomorrow, yes.

PN282

MR ADDISON: So - not that I object to - well, I object - no.

PN283

THE COMMISSIONER: Yes.

PN284

MR ADDISON: I prefer not to go down there Saturday. But if that is a necessary arrangement then it is a necessary arrangement, and I will make myself available. But, yes, I just wanted to make it clear so everybody understands, it will be subject to a mass meeting.

PN285

THE COMMISSIONER: Yes, all right. Mr Winter.

PN286

MR ADDISON: And if I can just put one other thing, Mr Douglas has said that the agreement provides for the Commission to be able to deal with the matter. The disputes settling procedure in the agreement in fact does not, I have got to say. The agreement does not - - -

PN287

THE COMMISSIONER: Well, there will be nothing you can say to me that will stop me from issuing a recommendation - - -

PN288

MR ADDISON: No, I accept that.

PN289

THE COMMISSIONER: If I feel inclined to do so.

PN290

MR ADDISON: I accept that, Commissioner. I accept that. You have got those powers, but section 170LW will not apply in this particular case. If the Commission pleases.

PN291

THE COMMISSIONER: Yes. Yes. All right, I note your views on that. Mr Winter.

PN292

MR WINTER: Just in relation to timing, if I could make you aware that I will have to leave at 10.30 unfortunately, but Mr Dundon will be able to represent the AWU.

PN293

THE COMMISSIONER: Good. Great. All right, I will now adjourn. My Associate will come and check how you are doing at quarter past 10, thank you.

SHORT ADJOURNMENT [9.44am]

RESUMED [12.28pm]

PN294

THE COMMISSIONER: Yes, Mr Douglas, I will hear from you first, just in terms of where you got to in that conference.

PN295

MR DOUGLAS: Well, Commissioner, we have been unable to settle the matter. The issues remain outstanding almost in their totality. I am instructed by my client that it continues to wish to commence the night shift on the evening of this Sunday at 5 o'clock and the other issues which were raised by Mr Addison in the course of the hearing, we can give an undertaking to the union that we will respond to those.

PN296

THE COMMISSIONER: By when?

PN297

MR DOUGLAS: By no later than Monday afternoon. And that is where it sits, Commissioner.

PN298

THE COMMISSIONER: Yes, all right. Thanks very much, Mr Douglas. Mr Addison.

PN299

MR ADDISON: Yes, thanks, Commissioner. Commissioner, I think Mr Douglas puts it correctly that we went through a list of issues. I certainly have asked for a response and I thank Mr Douglas for his offer of a response. With regard to shift work starting on Sunday evening we would say that that would not be possible in any event. There are extant WorkCover issue PIN notices on the site. It is my instruction that WorkCover will not attend the site until Monday and that should WorkCover not be satisfied then those extant notices would continue in force.

PN300

THE COMMISSIONER: That is an issue which sits above the whole process anyway if you like, Mr Addison.

PN301

MR ADDISON: Clearly, Commissioner, but - - -

PN302

THE COMMISSIONER: Whatever I am to say today, if there is, if you like, a legal obstruction arising from something of that kind then that is going to be something which the company has got to deal with.

PN303

MR ADDISON: Yes. Well, that is the first issue, Commissioner, is the extant notices. The second issue is, as I said earlier, we don't believe there has been sufficient consultation and sufficient agreement with regard to starting any shift in any event. If I can refer the Commission to the Australian Workers Union Construction and Maintenance Award 2002, clause 28.2 of that award which deals with - - -

PN304

THE COMMISSIONER: I don't have that award in front of me so you will have to - - -

PN305

MR DOUGLAS: Commissioner, if I could just raise at this stage, the point being that that is not the award of course under which work under the agreement is to be performed. I am not too clear why it is at this late stage reference can be made to the AWU Maintenance and Construction Award when that award itself is not an award which is to be read in conjunction with the agreement. If the Commission pleases.

PN306

THE COMMISSIONER: Yes, all right, thanks. Mr Addison, yes.

PN307

MR ADDISON: Commissioner, I think you will find there are two groups of employees who will be involved in the shift, the trades people, obviously, and members of the AMW - in fact, I think you will find there is three. The trades people are members of the ETU or the AMWU. The ..... and riggers who will be involved in the shift are members of the AWU. But as I am instructed the AMWU agreement - - -

PN308

THE COMMISSIONER: Well, I am only dealing with two unions in this matter.

