|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N WT0424
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT MCCARTHY
C2003/166
APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION
Application under section 127(2) of the
Act by John Holland Pty Ltd for an order
to stop or prevent industrial action at the
Products and Capacity Expansion (PACE)
Project Site in Port Hedland
PERTH
12.17 PM, WEDNESDAY, 18 JUNE 2003
PN1
MR P. COOKE: I appear on behalf of the applicant employer, John Holland Pty Ltd, if it please the Commission.
PN2
MR L. EDMONDS: I appear on behalf of the Australian Manufacturers Workers' Union, sir.
PN3
THE DEPUTY PRESIDENT: Thank you Mr Edmonds.
PN4
MR T. DALY: I appear on behalf of the Australian Workers' Union.
PN5
THE DEPUTY PRESIDENT: Good afternoon Mr Daly. Mr Kucera, you are appearing for the CFMEU I take it?
PN6
MR T. KUCERA: Yes, sir, good afternoon.
PN7
THE DEPUTY PRESIDENT: Seeking leave I take it?
PN8
MR KUCERA: Yes sir.
PN9
THE DEPUTY PRESIDENT: Any objection to that?
PN10
MR EDMONDS: Sir, I believe it is appropriate for me to seek leave as well, sir.
PN11
THE DEPUTY PRESIDENT: Okay, any objection to that?
PN12
MR COOKE: None at all, sir.
PN13
THE DEPUTY PRESIDENT: Okay, leave is granted in both cases. This is a 127 application, I issued a notice of listing yesterday, together with that notice of listing requirements that service be effected. A couple of other things which I think have been complied with, notwithstanding that notices were also sent to the other parties, if I can class them that. So Mr Cooke?
PN14
MR COOKE: Thank you, sir. Yes indeed, in order to facilitate things, sir, we received the notice from your Chambers at about 16.25 yesterday, but were unable to have served it prior to this morning, but it was served this morning. However, we note that that service was - that notice was also sent through to the respondent union. We did however, take the opportunity yesterday afternoon when we were advised verbally by your Chambers that the matter would be listed at midday today, sir. But we sent through the application as filed in the Commission so the only thing that was lacking was the stamp - the date stamp. And we were able to confirm to the unions yesterday afternoon that we had been advised the matter would listed for 12 noon on June 18, 2003.
PN15
And we were able to confirm to them that Mr John Hayford, the Project Manager for John Holland, would be expected to give evidence in the proceedings so there would be no surprises or ambush in that regard, sir. The application, sir, deals with a strike that is currently under way by some 80 employees of John Holland on the, what is known as, The PACE Project at Port Hedland. The PACE Project stands for Products and Capacity Expansion Project and involves capital expenditure by BHP Billiton Iron Ore Pty Ltd to expand to the export capacity of their facilities at Port Hedland.
PN16
We would seek, sir, to - between the time the application was filed it became apparent that we had missed off some 15 employees names. We would seek to attend to our revised schedule 1, which in fact picks up the names of, as I said, about another 15 employees who had been unfortunately omitted from the first schedule. I seek to attend to that and vary the application accordingly. Thank you.
PN17
MR COOKE: Thank you Deputy President. The case for the applicant this afternoon, sir, will proceed by way of some brief submissions on my part. A brief look at what we say are the relevant precedent decisions in such matters and then evidence of Mr Hayford, who is indeed the project manager for John Holland Pty ltd, on the Marine Works contract that they are undertaking at Port Hedland. Sir, the dispute - we essentially rely on the grounds that are set out in our application. There are, we submit plainly, certified agreements in place with each of the three unions that apply to the work on the Port Hedland project for John Holland.
PN18
Those agreements are set out in the preamble to the application, but for the sake of the record and in chronological order there is an agreement between John Holland Pty Ltd and the AWU which was AG2003-22 and is found at AG821380. There was then followed by an agreement between John Holland Pty Ltd and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, which was filed as AG2003/47 and is found now as AG821671. And finally in April of this year Commissioner O'Connor certified a third agreement between John Holland Pty Ltd and the Construction, Forestry, Mining and Energy Union, which was filed as AG2003/157 and is now found as AG823737. So, we submit, sir, that - - -
PN19
THE DEPUTY PRESIDENT: Where is - I have another one here Mr Cooke, John Holland Product and Capacity Expansion Marine Works, John Holland and IWAG2003/5. Is that relevant?
PN20
MR COOKE: Well in fact, it was an earlier agreement with the AWU, sir. The first agreement however, I omitted particular classifications and was therefore - a second agreement was made in - as - - -
PN21
THE DEPUTY PRESIDENT: That is 22, AG2003/22.
PN22
MR COOKE: Yes sir.
PN23
THE DEPUTY PRESIDENT: Does that replace AG2003/5, does it?
PN24
MR COOKE: Well it didn't actually - the earlier agreement was not actually replaced. It would operate in conjunction with, but it picks up all classifications as against the partial coverage of the first document, sir.
PN25
THE DEPUTY PRESIDENT: I see, so AG2003/5 is still relevant, is it?
PN26
MR COOKE: It is relevant for particular classifications, sir.
PN27
THE DEPUTY PRESIDENT: Classifications are involved in this?
PN28
MR COOKE: Yes, the classifications missing from the first document were in shorthand, sir, matters to do with such people as concrete finishes and the like. It was basically those involved in concrete finishing and in placing work, steel fixing. So those people would have been covered by the second agreement. All other civil employees would be, as a matter of law, covered by the earlier document. And that is the only extent of the inconsistency between the two documents.
PN29
THE DEPUTY PRESIDENT: I see, okay, so there is really four, that is all I am getting are.
PN30
MR COOKE: Yes, yes indeed, you are correct, sir.
PN31
THE DEPUTY PRESIDENT: Thank you.
PN32
MR COOKE: We say, sir, that the jurisdictional burden upon the applicant in terms of being able to seek an order pursuant to section 127(1) is met. We say that industrial action is occurring and we will prove that through the evidence of Mr Hayford, so I don't propose to take that any further at the moment. We say that the work is plainly in the terms of section 127(1)(c), work that is regulated by an award or a certified agreement and indeed we will confirm that, again through the evidence of Mr Hayford.
PN33
We say, sir, that there has been no attempt by any of the three unions to utilise either the dispute settlement procedures contained within those agreements in terms of pursuing the issue that they say is vexing them on this occasion. There was no formal notification to the employer of the issue that was concerning the unions prior to them calling a note - a meeting. And the Commission will note appended to the application at page 7 of the application is a meeting - a notice of a union meeting that was circulated on afternoon of Monday June 16 amongst the John Holland's workforce. It refers to a combined AMWU, which we take as shorthand for the AFMEPKIU, AWU and CFMEU meeting for all John Holland's workers.
PN34
It describes the venue as being the Wedgefield Camp and it sets a time of being 6 am, the following day. And it is, if one takes the notice on face value, authorised by Mr Davis of the AMWU, Mr Asplin of the AWU and Mr Wade of the CFMEU. So what we say, sir, is the union certainly had opportunity and sufficient time to draw up and circulate a flier that they could send to the John Hollands workforce. But if they wished to - they also had, we would say, sufficient opportunity to notify a grievance to this Commission under the terms of the dispute settlement procedures contained in each of the agreements. Or, if they so desired, they could have referred the matter to the Commission under section 285(g) of the Act, if they had a concern over the operation of right of entry protocols on the PACE Project.
PN35
And indeed, sir, we would note that this is not the first issue of industrial action in relation to right of entry on the PACE Project impacting on John Holland Pty Ltd. In March of this year, and precisely on 14 March 2003, there was a similar application brought before you as it turns out, Deputy President, as application C2003/44, which was again an application to stop or prevent industrial action by John Holland Pty Ltd on the PACE site at Port Hedland. And on that occasion, and I don't propose to quote heavily from it, the unions alleged that there were some issue over the right of entry that they were seeking to deal with. We would particularly refer to paragraph - there was an interchange between yourself, sir, and Mr Kucera, commencing Mr Kucera's submissions in fact and it is, at paragraph 103 - - -
PN36
THE DEPUTY PRESIDENT: What date was that proceedings?
PN37
MR COOKE: 14 March this year, sir.
PN38
MR COOKE: Mr Kucera's submissions commence at paragraph 103 but there was some issues pertaining to a jurisdictional matter that he chose to raise, contending that John Hollands were not party to any Federal Award. But moving past that, at paragraph 131 - sorry paragraph 129, Mr Kucera said in response to a question from yourself, sir, which said:
PN39
No, what I am getting at if an order was issued, would that hinder the resolution of the matters in dispute.
PN40
Mr Kucera said, and I quote:
PN41
Potentially sir, yes, absolutely, the position is that this question of right of entry appears to be, as I said before
PN42
and at paragraph 130 you are quoted, sir, as saying:
PN43
I have read about it in various quarters
PN44
and at paragraph 131, Mr Kucera says:
PN45
Yes, it is a significant issue and it is one we would say, sir, needs to have appropriate protocols put in place so that there are not any further disputes of this kind.
PN46
at paragraph 132, sir, you noted to Mr - or you stated to Mr Kucera, and I quote:
PN47
Yes, well maybe appropriate protocols is to use the vehicles within the act that are available to resolve the issues associated with right of entry, Mr Kucera
PN48
and skipping past that, because there is certain interplay. But at paragraph 141, sir, you in fact pointed out in precise terms that one of the channels - vehicles within the Act that is available to pursue concerns over right of entry was section 285(g) of the Act, and Mr Kucera was part of that interplay as well. So what we say, sir, is that back in March of this year the unions contended that they had some concern over right of entry and we say that on that occasion, that was during a four day dispute - five day dispute, impacting on John Hollands where Mr Wade and Mr McDonald of the CFMEU boarded the buses from the Wedgefield Camp, went to the site, called a meeting and a four day stoppage ensued.
PN49
We say that if the unions had concerns over right of entry they were expressly advised, at that point in time, of a facility within the Act, apart from the dispute settlement procedure mechanism, where their concerns could be addressed. We are now three months and four days down the track and we find that the CFMEU, we perceive, will raise an issue saying that they have not been permitted right of entry or there has been some hamper put on their right of entry to the site and we say that that, sir, is certainly not the case.
PN50
We say the history and the record of visits to the site by the CFMEU particularly, but the other unions as well, discloses that they are not in any sense, hampered in their ability to access the site and pursue right of entry. What is happening, sir, is that the work of John Hollands is being held up. There are some, just over 100 people employed by John Hollands on the project, some 23 or so of those are staff people, approximately 80 are people that are subject to the agreements that we have referred to. The work is obviously not proceeding.