PN309

MR ADDISON: Well, even if we confine it to those two, it is the AMWU and the AWU, and I am instructed that the AWU agreement is read in conjunction with the Construction and Maintenance Award 2002.

PN310

MR DOUGLAS: They have been overpaid on a few allowances, haven't - - -

PN311

THE COMMISSIONER: It is all right, Mr Douglas. Yes, go on, Mr Addison.

PN312

MR ADDISON: That requires - that award requires, clause 28.2, that:

PN313

...shift shall be worked according to a roster which shall provide for rotation of shifts unless all of the employees concerned agree otherwise.

PN314

Now, Commissioner, we have had a bit of a debate with regard to the shift issues and it is true to say we didn't get into the meat, so to speak, of all the shift issues but certainly one of the issues that we have tabled with the company is that we would seek rotating shifts. The company's position is that they don't agree with that and they want a static shift. Now, we would say that under the terms of the award, the AWU award at least, there must be agreement on that matter. So we say that it would be premature at this point in time for the Commission to issue either a recommendation or a direction or any other proposition. It may be appropriate for the Commission to issue a statement with regard to where we currently are and the words of that - either yours or agreed between the parties - - -

PN315

THE COMMISSIONER: You leave wording to me, Mr Addison, thanks. I have noted your comments, yes.

PN316

MR ADDISON: So we are happy to have a response from the company on the local issues. We are happy to continue the consultation with the company. We are happy once those local issues and that occ health and safety issues have been sorted out to come to some agreement with the company as to what the appropriate arrangements for a shift would be. I would leave my comments at that, if the Commission pleases.

PN317

THE COMMISSIONER: Yes, fine, thanks. Anything from any of the other unions or are you happy to rely - do you feel Mr Addison has adequately represented your interests? Mr Borenstein, I haven't granted you leave but has Mr - yes, go on.

PN318

MR BORENSTEIN: Without leave to intervene do I assume that the recommendation will apply to electrical members?

PN319

THE COMMISSIONER: Any recommendations I issue will apply to those parties who are a party to these proceedings.

PN320

MR BORENSTEIN: So it doesn't apply to the members of the parties who aren't parties to the proceedings?

PN321

THE COMMISSIONER: Well, it applies to the people who are formally parties to these proceedings.

PN322

MR BORENSTEIN: Okay. Well, if - - -

PN323

THE COMMISSIONER: Sit down, Mr Borenstein. Thank you. I have had the opportunity to hear submissions over two days on this matter and have had the opportunity to confer at some length with the parties this morning in the midst of some other commitments elsewhere in the Commission on my part and the part of other people involved in this matter and I think it is regrettable that the parties haven't been able to reach agreement but I am not prepared to leave the matter hanging.

PN324

I actually believe that this shift should get up and running but I take Mr Addison's point that it can't get up and running on Sunday night. I also take the point that Mr Addison has raised a number of matters of concern but I am not sure that I think they are precisely relevant to the issue of the shift starting, noting the safety issues that you have raised, but certainly I believe that the company should address those issues. Accordingly, these are the recommendations that I intend to issue today. Having heard the submissions of the parties in this matter on 11 June 2003 and 13 June 2003 and having had the opportunity of conferring with the parties today I make the following recommendations.

PN325

Firstly, that night shift as proposed by Maintenance Resource Engineering commence on the HDS 2 project on the basis of a 56-hour weekly shift cycle on Monday, 16 June 2003 at 5 pm, and with a shift allowance at the site of time and a half as prescribed in clause 29.5.1 of the MECA Award.

PN326

Secondly, that Maintenance Resource Engineering is to respond to those issues raised by the AMWU formally today in the Commission by 3 pm on Monday, 16 June 2003. Such issues which are then outstanding are to be resolved pursuant to the provisions of the Maintenance Resource Engineering Proprietary Limited Shell Geelong Refinery Mechanical Enterprise Agreement 2002-2005, agreement 821185, and I might say any other agreement that may relevantly apply. And I note that I will allow the matter to be re-listed on the application of either - or any of the parties, I should say, on 24 hours notice. So if I receive an application at any time on Monday for the matter to be re-listed for Tuesday I will re-list the matter for Tuesday.

PN327

I thank the parties for their submissions and participation in the conference. I urge the parties to work together to try and achieve a resolution of all the outstanding issues but I do, as I say, strongly recommend that this shift be allowed to commence on the Monday evening. Thank you very much. I now adjourn.

ADJOURNED INDEFINITELY [12.38pm]