PN51
John Hollands have three barges and significant other heavy construction equipment that they have mobilised to the site to carry out the works they are contracted to do, that equipment is not being used. The costs of having it there are being incurred by John Hollands as we speak. John Hollands have not been advised by any union official, neither Mr Wade nor Mr Davis nor Mr Asplin, of any date of a return to work. The best that Hollands have been advised is that there will be a further meeting of the striking employees at 6 am in the morning.
PN52
Now, if that - that may lead to a return to work but there is certainly no undertaking to that effect, or guarantee that productive work would resume. Indeed, given that the normal starting time - - -
PN53
THE DEPUTY PRESIDENT: 6 am you said, did you?
PN54
MR COOKE: 6 am, yes, sir. But given that the normal starting time of the John Hollands workforce is 6.30 and that normally they are bused from the Wedgefield Camp to the work sites and the buses depart at 6 am in the morning, would seem to imply that normal work is not going to be taking place at 6.30 in the morning at least, even on the very best of interpretations of the meeting tomorrow morning. We say, sir, as we've said, that there are ample opportunities under the agreements and under the Act for the unions to pursue their concerns. We say that the recourse to strike action is completely unnecessary, excessive and counter-productive.
PN55
We will, through the evidence of Mr Hayford, be able to provide a schedule to the Commission showing that between 11 February this year and as recently as 16 June this year, there have been extensive visits to site by all of the unions and, in particular, the - - -
PN56
THE DEPUTY PRESIDENT: Between when, sorry?
PN57
MR COOKE: Between 11 February, sir, which is - John Holland's commenced operations proper in late January this year, through to 16 June, sir, there have been a significant number of visits to site by all union but,
PN58
in particular, one has to note the CFMEU have probably been more diligent than most in that regard. We will also, sir, show a history of lost time that has occurred on the project whereupon the dispute we refer to between 12 March and 15 March, inclusive, where we lost four days production, back in - three months ago. There was a further dispute involving a particular - or a section of the crew, being those involved in the barge work or engaged on the barges in Saturday and Sunday, 3 and 4 May earlier this year, and then a further dispute that commenced yesterday and, as we speak, is continuing.
PN59
It is not the case that, as occurred in March of this year when we appeared before you, sir, Mr Kucera was able to stand before the Commission and say that this was not a site where there had previously been impacted by industrial action. That submission is now dated and factually incorrect. There has now been - in fact Mr Kucera noted, at paragraph 127, and he said, in support of his argument, that there not be an order issue on that occasion and I quote:
PN60
There is not a history of ongoing industrial disputation. It is not, I would say, part of a pattern of intermittent industrial action or anything like that.
PN61
End of quote.
PN62
So we would say, sir, that the position the union put before you back in March is unfortunately not the case today. There is a history of industrial action. There was industrial action in March, there was none in April but there was further industrial action in May and now in June. John Holland have reached agreements in good faith with each of the unions. It is not unremarkable that the company would expect that those agreements would be honoured and that where people have concerns that they pursue those through the proper channels.
PN63
Turning to the next section of our submission, sir, we would refer the Commission to four decisions of the Commission dealing with the issuance of - or the discretion that the Commission has, I guess to put it most correctly, under section 127 of the Act, in terms of whether orders should be made. In particular we refer to the decision of the Full Bench in the matter of Cole v Allied Operations Pty Ltd and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Others (1997) 73 IR, commencing at page 311. We would adopt broadly, sir, the dicta of the Full Bench in that matter.
PN64
We would note that the Commission requires that an applicant in such a matter prove the jurisdictional facts required by section 127(1). We say that that is the case, that industrial action is occurring. That the industrial action is related to work regulated by an agreement and that the application is brought by a person likely to be affected by the industrial action and that is, indeed, John Holland's. We believe that at page 318 of the decision the Full Bench noted that in terms of dealing with a question of whether industrial action was threatened, or further industrial action was threatened, impending or probable, the Full Bench noted that a history of resort to industrial action and evidence about the current state of industrial relations was also relevant.
PN65
We would further refer the Commission to the decision of Vice President Ross in the matter of Patrick Stevedores No 1 Ltd v Another and the Maritime Union of Australia v Others (1998) 79 IR, commencing at page 239. Again, without going to the decision in - - -
PN66
THE DEPUTY PRESIDENT: What is that reference again, sorry?
PN67
MR COOKE: Volume 79 of the Industrial Reports, sir. The report itself commences at page 239 of that volume.
PN68
THE DEPUTY PRESIDENT: Who are the parties?
PN69
MR COOKE: Patrick Stevedores No 1 Ltd v Another, which was Patrick Stevedores No 2 Pty Ltd and the Maritime Union of Australia v Others. In that decision, sir, Vice President Ross, at page 246, referred to the exercise at the discretion of the Commission in such matters. He referred to the decision of the Full Bench in the Coal v Allied matter and I won't go back - revisit that. But he then set out some tests that he believed were relevant to consider in whether or not considering whether industrial action, to be made subject to a section 127 order, is illegitimate such that it warrants an order rendering it unlawful being made and in that the fact the Commission sought to have advice that it would have regard to the following factors.
PN70
One, was the conduct of the parties, both prior to and during the industrial action. Two, was compliance with dispute settlement procedures and in that regard he expressly referred to section 92 of the Act. Three, was the extent to which the parties were bound by certified agreements under Division 4 part VIB of the Act and in particular the relevant import of section 170MN of the Act, which noted that industrial action should not be taken until after the nominal expiry date of certain awards and agreements and that claims industrial action should not be taken against employers in respect of the employment of employees whose employment is subject to the agreement or award.
PN71
Now, the agreements in question, sir, or first of all we would say that the employer has done little to provoke the disputation. We would say the unions have basically set about a course to provoke and to organise the disputation. In terms of compliance with the dispute settlement procedures, well, we say that plainly, the unions may say they have a grievance. They have certainly not taken up any channel to bring those grievances to this Commission and, allegedly, they identified their concerns over right of entry three months ago. And, thirdly, certified agreements and the fact that the agreements are within term and the agreements, importantly, sir, all have provisions dealing with right of entry.
PN72
At clause 7.1 of each of the agreements there is a provision that deals with right of entry, picks up the provisions of Part IX, Division 11(a) of the Workplace Relations Act, requires at least 24 hours notice in writing of the intended visit. Requires that all security, safety rules and directions applicable to the site be followed. Requires that people entering to hold meetings under section 285(c) shall hold such meetings during meal or other breaks and provides that when investigating a suspected breach of the Workplace Relations Act 1996 or this agreement, may interview employees who are union members or eligible for membership about the suspected breach during working hours. So we say, sir, that what the unions - and we say the evidence Mr Hayford will show, that what the unions are seeking to do on this occasion has been to expand their right of entry under the certified agreement and, we would say, in contravention of the strictures of section 170MN.
PN73
The fourth decision that we would refer to the Commission to is again a decision of a Full Bench found at print - - -
PN74
THE DEPUTY PRESIDENT: Sorry, what was the third one?
PN75
MR COOKE: Matter of CBI Constructors Ltd - well, actually, sorry, it was an appeal by the CFMEU and the AFMEPKIU in relation to the issuance of a section 127 on the Worsley expansion site. They were orders against - appeals against orders of Commissioner Merriman and the decision of the Full Bench, I don't have the - is found at 87 IR, at page 82. It is also found at print R1748.
PN76
THE DEPUTY PRESIDENT: Thank you. Sorry, the fourth one?
PN77
MR COOKE: The fourth one, sir, is a further appeal decision in the matter of the Construction, Forestry, Mining, Energy Union v Another and United Construction Pty Ltd v Others, a decision of the Full Bench handed down on 6 August 1999, found at 91 IR, commencing at page 394. What would we note from the third decision sir, is that in terms of jurisdiction the Full Bench noted, and this is dealing with the Roneo decision from the print and quote:
PN78
We observe in passing that a pattern of intermittent, but continual industrial action could be sufficient to enable the view to be formed that industrial action was threatening, impending or probable, even though there had been no action taking place at the particular time the order was to be operable.
PN79
and then they go on to say that that was no the case here and they really just find that in passing. The fourth decision sir, again at page 397 of the Industrial Reports in the final full paragraph of the decision on that page states, and I quote:
PN80
In the course of the appeal proceeding submissions were made regarding whether section 127 of the Act empowers the Commission ...(reads)... In any event such orders would need to be supported by appropriate findings regarding the likelihood of industrial action.
PN81
And in this view they noted and adopted the submissions of the Full Bench in the CBI Constructors Appeal matter sir, so I wont refer to that quote in particular. The extract goes on then to page 398 and in the first full paragraph, paragraph 16 of that page the Full Bench went on to note:
PN82
We also note the history of industrial problems at the site. This was a matter raised by the various companies in the applications which were before the Commission ...(reads)... that threatened industrial action, the letter of 24 May, will manifest itself into actual industrial action.
PN83
So, what we say sir, is that in terms of the order that is sought, we say the Commission should, could and should, take account of the previous history of industrial disputation on this site, impacting on this employer and indeed dealing with, in part, the issue that we believe the unions will raise as being the cause of the disputation on this occasion. We say sir, that the issuance of an order pursuant to section 127 of the Act is not a matter that the Commission would plainly take lightly.
PN84
However, there is a course of conduct that has been occurring, this is quite reckless and illegitimate industrial action from the perspective of the employer and we are left without any recourse in terms of to get the project back on - or to get the John Holland part of the project back in operation. To have an order that would hopefully temper the behaviour of the unions and their officials and their members henceforth. With that sir, we conclude our submissions and would now seek to call evidence from Mr John Hayford.
PN85
THE DEPUTY PRESIDENT: Perhaps before you do Mr Cooke, there are a couple of things I just want to explore with you. You may have outlined this in the previous proceedings, but the numbers of employees covered by each of the agreements, do you have any information of that?
PN86
MR COOKE: Not off hand sir, we could develop some information. The CFMEU Agreement covers crane operators and carpenters. And if one looks down schedule exhibit A1 - - -
PN87
THE DEPUTY PRESIDENT: Yes.
PN88
MR COOKE: There would be by my counting briefly sir, about 14 people that fall into those two classifications. The majority of the riggers, the dogmen, the metal tradesmen such as the boilermakers and the trades assistance, the storeman, would all fall - mechanical fitter - would all fall - welders, would all fall under the Metal Trades Award and I haven't been able to do a quick calculation in relation to that. But that would be the majority of the work force, there is no question - the single biggest group would be that. And then the balance being concrete finishers, steel fixers and the like, would be people that would fall within the scope of the AW documents sir.
PN89
THE DEPUTY PRESIDENT: You mentioned that none of the unions employees have initiated anything under the dispute resolution clause. Has John Hollands?
PN90
MR COOKE: No sir, not between - no, no they haven't. John Hollands are of the view that right of entry was being managed on the project. The issue came up on Monday, but between Monday afternoon and Tuesday morning we didn't institute any proceedings.
PN91
THE DEPUTY PRESIDENT: Yes, thank you. The life of the project is what - anticipated?
PN92
MR COOKE: The overall project is due to be completed in January/February of next year. John Hollands proportion of that project is due to be completed 6 December, this year sir.
PN93
THE DEPUTY PRESIDENT: The term of the order sought, you are seeking 12 months, do you want to comment on the term of the order you are seeking?
PN94
MR COOKE: Plain sir, we would only seek an order to - whilst John Holland anticipate - or reasonably anticipate having employees on the site, but that would perhaps best be at least until the end of this year, given the - - -
PN95
THE DEPUTY PRESIDENT: So are you saying for the duration of the project.
PN96
MR COOKE: The duration of the project.
PN97
THE DEPUTY PRESIDENT: With respect to John Hollands participation.
PN98
MR COOKE: And the fact that they are due to be complete on 6 December, they have now lost almost a week due to industrial action and that obviously has an adverse impact on their ability to meet their contracted schedule.
PN99
THE DEPUTY PRESIDENT: Yes, yes. The May industrial action, I think you mentioned the barges was it?
PN100
MR COOKE: Yes sir.
PN101
THE DEPUTY PRESIDENT: Can you expand on that a bit, just how many, what type of employee?
PN102
MR COOKE: Well, there was an issue sir, between the parties as to the application - the Commission will note if you have a copy - does the Commission have a copy of the agreement for you?
PN103
THE DEPUTY PRESIDENT: Yes, yes.
PN104
MR COOKE: On any of the agreements there is an appendix 1: Marine Works - sorry appendix 2 in the AWU Agreement: Inshore Marine Works.
PN105
THE DEPUTY PRESIDENT: Yes.
PN106
MR COOKE: And the Commission will note if one goes to paragraph 2:
PN107
Barge - piling disability allowance.
PN108
THE DEPUTY PRESIDENT: Yes.
PN109
MR COOKE: The allowance is expressed as a flat allowance of $95 per week and then it explains what disabilities that is in compensation for. And then in paragraph B it says:
PN110
For purposes of pro-rata entitlement, where a full week is not worked the allowances shall be calculated at the rate of $19 per day.
PN111
What is indeed happening there sir, is that the John Hollands work 7 days in one week and then Monday to Saturday, 6 days in the following week. The employees on the barges sought to be paid $19 on each day they work, not simply $95 in each week. That was subject to some discussion between the parties. John Hollands notified the matter to the Commission and it proceeded to the Commission as C2003/83. It was a section 99 dispute, notified by John Holland and two others regarding the - there were two issues in dispute. One was a cyclone procedure, the other was the barge allowance.
PN112
It proceeded before - conference before Commission O'Connor on 23 May - 23 April this year. Arising out of that the Commission directed that perhaps there be further discussions and indeed there were. There was then a proceeding before - a further conference before Commission O'Connor, on 2 May. And there was in fact a video conference between participants down here and the various project management and organisers in Port Hedland, that - same conference application on 2nd of the 5th '03. There was a tentative agreement reached that the barge allowance requirement - or provision would be varied, to stipulate that it would be $19 per day. And there were some other conditions attached to that. But that was the nub of the agreement.
PN113
The Commission advised that we would need to put in applications pursuant to section 170MD(6) to formally vary the agreement and he indicated that there be further proceedings in that regard. Given the outcome of those proceedings sir, and that was about 1 o'clock the conference concluded on that day. John Holland agreed with Mr Wade and Mr Davis that they could - although they had not given notice, they could proceed out to the barges that afternoon and advised the employees engaged on the barges of the outcome of the Commission proceedings.
PN114
So, notwithstanding the strict requirement for 24 hours, Hollands were prepared to waive it and in the spirit of conciliatory - being conciliatory towards the unions, have the unions brief their members on the outcome of the Commission proceedings. What then happened sir, is that Mr Wade and Mr Davis and Mr Asplin, I'm advised, called a meeting of those same employees at 5.30 the following morning, Saturday 3 May and strike action ensued. And it was again the barge crews that we had permitted the unions access too the day before.
PN115
Suffice to say we didn't actually see that as being in the spirit of conciliation or good industrial relations. And neither have we ever been given any proper advice or discussion as to why the Hollands barges, which were due to work both the Saturday the 3rd and Sunday the 4th were idled on that occasion.
PN116
THE DEPUTY PRESIDENT: Yes, well my question really was not so much about the issues, but what was the scope of that dispute?
PN117
MR COOKE: The scope was just withdrawal of labour by the 15 to 16 people engaged on the - I think it's 16 sir, engaged on the barges.
PN118
THE DEPUTY PRESIDENT: So, it wasn't the whole site.
PN119
MR COOKE: No, no, it was - - -
PN120
THE DEPUTY PRESIDENT: So it is 15 or 16. Are they covered by these agreements?
PN121
MR COOKE: Yes it sir, in fact there were 16 people.
PN122
THE DEPUTY PRESIDENT: Yes, which one are they covered by?
PN123
MR COOKE: The CFMEU Agreement - all three sir. The CFMEU Agreement and the Metal Workers' Agreement predominantly. But there are two AW employers who also do work on the barges periodically - two steel fixers.
PN124
THE DEPUTY PRESIDENT: Okay, thank you. I just want to get my head around this. The agreement provisions - I think you said the right of entry provisions in there are all identical in all of the agreements, is that right?
PN125
MR COOKE: Yes sir.
PN126
THE DEPUTY PRESIDENT: Do they vary the provisions of the Act in any respect, or are they re-statement of the provisions of the Act.
PN127
MR COOKE: They are certainly a re-statement sir, - well - sorry. First of all, in our belief, they adopt the provisions of the Act because it does - in the first paragraph it stipulates:
PN128
Right of entry shall be exercised in accordance with the part 9, division 11(a) of the Act.
PN129
And then in the next paragraph it points out:
PN130
That subject to the provisions that the following applies.
PN131
So, we say that they compliment and build on the provisions of the Act.
PN132
THE DEPUTY PRESIDENT: So they are more specificity, they don't alter the provisions of the Act, is that what you are saying?
PN133
MR COOKE: No, certainly sir, we wouldn't say they could lead the Act to be read down.
PN134
THE DEPUTY PRESIDENT: So what are you saying, they are provisions that identify how the Act is to apply?
PN135
MR COOKE: Yes, and they go further. If I can say, sir, it is a (iii) something that is not in the Act in terms of compliance with security and safety requirements, for argument's sake.
PN136
THE DEPUTY PRESIDENT: Yes, okay, thank you. And the dispute resolution clauses are the same?
PN137
MR COOKE: Yes sir.
PN138
THE DEPUTY PRESIDENT: Okay. Now, the purpose of the action. Whilst you have mentioned it is related to right of entry, I'm still a little unclear as to what you are saying that the purpose of the industrial action is?
PN139
MR COOKE: I guess we could reasonably submit sir, we are somewhat in the same boat. We don't - what has been advised to us is that in affect the CFMEU in particular - and they have managed to, from our perspective sir, draw along with them the other two organises, effectively seeking un-vetted right of entry to the site. That they have the right to visit the site and talk to whom they want, when they want. It appears to be at least the sub text of the action.
PN140
THE DEPUTY PRESIDENT: Okay. So, what are you saying, that the purpose of the action appears to be vary the operation of the site visitation clauses, is that what you are saying?
PN141
MR COOKE: Certainly sir.
PN142
MR EDMONDS: Sir, I wonder if perhaps it would be more useful for perhaps myself or for one of the respondents to jump in at that point sir.
PN143
THE DEPUTY PRESIDENT: Well, no it wont.
PN144
MR EDMONDS: Certainly sir.
PN145
THE DEPUTY PRESIDENT: It is Mr Cooke's application. I'm trying to get an appreciation of what his understanding of the purpose of the action is. You can correct that if that is a wrong understanding and you will be given that opportunity.
PN146
MR EDMONDS: Certainly sir.
PN147
THE DEPUTY PRESIDENT: Mr Cooke.
PN148
MR COOKE: Certainly sir, that is the way we perceive it to be, that the CFMEU in particular seem to hold this view that they should be allowed to go and hold meetings with whoever they wish, whenever they wish. And in particular the CFMEUs Agreement. If the Commission has it there before you. In its classification - or the classifications covered, crane operators, carpenters and painters. And it appears to be a matter of grievance to Mr Wade that he can't speak to metal worker classifications, particularly riggers - or anyone covered by the metal workers I guess.
PN149
And that appears - is certainly the uptake on it sir. And that in fact is consistent with the submissions of Mr Kucera on 14 March, where at paragraph 137, where he was referring to correspondence from John Hollands that had authorised their request for a meeting during a meal break for relevant employees scheduled for 1 pm - 1.30 pm. And that is set out at paragraph 136 of that transcript. Paragraph - and Mr Kucera was quoting at that point. At paragraph 137, Mr Kucera went on with it and I quote:
PN150
The difficulty that the CFMEU have with this particular -
PN151
and on the face of it it seems like a reasonably innocuous letter. In reality sir, what is actually taking place is that the CFMEU is being told which employees it can and can't meet with on the project. In the usual course of events, when a CFMEU organiser enters a construction site he goes and holds meetings with employees in the amenities facilities on that - that - amenities facilities that on site - that doesn't read grammatically correctly, but that is how it is. Continuing the quote sir:
PN152
Presently the CFMEU is not being allowed to go and access those amenities ...(reads)... but it is not entitled to meet with and represent.
PN153
And continuing further paragraph 138:
PN154
We would submit sir, that that actually imposes an unreasonable restraint on the CFMEU in its exercise of its rights under the Act, and that is one of the problems that we have.
PN155
We say sir, that it really appears to be much of the same issue that Mr Kucera complained of back in March of this year. But Mr Wade seems to have it in his mind that under - notwithstanding the classifications covered by his agreement - or the union to which - the agreement to which his union is a party. That he should have some greater right to go beyond meeting with crane drivers, carpenters - and carpenters and have some right to meet with other classifications that are not covered by his agreement. And that from our perspective sir, certainly appears to be where the issue has arisen from on this occasion.
PN156
THE DEPUTY PRESIDENT: Thank you. Now, with respect to the - this issue was alive in March. The agreement with the CFMEU was certified in April if I'm correct - - -
PN157
MR COOKE: 29 April I believe sir, yes.
PN158
THE DEPUTY PRESIDENT: Did this issue get canvassed prior to that or during that certification?
PN159
MR COOKE: No, not to the best of my knowledge sir. I think for the sake of the record I think - I just need to check.
PN160
THE DEPUTY PRESIDENT: Well, to your recollection anyway.
PN161
MR COOKE: I'm just checking, it is quite likely sir, but I have no - quite likely that I didn't deal with the matter personally so for the sake of accuracy.
PN162
THE DEPUTY PRESIDENT: Yes.
PN163
MR COOKE: No, indeed I didn't. So, I wouldn't of - - -
PN164
THE DEPUTY PRESIDENT: Yes. The other issue - and last question I have I think Mr Cooke is - well two more questions. What if any attempts have there been to resolve this issue between the parties themselves?
PN165
MR COOKE: When - and it would be the evidence of Mr Hayford that when he received the notifications from Mr Wade and Mr Asplin on Friday of last week, he in fact contacted both gentleman individually and sought to engage in discussions with them in terms of whether - what their grievances - what their issue was and how it could be addressed. It became difficult with Mr Davis, because his notification wasn't actually sent through until 10.58 on Sunday morning and that wasn't a normal working day.
PN166
MR..........Well, it was a working day, I didn't - - -
PN167
THE DEPUTY PRESIDENT: Mr Cooke, if you want to get instructions you can have an adjournment, but I'm not going to have people at the back of the room start talking out loud. So, if you want to get instructions on that and get clarified you can. I'll break for you to get that. Sorry, can you continue?
PN168
MR COOKE: Yes certainly sir. On Saturday morning, being 14 June, it will be our evidence that Mr Hayford attempted to discuss the matter with both Mr Wade and Asplin in order to see if an accommodation couldn't be reached. However, those discussions didn't - Mr Hayford instigated those discussions by telephone with each gentleman, but they didn't lead to an agreement or a conclusion. In relation to Mr Davis, there was relatively late notice of his intention to visit site on the Monday.
PN169
THE DEPUTY PRESIDENT: Well, it is now Wednesday, have there been any - other than those attempts - has there been any discussions or attempts at settlement?
PN170
MR COOKE: There was a meeting I'm advised sir, at approximately - and again this will be the evidence of Mr Hayford, but at approximately 10.10 or 10.15 yesterday morning Mr Hayford and Mr Sproule of CCI met with Mr Wade, Mr Asplin and Mr Davis. Mr Davis advised that the employees had withdrawn their labour until at least tomorrow morning, because the work force were allegedly unhappy with the way the union request for right of entry was handled on Monday of this week. And that the work force was allegedly unhappy with the way Mr Hayford managed the issue.
PN171
Mr Sproule asked that there be an orderly return to work on Thursday morning. Mr Wade advised there would be a report back meeting on Thursday morning where the work force would decide. Mr Sproule asked the unions to clarify what the issue was. Mr Asplin stated that he wanted the unions - the unions wanted John Holland to acknowledge the unions right of entry. Mr Sproule advised right of entry was acknowledged and was managed in accordance with the Act and the agreement. Mr Wade stated - alleged that there had been occasions on site in the past where unions had met with the work force together. Mr Wade refused to - - -
PN172
THE DEPUTY PRESIDENT: I don't want to go through all the detail of discussion, but there were discussions yesterday is what you are saying?
PN173
MR COOKE: Yes,yes.
PN174
THE DEPUTY PRESIDENT: And attempts at settlement?
PN175
MR COOKE: Yes.
PN176
THE DEPUTY PRESIDENT: Do you have any submissions on whether an order, should it issue, would aid or hinder any resolution of the underlying issues?
PN177
MR COOKE: We believe an order would greatly assist the resolution of this and other issues sir, in that it would perhaps concentrate the minds of the relevant officials on alternate methods of dispute resolution beyond the strike weapon. The officials concerned really do appear to have a strike now talk later approach to life. And I think if they were given some reminder that that is not the normal course of business, it would be of assistance to all parties sir.
PN178
THE DEPUTY PRESIDENT: Okay, thank you. Before you call your evidence Mr Cooke. Who is going to take the primary running of this from the other parties?
PN179
MR KUCERA: Sir, I wouldn't exactly say that I'm going to do the primary running of it - - -
PN180
THE DEPUTY PRESIDENT: You are prepared to go first?
PN181
MR KUCERA: Just that we are prepared to go first because it was seemingly the case that our name was mentioned the most in Mr Cooke's submissions.
PN182
THE DEPUTY PRESIDENT: Well, Mr Kucera, there is really just a few questions I want to ask you, unless you particularly want to make any submissions?
PN183
MR KUCERA: Yes, please sir.
PN184
THE DEPUTY PRESIDENT: Just to try and confine the evidence of issues that are challenged and not challenged. Is it disputed that there is industrial action occurring at the moment?
PN185
MR KUCERA: No sir.
PN186
THE DEPUTY PRESIDENT: Is it disputed that further industrial action is probable?
PN187
MR KUCERA: I don't know about probable sir, because there is a report back meeting tomorrow morning at 6 am. I can't even say possible without instructions sir.
PN188
THE DEPUTY PRESIDENT: Yes, but industrial action is occurring at the moment?
PN189
MR KUCERA: At the present time and there will be a report back meeting at 6 am tomorrow morning.
PN190
THE DEPUTY PRESIDENT: Are you disputing that the work is regulated by the certified agreement?
PN191
MR KUCERA: No sir.
PN192
THE DEPUTY PRESIDENT: The other issues, some of those I raised with Mr Cooke, relating to the purpose of the action, attempts at settlement, compliance with dispute resolution procedures, aiding or hindering resolution should an order issue and the nature of an order. Do you want any comment to make about that now, of those sort of things?
PN193
MR KUCERA: Well firstly - and I will try and make my comments brief sir. In relation to the order sought, it is our submission that the order sought is far too broad and its term is simply unrealistic. The issue is confined to rights of entry. There was, following the dispute in March - and the dispute in March needs to be looked at in the context of what had happened at that time. There wasn't a certified agreement in place in respect of the CFMEU. And in our respectful submission, any action at that time was confined to the pursuit of a certified agreement between ourselves and John Holland.
PN194
Right of entry was one of the issues, certainly it seemed to be a major one at that time. That is probably why it has been brought up in submissions this morning. But certainly at that time, that action needs to be viewed in the context of an agreement that at that stage hadn't been reached between the parties - - -
PN195
THE DEPUTY PRESIDENT: Was there a bargaining period?
PN196
MR KUCERA: I'm not sure that there was a bargaining period. There may have been, I seem to recall there was a bargaining period initiated, but I would have to go back and check that sir, I can't confirm that.
PN197
THE DEPUTY PRESIDENT: Can you endeavour to find that out and inform my associate?
PN198
MR KUCERA: Yes, yes I can do that sir. But then an agreement was subsequently certified on 29 April. The industrial action that took place in relation to the barge allowance in May was confined to those employers who were employed on the barge, so in a sense it was confined to a discrete group of employees. It wasn't across the site. And in relation to the comments that were made about the - I think it was the third authority that was referred to - I've actually got a copy of it. The CFMEU - or Construction, Forestry, Mining and Energy Union and United Construction Pty Ltd - again it is - I think page 397 was referred to where the section 127 order that was made by Commissioner Merriman was set aside.
PN199
In that particular case I think it - I'm possibly repeating something that Mr Cooke has already said. But in our view the orders made by the Commissioner are too wide in that they exceed the range of industrial action, which was found to be threatened and probable. Having regard to the findings made by the Commissioner, the orders should have been confined to the particular industrial action about which the jurisdictional findings were made. It then goes on further down the page, after the words "Worsley expansion site" and says:
PN200
In any event such orders would need to be supported by appropriate findings regarding the likelihood of industrial action ...(reads)... the evidence overall is not sufficient to enable the requisite view to be formed.
PN201
We would say that that is on - - -
PN202
THE DEPUTY PRESIDENT: That was in relation to probable action wasn't it?
PN203
MR KUCERA: Well, yes it was. The order that was sought was a broad reaching section 127 order to apply to all forms of industrial action or unprotected industrial action that was occurring, or that may be occurring on the project at that time.What we would simply say, sir, is that the instances of industrial action, once you look at them in their proper context do not actually give rise to a finding that there is this ongoing intermittent pattern of industrial action. The barge disputation was confined to the barge. The earlier action in March was about an agreement, which at that stage had not been reached between the CFMEU and the company.
PN204
In relation to this matter, and coming now to the point about the disputes procedure, we would submit that attempts were made by the CFMEU and the other unions, and my friends can comment on that if they like, but in our respectful submission, attempts were made to raise the issue under the disputes procedure. The relevant disputes procedure in the agreement states that either - I have just got to go to it; settlement of issues and it is subclause 5.1 and it says:
PN205
(e) while the steps in (a) to (d) are being followed, normal work will continue. Sensible time limits shall be allowed for all stages of the discussions to be finalised. If the grievance is still unresolved the matter may be referred to the AIRC provided every effort has been made in the first instance to resolve the grievance through the steps.
PN206
What we say has happened, is that there were steps by the unions to have the issue sorted out. There was when the agreement was certified, a protocol, in informal protocol that was reached with a Steve Bianchini. He has now, as I understand it, has left the project and Mr Hayford has replaced Mr Bianchini. I have a file, sir, with numerous right of entry notices that were given by the CFMEU to enter the site and in effect, what we would submit they are evidence of is, evidence of this informal agreement that had been reached for Mr Wade to have, I suppose, a fairly broad ability to go onto the project.
PN207
What had been happening was that Mr Wade had been doing that with officials from the other unions and obviously if the unions exercised their rights of entry together, this view of Mr Wade going onto the job and interviewing and signing up people who he does not have the capacity to sign up falls away because he has obviously got the other union officials with him while he is seeing his own. The issue is raised, the company took a firm view that it was going to adopt a view on the Workplace Relations Act which was, we would say, very narrow. They departed from what we say was an existing informal protocol that had been reached. It had been working to day. There was evidence of it being adhered to by the parties. The company adopted its view, work continued whilst those discussions took place and then when the company has formed its view, I am instructed the officials then held a meeting with their employees. But it was after hours and it was after the steps had been taken to resolve this matter. The step to refer the matter to the - - -
PN208
THE DEPUTY PRESIDENT: So are you going to be saying that there was a meeting held in accordance with this notice that has been submitted, when was that? Oh, that was yesterday, 6.00 am yesterday, was it?
PN209
MR KUCERA: I think so, yes.
PN210
THE DEPUTY PRESIDENT: That was held?
PN211
MR KUCERA: Yes, but that was after the issues had been raised with the company and attempts had been made to - because there was actually a notice that had been sent to the company on 13 June, which evidence is Mr Wade's intention to visit the site. Sir, the company's attitude to right of entry was, is that it would bring the employees to the CFMEU official. Geographically that actually presents significant problems. It is easier for all parties if Mr Wade just go to the areas of the site where his members are employed.
PN212
THE DEPUTY PRESIDENT: But if there is a difficulty there and you are having difficulty having access allowed and how the provisions of the Act and presumably the agreement are applied, as Mr Cooke points out, other provisions of the Act to remedy that are available to you.
PN213
MR KUCERA: Yes, that is one way it could certainly be resolved, sir, could come to this Commission.
PN214
THE DEPUTY PRESIDENT: Yes.
PN215
MR KUCERA: I don't back away from that.
PN216
THE DEPUTY PRESIDENT: Yes. Do you have any comments at this stage with respect to if an order issued, the effect that would have on resolution of the underlying issue?
PN217
MR KUCERA: The order that is sought, sir, is a broad order and it is a serious step to issue a section 127 order.
PN218
THE DEPUTY PRESIDENT: I understand that.
PN219
MR KUCERA: And we would obviously say, sir, that it would not assist the resolution of this dispute. This is something that requires a commonsense outcome and - - -
PN220
THE DEPUTY PRESIDENT: Are you saying there was a commonsense outcome and there isn't anymore?
PN221
MR KUCERA: Well there was previously before this dispute arose, exactly.
PN222
THE DEPUTY PRESIDENT: Yes.
PN223
MR KUCERA: And it appears that since the recent change in site management up there this dispute has come about.
PN224
THE DEPUTY PRESIDENT: When was that, roughly?
PN225
MR KUCERA: I don't know the exact date.
PN226
THE DEPUTY PRESIDENT: Well Mr Cooke can inform me through his evidence presumably. Is there anything further you want to add particularly at the moment, Mr Kucera?
PN227
MR KUCERA: Oh, look sir, we are not adverse to seeing if the matter can be resolved through conciliation or the like and we are also, if we are able to resolve some agreement on how right of entry could be resolved, we are happy to tell our officials to recommend a return to work. But obviously it is contingent upon what we are able to reach agreement on in relation to right of entry.
PN228
THE DEPUTY PRESIDENT: Have you had any discussions with the employer today?
PN229
MR KUCERA: We tried to before the matter started, sir, definitely, but regrettably we did not get anywhere.
PN230
THE DEPUTY PRESIDENT: Are you willing to have those discussions with the employer still?
PN231
MR KUCERA: Sorry?
PN232
THE DEPUTY PRESIDENT: Are you willing to have those discussions with the employer still, today?
PN233
MR KUCERA: Definitely, sir, yes.
PN234
THE DEPUTY PRESIDENT: Would that serve any useful purpose?
PN235
MR KUCERA: We would think so, sir, yes.
PN236
THE DEPUTY PRESIDENT: Do you have any view on that, Mr Cooke?
PN237
MR COOKE: No. We do have a view on that, sir. Our view on it is that when there is a full return to work, then all issues can be properly addressed. The company is tired of the easy recourse to industrial action that the unions have adopted at Port Hedland and the best the unions were able to present to us in terms of a discussion was that potentially people may recommend a return to work in the morning. That is entirely unsatisfactory that someone may recommend something, tongue-in-cheek, or in some manner 1600 kilometres away is just not sufficient. We would rather press for our application to be heard and determined.
PN238
THE DEPUTY PRESIDENT: Okay, well it is entirely up to you. Under the circumstances, what I intend to do is, I am going to adjourn until 2.00 pm. I would direct that the parties have discussions between now and then to see whether there is any potential for resolution. Should there be no resolution, then Mr Cooke, you can proceed with presenting your evidence. Mr Edmonds, you particularly wanted to make comment earlier about the purpose of the action, I think, if I recall?
PN239
MR EDMONDS: Yes, and no, sir. I think that has been adequately canvassed by the respondents to this point, sir.
PN240
THE DEPUTY PRESIDENT: It has been covered?
PN241
MR EDMONDS: Yes, sir.
PN242
THE DEPUTY PRESIDENT: Okay. Is there anything you want to add, Mr Daly?
PN243
MR DALY: Not at this stage, Deputy President. I have, to be perfectly frank, two interpretations of what has occurred and perhaps some further discussion with the company might help me to ascertain more accurately what did or did not occur.
PN244
THE DEPUTY PRESIDENT: Probably get a third. Okay, well I will adjourn until 2.00 pm.
SHORT ADJOURNMENT [1.27pm]
RESUMED [2.20pm]
PN245
THE DEPUTY PRESIDENT: Yes, the resumption was delayed, partly or solely, because I understood that there were discussions continuing. Has there been any progress from those, anyone want to report or do you want to call your witness, Mr Cooke?
PN246
MR COOKE: There have been discussions, sir. I don't believe there has been an outcome. From our perspective, we would seek to pursue our application.
PN247
THE DEPUTY PRESIDENT: Well, if you can proceed?
PN248
MR COOKE: We seek to call John Ralph Hayford.
PN249
MR EDMONDS: Sorry, sir?
PN250
THE DEPUTY PRESIDENT: Mr Edmonds?
PN251
MR EDMONDS: Yes, sir, I wonder if it is useful, sir, to perhaps ask the Commission to perhaps participate in some sort of conciliation discussions if you think it might be useful, sir?
PN252
THE DEPUTY PRESIDENT: What do you say about that, Mr Cooke?
PN253
MR COOKE: We would seek to pursue our application, sir. We think we have conciliated the matter sufficiently.
PN254
THE DEPUTY PRESIDENT: Yes. Well, Mr Edmonds, matters of this nature, they are serious matters and they are open to - not open to, in my view, they are required to be proceeded with if the applicant particularly wants to proceed with them. So, in doing so, they obviously take their chances. So, I note your request, if I consider at any stage that conciliation might be appropriate, or if at any stage you want to further, or anyone else, further make that request, please do so but at the moment, Mr Cooke, if you can proceed with your case?
PN255
MR COOKE: Certainly, sir, we seek to call Mr Hayford.
PN256
PN257
MR COOKE: Mr Hayford, could you state for the record you full name and current address in Port Hedland, please?---My full name is John Ralph Hayford. My address is, unit D6, Wedgefield Village.
PN258
In Port Hedland?---In Port Hedland, yes.
PN259
And your occupation, please, Mr Hayford?---I am a - I am the project manager for John Holland, I'm a civil engineer.
PN260
And what work are John Holland carrying out in Port Hedland currently?---John Holland have a contract to construct a new wharf, access jetty, transfer tower, two conveyors associated with that transfer tower, and some minor civil works.
PN261
And this is part of the BHP Billiton Pace Project?---It is.
PN262
And what is the overall objective of that project as you understand it?---It is to expand the capacity of BHP to export iron ore product somewhere of the order of 70-million tonne to 85.
PN263
How many people are currently employed by John Holland on this Pace Project work?---103.
PN264
And of those, how many people are covered, well for want of a description, craft employees?---Craft employees would be around 80 plus or minus one.
PN265
And the balance are staff?---The balance are staff.
PN266
Yes. And do you have any formal qualifications yourself, Mr Hayford?---I have a Bachelor Degree in Engineering.
**** JOHN RALPH HAYFORD XN MR COOKE
PN267
And how long have you been a professional engineer?---35 years.
PN268
And how long have you been involved in the construction industry?---32 years in various roles with a contractor.
PN269
Now, John Holland have certified agreements applying on the work that you are undertaking at the Project?---Yes, we have three agreements, one with each of the unions.
PN270
That being the AWU, CFMEU and Metal Workers Union?---Correct.
PN271
And to the best of your knowledge, are those agreements current within their term?---Yes, they are. The term extends until 29 February 2004.
PN272
And do the agreements contain disputes settlement procedures?---They do.
PN273
And by your recollection, do the agreements have procedures dealing with right of entry?---Yes, they do.
PN274
If the witness could be shown a document, please?
PN275
If you could have a look at that document, please, Mr Hayford, is that a document you received on Friday of last week?---It was received by the site on Friday of last week. I was actually in Perth on that day. I returned to site at 9.30 on the Saturday to the site office and I saw it then.
PN276
**** JOHN RALPH HAYFORD XN MR COOKE
PN277
MR COOKE: When you returned to site on the Saturday, Mr Hayford, and you saw the exhibit A2, what steps did you take then?---I rang Bob Wade around 10 o'clock. I asked Bob what the notice was about and did he want us to facilitate a meeting of his members and he said, "No, I do not want a meeting of my members. The purpose of this notice is to test the right of entry to the site and with other unions as I told you we would be testing that right of entry on Wednesday of last week."
PN278
Now, on Wednesday of last week being, June 11?---That's correct.
PN279
Mr Wade had visited the site?---Yes, he did.
PN280
And what had occurred on that occasion?---We facilitated a meeting in the pre-cast yard at 1 o'clock with his members.
PN281
Now, Mr Wade indicated there would be other unions involved in this action when you spoke to him on Saturday morning?---He did. He advised me that I could expect, or - or I should already have, two other similar notices. I said I hadn't received them but in fact the notice from the Metal Workers arrived, I think, as - as I finished the conversation, the telephone conversation with Mr Wade.
PN282
Did Mr Wade give you any detail or did you seek from Mr Wade any detail regarding these alleged breaches that were referred to?---I did. I - I asked him to give me details of the alleged breach that he refers to and - and he said, "I don't have to divulge that." I asked him also who - who he would like to interview so that we could facilitate that. And he said, "I don't need to tell you the names of those people either." He said, "John, I'm coming to site, you know why I'm coming to site. We are going to test the right of entry provisions and we will be doing so with the other unions as agreed."
PN283
Now, later that morning did you receive a notice from Mr Asplin of the AWU?---I received that notice around 10 o'clock.
**** JOHN RALPH HAYFORD XN MR COOKE
PN284
If the witness could be shown a further document, please?
PN285
Is that a copy of the notice you received from Mr Asplin on Saturday morning at approximately 10.00 am, Mr Hayford?---It is.
PN286
PN287
MR COOKE: Now, upon receipt of the notice from Mr Asplin, what steps did you then take, Mr Hayford?---I rang Paul Asplin at - about 10.15. I hadn't previously met with Paul Asplin or spoken to him so I introduced myself. I asked him about his notice and what it was about. I asked him for some details of the suspected breaches. I got a similar response as I had from Mr Wade and that response was that, I don't need to divulge that to you. I asked him about who he would like to interview in respect of the alleged breach or breaches and he said, again, "I don't have to divulge that information." And that was pretty much the text of that conversation.
PN288
Now, just to cover off one of those points, how long have you been involved or engaged at Port Hedland on the Pace Project for John Holland?---This is my fourth week.
PN289
And there is a Mr Bianchini employed by John Holland on the project?---He is. Mr Steve Bianchini is the site manager and - - -
PN290
Is Mr Bianchini currently engaged on the project?---He is.
PN291
And that, as far as you are aware will continue?---Yes.
**** JOHN RALPH HAYFORD XN MR COOKE
PN292
Now, since you have come to the Project, Mr Hayford, have you in any sense altered the protocols applying to right of entry?---No. We are applying the same protocols, we have been consistent throughout.
PN293
If the witness could be shown a further document, please?
PN294
If you could have a look at the document that has just been handed to you, Mr Hayford, was that document brought to your attention on Sunday, 15 June?---It was.
PN295
The document is addressed to Mr David Strough, CCI Pace Project, handwritten document on the Metal Workers letterhead?---It is.
PN296
PN297
MR COOKE: Now, in fact if you turn the document upside down, Mr Hayford, there is an imprint from the facsimile machine that it was sent from on 15 June, do you see that?---Yes, I can.
PN298
The imprint seems to apply that it was sent from the AMWU Port Hedland and the telephone number is there and that the machine has imprinted a time of 10.58 am?---Yes, that's correct.
PN299
And that was sent to Mr Strough's office?---Yeah.
**** JOHN RALPH HAYFORD XN MR COOKE
PN300
In your experience, does Mr Strough normally work on Sunday mornings?---To be honest, I can't tell you.
PN301
Okay?---I don't know.
PN302
Okay. But it wasn't sent directly to your facsimile machine?---No, it wasn't. This came via an MPDJV employee and it came to me around 2 o'clock.
PN303
Now, the MPDJV, who are they, just for the sake of the record?---They are the superintendent, the client's superintendent and they perform the superintendent's duties.
PN304
Now, when you received the correspondence from Mr Wade and Mr Asplin, did you formulate any reply - after you conversations did you formulate any reply to their correspondence?---I did.
PN305
If the witness could be shown a further document, please?
PN306
Is that a copy of the document you sent to Mr Wade on the 14th, Mr Hayford?---It is.
PN307
**** JOHN RALPH HAYFORD XN MR COOKE
PN308
MR COOKE: Now, perhaps you could indicate to the Commission, Mr Hayford, what the position you were putting forward in response to the CFMEU notice by way of exhibit A5, what was the company's response?---Well the company was stating that the CFMEU has a right to - of entry to the project under 285B of the Workplace Relations Act and it similarly has a right under 285C. And if the CFMEU wished to hold a meeting, we would facilitate that at a designated meal break. We nominated 1.00 pm in the crib facilities in the pile bed area. We've - we've also said that:
PN309
If you wish to interview employees in respect of the suspected breach, we ask that they be nominated so that we can facilitate their presence at a suitable venue for an interview.
PN310
Now, in terms of the meeting in the pile bed that is set out in the fourth paragraph, that was in terms of those employees under the CFMEU agreement?---It was.
PN311
Now, in terms of a suitable venue, what did you have in mind there?---Well it is implicit, we believe, that in the investigation of the breach that that investigation takes place without disruption of the workplace. Normally we would bring back the people that wished to be interviewed to be interviewed either in the crib hut or it could be off site. It could be at the Esplanade Hotel or it could be at the office of the pre cast yard. A suitable venue where people can sit down and discuss quietly, and take notes, rather than be under the eye of all other workers at the workplace and necessarily disrupting the work.
PN312
Now, some of the CFMEU classifications employed by John Holland are engaged on barges?---Correct.
PN313
Would you believe that on operational barge would be a suitable place to try and have a discussion, or a quiet discussion, regarding alleged breaches?---I would say no to that. The - the solitary CFMEU member on the barge is the crane driver and in the past we have requested - advised those members and requested they come in to - to one of the land sites and that is usually the pre cast yard.
**** JOHN RALPH HAYFORD XN MR COOKE
PN314
Okay. Now, just for the sake of completeness of the record, you also sent a written response to Mr Asplin at the Australian Workers Union?---I did.
PN315
And if the witness could be shown a further document, please?
PN316
Is that a copy of the correspondence you sent Mr Asplin on 14 June 2003, Mr Hayford?---It is.
PN317
PN318
MR COOKE: And save the reference to a different agreement, Mr Hayford, that was largely in the same terms as your response to Mr Wade?---Yes, similar terms, same time, different venue. But again, it sets out, you know, the same request that - to - to ask the question as to whether Mr Asplin wanted to have a meeting with his employees or whether he wished to investigate breaches. And if he wished to investigate breaches could he please advise us of who he wanted to interview.
PN319
Now, you received the correspondence from Mr Davis? It was brought to your attention on Sunday afternoon?---Yes.
PN320
So did you have, in your view, sufficient time to provide a response to Mr Davis?---I - I could have attempted a response. I thought it was probably unlikely that he would be attending his office on Sunday afternoon so I didn't bother.
**** JOHN RALPH HAYFORD XN MR COOKE
PN321
Okay. Now, on Monday 16 June did you have any discussions with the three organisers?---Yes. I had discussions in the company of David Sproule of the Chamber of Commerce from 10 o'clock to 11 o'clock at the pre cast yard and then at the pile yard and those discussions terminated around about 10 past 12.
PN322
Okay. Well, starting with the initial discussions, what did you - what were the discussions you had with those organisers?---We asked - the organisers turned up at the pre cast yard around 10 past 10. We asked the organisers to clarify their notices, what the alleged breaches were and who they wanted to interview. All the organisers again - well, all the organisers declined to provide that information. The CFMEU and the AWU wanted the right to hold a joint meeting and to be able to cruise the site and talk to their members and those eligible to be their members. The AWU, the Metalworkers, wanted a tour of the site and that request for a tour of the site was repeated a few times. David Sproule explained to the organisers that there were only two rights of entry under the agreement, namely that meetings could be held at designated mealtimes under clause 285(c) and that breaches of the award could be investigated under 285(b). And there is a distinction between the two in that 285(b) or under that clause, entry is available at any time for the purpose of investigation and interviews of those alleged breaches. And we facilitate that by arranging to bring the interviewee to the organiser and as I've said, that could be off site so as to minimise disruption to the work force.
PN323
And what was the union's response to that?---The union's response was the same response as given at the - to the very first question, that they didn't have to divulge what the breach was or breaches were and they didn't have to name the people that they wished to talk to. They wished, as I said, to jointly walk the site and talk to whoever they wished.
PN324
How long did the meeting go on for, the pre cast office?---The meeting was really in two stages. The meeting ran for about 15 minutes and at which time Bob Wade left the pre cast office and advised his attention - intention to walk out in the pre cast yard. He was advised at that time that he - he would be considered to be unlawfully on the site if he did so. In fact, he went to the crib room and he was found there a few minutes later when I left the office to follow up Bob Wade, along with David Sproule and we were joined by the other two organisers who followed us in. At that stage we resumed the discussions and those discussions ran from around 10.30 through till 10 to 11.
**** JOHN RALPH HAYFORD XN MR COOKE
PN325
And did they cover any new ground or - - -?---No, we covered the same ground again.
PN326
And in terms of that, were there any other issues Mr Wade raised?---Well, there was one other issue, I suppose, and that was that the unions ran the line that they wouldn't name the persons that they wished to interview for fear of intimidation by the company and some sort of retaliatory action against those employees by John Hollands. Both myself as the project manager and David Sproule said this is not the sort of behaviour that John Holland indulge in and in any event, there is legislation in place with significant penalties if people do choose to go that way and why would we do that?
PN327
Okay. When did the meeting conclude at the pre cast area then?---The meeting concluded at 10 to 11. At that stage all three organisers walked out of the crib room and into the pre cast yard. They spoke to - they each spoke to one or two employees. This was over a duration of some 5 minutes at which stage at 5 to 11 the - one of the organisers and I don't recall, said, "It's 5 to 11, time for us to go to the next venue," which was the pile fabrication yard.
PN328
And where is that in context to the pre cast area?---The pile fabrication yard is still in the Port Authority property. However, there is a Port Authority gatehouse between or at the entry into the pile yard and so you must pass through that gatehouse and beam gate. In terms of distance it's a matter of a few hundred metres from the pre cast yard.
PN329
Did the organisers proceed to that entrance or that - - -?---They did. They drove down there, they parked their cars outside the - the gatehouse and walked across the gatehouse and attempted to gain entry.
PN330
And what occurred then?---As they didn't have visitors passes, they were refused entry. They asked how they could obtain passes and they went across to the Harbourmaster's office and there I understand they spoke with Lyle Stanley, the Technical Manager of the Port Authority, who said that he would issue those passes if they were requested by John Holland.
**** JOHN RALPH HAYFORD XN MR COOKE
PN331
Did John Holland make such a request or you or anyone in John Hollands make such a - - -?---We did not. That was put to us as the three organisers came back to the gatehouse where I was waiting with David Sproule and Mr Steve Bianchini. We were of the view that the passes were not required and that if the organisers cared to tell us what the suspected breaches were and who they wished to talk to, we would bring those people to them so they could talk to them.
PN332
What response did the three organisers have to that?---They didn't like it.
PN333
And what did they do then?---There was some discussion for perhaps 5 minutes and ultimately they did enter the port site after being warned that they were there or they were entering the property unlawfully by a Mr Garvey, who is the Security Manager for the Port Authority and also by David Sproule. We followed - we, I mean myself, David Sproule and Mr Bianchini followed the three organisers down to the office area of the pile fabrication yard.
PN334
How long did they remain on that site?---They were on that site 20 minutes.
PN335
So at what time approximately did they leave the site or - - -?---Well, they left the site around 10 to 12 and we put to them that we might wait for Mr Mike Llewellyn, who I understand is the AWU State Secretary and industrial officer, who was in Port Hedland on that day. He had been contacted by Paul Asplin with a view to him coming down and seeking to clarify the right of entry issue. We waited till Mr Llewellyn's arrival at the gatehouse and he arrived around 5 past 12.
PN336
And when Mr Llewellyn arrived, was there further discussion on the issue?---There was. The discussion was between Mr Llewellyn and Mr David Sproule. It covered pretty much the same ground that we had covered exhaustively with the organisers already and we reached a point where the two - well, we agreed to disagree that the organisers were entitled to enter the site as a triumvirate to conduct their investigation of a suspected breach.
**** JOHN RALPH HAYFORD XN MR COOKE
PN337
Did Mr Davis assert - sorry, I withdraw that. When did the meeting conclude at the gatehouse area?---The meeting concluded at 10 past 12. At that point we said - we being Hollands and David Sproule of the Chamber of Commerce - that we would take the matter to the Arbitration Industrial Relations Commission as a dispute. The response that we - we received from Mr Llewellyn was that: never mind the Commission, that he would be going straight to the Magistrates Court to take out a summons against myself and Mr David Sproule over hindrance to the access of a union official.
PN338
Now, after the meeting concluded that day, did you receive or be made aware of a notice regarding a meeting of your employees the following day?---I did. That was brought to my attention by a phone call from one of my supervisors and the timing of that was around 2 o'clock.
PN339
And when was that meeting that - according to the notice, when was the meeting scheduled to occur?---The meeting was scheduled to occur at 6 am and the venue was to be the Wedgefield camp. And that was on the following day, the Tuesday 17 June.
PN340
And did you later receive a copy of that notice?---I did. Later that afternoon.
PN341
And which organisers or officials purported, according to the notice, to be authorising the meeting?---Well, the notice lists Brett Davis of the Metal Workers, Paul Asplin of the Australian Workers Union and Bob Wade of the CFMEU.
PN342
Now, the following morning being the Tuesday 17 June, what occurred that day or yesterday?---There was a meeting of some 50 Holland employees in the Wedgefield camp. As I understand it, the meeting ran for some 40 minutes until about 20 to - 20 to 7. I did not attend the meeting and the report I have of the meeting was given me around quarter to 8 by one of my supervisors. I have had subsequent reports of the meeting and so basically it is sort of hearsay.
**** JOHN RALPH HAYFORD XN MR COOKE
PN343
What were you advised by your supervisor as to the outcome of the meeting?---What I was advised was that there had been a vote taken, that the men had decided to withdraw their labour and it wasn't clear to me in fact, at that time, as to whether they were returning to work on Thursday or simply returning for another meeting. That has subsequently been clarified.
PN344
And clarified in what sense?---Clarified later that morning when we met with the organisers at 10 am where they advised that the Holland labour force had withdrawn their labour and there was a further meeting scheduled for 6 am on the 19th, on Thursday, again in the Wedgefield camp.
PN345
Just in terms of the normal operations, what time does your work force normally commence work on the project, Mr Hayford?---It normally commences work at 6.30 in the morning.
PN346
And how do the work force - how are they transported from the Wedgefield camp to their work locations?---They are transported from Wedgefield by bus. There are two buses. There is a 40-seater bus that takes the majority of the workers to the pile yard and the pre cast yard and there is a smaller bus that heads in the opposite direction to Finucane Island and takes the people to the island. That is a 20-seater bus.
PN347
And what time do those buses normally depart the Wedgefield camp?---Normally at 6 am.
PN348
Okay. So in the event of a meeting being scheduled for tomorrow morning at 6 am, would that lead you to the view that work will commence or could commence as normal?---No. It would - it would not. In fact, it is almost certain that work can't commence as normal at the scheduled time of 6.30. Well, for two reasons. I mean, the meeting will take a finite time anyway and the bus will not wait around. The bus has other commitments and so it creates a difficulty to get to work if people don't get on the bus and the bus departs at the scheduled time.
**** JOHN RALPH HAYFORD XN MR COOKE
PN349
Now, to move back to the meeting you had yesterday, where was that - where did that meeting take place, the 10 am meeting you referred to?---The 10 am meeting took place in the CCI office on the Finucane Island site.
PN350
And who was present at that meeting?---Present were the three organisers, Bob Wade, Paul Asplin and Brett Davis, myself and David Sproule.
PN351
Were you given any - were you as John Holland given any report back as to what had transpired at the meeting of your work force that morning?---We were. Brett Davis was the spokesman and he advised that the John Holland labour force had withdrawn their labour until this further meeting on Thursday the 19th at 6 am. He advised that the labour force were dissatisfied with the way in which the right of entry had been managed by Hollands on the previous day, and he also advised that the labour force were not impressed by the address that I had given to the majority of the work force at quarter to 5 on the Monday afternoon.
PN352
What had that address related to, Mr Hayford?---Well, what the address related to was clarifying what had occurred and clarifying that we hadn't restricted right of entry and in fact we had tried to facilitate the right of entry under one or the other of the two clauses but that we weren't prepared to see the right of entry clause under the breach clause abused to allow entry at any time by unions coming on jointly and cruising the site and talking to anybody and everybody, because that was not the intent of the breach clause as we read it.
PN353
Now, with your work force on strike, what impact is that having on the work you are contracted to carry out?---It's delaying the work for every minute that we are out.
PN354
And you have a completion date that you need to - you are required to meet?---We have a number of completion dates, all with conditions attached which include liquidator damages.
**** JOHN RALPH HAYFORD XN MR COOKE
PN355
Did John Hollands incur other costs such as fix costs yesterday and today?---Most certainly. I mean, those costs are - well, the obvious costs are the cost of the barge spread, cost of the staff salaries, the normal prelims cost just for being there.
PN356
Okay. Have you had cause to check the records of industrial lost time that John Holland have incurred on this project?---I have.
PN357
I would seek to have a further document shown to the witness, please?---Thank you.
PN358
If you could have a look at that document, Mr Hayford. Does that in your view reflect the records that your company holds regarding the lost time you've incurred on this project?---Yes, it does.
PN359
PN360
MR COOKE: Now, in terms of the second item on that schedule, the matter of Saturday the 3rd, Sunday 4 May inclusive, Mr Hayford, in terms of the unions involved, would the Metal Workers have an involvement in any - well, sorry, do the Metal Workers have an involvement in the coverage of the employees engaged on the barges?---Yes and in fact, the two primary unions - well, the primary union would be the Metal Workers and I think AWU should really read Metal Workers. CFMEU have an involvement. The AWU's involvement would be restricted to one or two people as labourers on the anchor barge, the Barker.
PN361
We would seek to just have that amended, sir, to reflect that perhaps rather than AWU it should read AFMEPKIU, if it please the Commission.
**** JOHN RALPH HAYFORD XN MR COOKE
PN362
THE DEPUTY PRESIDENT: In place of AWU or in addition to?---In addition to. There would be at least one and possibly two AWU members.
PN363
MR COOKE: Again, Mr Hayford, have you checked or caused to be checked the records of previous visits by unions to the John Holland site?
PN364
THE DEPUTY PRESIDENT: Before you move on to that, Mr Cooke. Mr Hayford, the man-hours. What would the daily or weekly man-hours be?---The daily hours are 10 hours a day and depending which week, whether it's the Sunday on or the Sunday off, you do - you're doing 60 or 70 hours.
PN365
I'm just trying to get a scope of what the total - total man-hours for the sit would be. So that is what - so in a fortnight would be easiest, wouldn't it? It would be what?---Well, on a - on a daily basis, I mean, are you looking at checking the arithmetic here?
PN366
I'm just trying to get a scope of it. How many employees - what, there is 80 employees?---80 wages employees, yes. 800 hours a day. Multiply that by 6 or 7 for a week, 13 for a fortnight.
PN367
Yes, thank you. So there is 10 hours work per day, is there?---Yes.
PN368
Yes. Thanks. Sorry, Mr Cooke.
PN369
MR COOKE: Thank you, sir.
PN370
Mr Hayford, have you checked or had cause to be checked the record of union visits or right of entry requests to your - John Holland's project at Port Hedland?---I have.
**** JOHN RALPH HAYFORD XN MR COOKE
PN371
If the witness could be shown a further document, please?---Thank you.
PN372
If that document entitled: Schedule of Union Access to John Holland, current to 18 June 2003, Mr Hayford, does that accord with your understanding of the record of these visits?---I believe that to be an accurate record of the visits, yes.
PN373
PN374
MR COOKE: Now, a number of these visits are at 9.30 am in the morning. Why would that time be significant, Mr Hayford?---Well, that's the designated smoko time and in fact that would - and 1 o'clock is the lunch time. The great majority of those visits are at those times and that would be for a meeting of designated meal breaks.
PN375
Now, if one looks through this, was there much work going on on site prior to 11 February this year?---Well, the answer to that is no, there was not.
PN376
And from the start of February this year, the Hollands work force has increased in number?---Yes, it has.
PN377
Now, the entry on the 12th - or the entry shown, date shown on 12 March, Mr Hayford, from your understanding of the records held by your company, that entry was occasioned by Mr McDonald and Mr Wade of the CFMEU?---It was.
PN378
And arising from that entry there, if you go back to exhibit A7, some 52 employees then took strike action?---Yes, they did.
**** JOHN RALPH HAYFORD XN MR COOKE
PN379
And that action lasted for some 4 days?---Yes, it was a 4-day strike.
PN380
The second, the entry marked for Friday 4 April 2003, is marked with a double asterisk notation down the bottom. You understand John Holland permitted a meeting during working hours for the purposes of the employees voting - the CFMEU employees voting on the terms of a certified agreement?---I do.
PN381
And on the entry, the date Friday 2 May 2003, at 3 pm. 3 pm is not a normal work break?---No, it is not.
PN382
And on that occasion, again from your records, the Metal Workers and the CFMEU were permitted access to the piling barges?---They were and in a moment of conciliation by Hollands, allowed to go out to the barges to address their members.
PN383
And the following day those said same barge crews were addressed by a joint union meeting in the Wedgefield Village?---Yes, they were.
PN384
And did strike action ensue from that meeting?---It did.
PN385
So, in your opinion, Mr Hayford, do you believe John Holland have facilitated regular right of entry by all three unions to your project at Port Hedland?---Yeah, most definitely. And, I mean, I think that is very evident from the number of visits that have been tabulated on this sheet.
PN386
Now, from your understanding, do you understand Mr Wade to be a resident of Port Hedland or Karratha?---I understand he is a resident of Karratha.
PN387
And, indeed, if you go back to your correspondence to him at exhibit A5, you, in fact, sent that to his Karratha address?---
**** JOHN RALPH HAYFORD XN MR COOKE
PN388
THE DEPUTY PRESIDENT: He doesn't have A5 in front of him, I don't think.
PN389
MR COOKE: Sorry?---Thank you. I have. Yes, that is the Karratha address.
PN390
So, Mr Wade, notwithstanding he doesn't actually live in the town, you have certainly - without counting the occasions, he would appear to have had more access to the site than any other official? If you just look at the tabulations in terms of exhibit A8?---Could I have exhibit A8 again, please. Sorry, can I have the question again, please.
PN391
Notwithstanding Mr Wade is not in fact a resident or to the best of your knowledge a resident of Port Hedland, if you look at exhibit A8, he appears to have had more instances of entry to the site - - - ?---He has, yes.
PN392
- - - than any other official?---Yes, he has.
PN393
Now, in your opinion, Mr Hayford, could have the unions concerns over this right of entry issue been dealt with through the dispute settlement procedure contained within the certified agreement?---Yes, it could have been.
PN394
No further questions at this time, Deputy President.
PN395
THE DEPUTY PRESIDENT: Does anyone wish to cross-examine?
PN396
MR DALY: Your Honour, if I could seek leave, if I could, at this time to depart and be replaced by Mr Llewellyn. I have another appointment which, if it is convenient, I would like to attend.
**** JOHN RALPH HAYFORD XN MR COOKE
PN397
THE DEPUTY PRESIDENT: Thank you, Mr Daly. So, Mr Llewellyn, you are about to cross-examine, are you?
PN398
MR LLEWELLYN: One of these gentlemen first. I just need to catch up with a couple of documents, if I can.
PN399
THE DEPUTY PRESIDENT: Mr Kucera, do you intend cross-examining?
PN400
PN401
MR KUCERA: In fact, when you talk about the disputes procedure that could have been used to resolve the matter, it was wasn't it? The issue was raised with the company the day before?---It had got to the level of the disputes settlement procedure where there was no agreement between the Project Manager and the organiser.
PN402
But the issue had been raised the day before? Yes or no?---Say - - -
PN403
Well, the issue had been raised under the disputes procedure the day before the dispute started. That is right, isn't it?---It had been raised on the Monday.
PN404
Right?---Yes, it - sorry, the answer to that is, yes, it had been. But we agreed to differ at the level of Project Manager and organiser. And the next step, of course, is to take it to the arbitration, Industrial Relations Commission.
PN405
Right. Now, under the agreement, that is not a mandatory step, is it?---Well, as I understand it, it is the next step if agreement can be reached.
**** JOHN RALPH HAYFORD XXN MR KUCERA
PN406
But it is not mandatory?---Well, what do you suggest?
PN407
Well, it is not mandatory under the agreement to have the matter referred to the Commission, is it?---Well, we see that as the place to go under the disputes settlement procedure. We don't - certainly don't see the Magistrate's Court as the place to try and settle anything.
PN408
Where does it say in the agreement that you have to go to the Commission?---
PN409
THE DEPUTY PRESIDENT: The witness, I don't think, has the agreement in front of him, Mr Kucera.
PN410
MR KUCERA: All right. Do you want to show him a copy?
PN411
MR COOKE: If it is of assistance, Deputy President, I have a spare copy there maybe.
PN412
THE DEPUTY PRESIDENT: Yes. Thanks.
PN413
MR KUCERA: Can you just go to the disputes procedure which, under the agreement we have - I think it is clause 5, isn't it? Settlement of issues, page 22. Is that right?---Okay. Well, I am on page 22 and 23.
PN414
THE DEPUTY PRESIDENT: Perhaps, before you answer that question, Mr Kucera, if what you are trying to establish is what the meaning of that provision is, perhaps you can simply address that to me. It is fairly self-evident from what I can see in any event. But I don't know whether it is up to a witness to interpret the document, unless you want to see whether he has got an understanding of what it says anyway.
**** JOHN RALPH HAYFORD XXN MR KUCERA
PN415
MR KUCERA: Yes. I mean, the reason for asking him the question was, sir, he was asked a question about whether or not in his opinion the matter could have been referred under the dispute procedure and he said, yes. So, he has confirmed that an attempt was made and I can go to the other point later.
PN416
THE DEPUTY PRESIDENT: Well, certainly, if you want to phrase the question in that way. But if you are asking for an explicit legal interpretation of it, of course the implications of that are - the capacity of a witness to do that is a bit different. But quite appropriate for you to ask his understanding of what the clause means.
PN417
MR KUCERA: Right.
PN418
Now, you have also given some evidence about attending the site to investigate suspected breaches. The approach that your company has taken is that you want to know what the breach is. Is that correct?---Yes.
PN419
And you also want to know the persons involved or the person who is affected by the alleged breach. Is that right?---Yeah. For the purpose of bringing them together so that the - they can be interviewed by the organiser.
PN420
Right. And you don't see that during working hours an organiser should be allowed to go into the workplace to, say, inspect the work?---If it is in relation to a suspected breach, he has got every right at any time during working hours.
PN421
Right. So, you would agree that he is entitled to go onto the site to inspect or view any work?---Look, where we are heading now is - the rights are set out in the Workplace Relations Act. And in relation to a suspected grievance, there are a number of obligations on us as an employer. And they would include providing documentation relevant to the suspected breach, inspection of site or machinery if that was relevant to the suspected breach, and making available people connected with the suspected breach for the purpose of interview. Those are obligations on us under the Act.
**** JOHN RALPH HAYFORD XXN MR KUCERA
PN422
So, you don't disagree, then, that it may necessitate an official going to the work area where the suspected breach is occurring. You don't disagree with that?---Yeah, it may do.
PN423
So, yes or no, you don't disagree?---I don't disagree.
PN424
Right?---It may do. And it would depend on the nature of the breach.
PN425
Now, the company is opposed to union officials having joint meetings with employees, isn't it?---Yes, we are.
PN426
And where, to your knowledge, does it say in the Workplace Relations Act that they can't have joint meetings?---I don't know that it does.
PN427
All right?---What we are working under, though, is our agreements. And nowhere in any of the separate agreements with each of the three unions does it talk about us facilitating joint meetings of more than one organiser.
PN428
But Mr Davis and Mr Wade have done in the past on this project, haven't they?---I am not aware of any joint meetings. And, in fact, I have - on my checking there have been no joint meetings held of - or called of members of more than one union.
PN429
But they may have occurred before you got to the project?---No. I have made those inquiries and I am satisfied that that has not occurred, not on the John Holland site.
PN430
Not while Mr Bianchini was supervisor?---No, not while Mr Bianchini was supervising.
**** JOHN RALPH HAYFORD XXN MR KUCERA
PN431
And you are sure about that?---Yes. Having asked him, yes.
PN432
And you have only been on the project for, what, 4 weeks?---This is the fourth week.
PN433
All right. Well, Mr Wade's view is a bit different. Mr Wade would give evidence that that is exactly what has happened in the past. That he was able to hold joint meetings and, in fact, did so with Mr Davis. What would you say about that?---That is contrary to what I have been advised.
PN434
All right. What about what happened on Friday 2 May when there was a meeting on the piling barges? That was a joint meeting, wasn't it?---Look, I wasn't present at that stage. My understanding is the organisers, either separately or jointly, addressed their members on the barge. I wouldn't regard - - -
PN435
So, you don't know if it was a joint meeting?---Well, I am told it was not.
PN436
Well, Mr Wade would be in a position to give evidence that that is actually a contrary proposition, what you are suggesting. That that is what occurred. He would actually give evidence that there was a joint meeting. What would you say to that?---Ask Mr Wade to come and give evidence then.
PN437
I don't have any further questions, sir.
PN438
PN439
MR LLEWELLYN: Mr Hayford, just in terms of your comment about the agreement on the dispute settling procedure, did you receive a grievance from any of your employees about right of entry?---I am sorry, I don't understand the question.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN440
Well, it is fairly simple. Has any of your employees lodged a grievance with you over the right of entry?---Not that I am aware, no.
PN441
That is the first step of the grievance procedure, is it not? Well, you can't have a grievance unless someone raised one, surely?---Well, there has been no grievance lodged with me.
PN442
That is right. So, the grievance procedure doesn't apply, clearly, does it? You have got no grievance to discuss. It can't possibly apply? Well, that is correct, isn't it? Don't you read your agreements?---
PN443
MR COOKE: There is no need to badger the witness. We can be polite.
PN444
MR LLEWELLYN: Well, perhaps the witness could be directed to answer the question.
PN445
MR COOKE: You could be polite. There is no need to be abrupt with people.
PN446
THE WITNESS: Well, if there is a grievance, the grievance has been put to us verbally that we are not facilitating right of entry in accordance with the union's interpretation of the breach clause. But we have disagreed and we disagreed as recently as Monday afternoon with yourself. And the agreement was - the disagreement was between yourself and David Sproule as to whether we were administering the right of entry correctly or whether we weren't.
PN447
Well, if I put this to you, Mr Hayford. Your only problem when you spoke to me with Mr Sproule on Monday was that you insisted that the union identify either its member or the person that may be laying a complaint against John Holland. That is correct, isn't it?---We - in order to facilitate - - -
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN448
Well, did you ask - - - ?---In - - -
PN449
Just - - -
PN450
THE DEPUTY PRESIDENT: Mr Llewellyn, allow the witness to answer your question.
PN451
THE WITNESS: In order - - -
PN452
MR LLEWELLYN: Well, all I am asking, sir - - -
PN453
THE WITNESS: In order to facilitate - - -
PN454
THE DEPUTY PRESIDENT: Mr Llewellyn, allow the witness to answer the question. You have asked it. He is entitled to answer it. If you have further questions to ask or contesting of that answer, you will be entitled to. Yes, proceed.
PN455
THE WITNESS: All right. In order to facilitate the investigation of the suspected breach, yes, we did ask for what the suspected breach was and who the union organisers would like to interview.
PN456
MR LLEWELLYN: And the purpose of that was simply for the union to identify the individual member or person that was making the allegation. That is correct, isn't it?---How else can we bring that person to the interview unless we know who you want to talk to?
PN457
I will get to that. And what you said then, provided you give us the individual's name, we will go and get him and we will take him to a room where you may speak to him. That is right, isn't it?---Yes, that would be our preferred position.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN458
So, you could go and grab the individual first and say whatever you wish to him before you get him to a room?---No, we would escort him to the room. But, again, it depends on the nature of the breach. If you don't know the nature of the breach - - -
PN459
Well, where in the Act does it say I have to tell you what the breach is?---It doesn't.
PN460
All it says is I have to - - - ?---It doesn't but - - -
PN461
- - - investigate a suspected breach, doesn't it?---It doesn't. And the Act is vague in that regard.
PN462
Well, Mr Hayford - - - ?---I mean, how could - - -
PN463
THE DEPUTY PRESIDENT: Mr Llewellyn and the witness, you can leave the interpretation of the Act to me and any submissions you wish to make but - - -
PN464
MR LLEWELLYN: Yes, I intend to do that, sir.
PN465
Mr Hayford, all I have to do is notify you that there is a suspected breach. That is correct, isn't it? That I suspect a breach?---If you say so.
PN466
Well, that is the notification you received, is it not?---Yeah. And having received the notification, I asked the common sense question, well, what is the nature of the breach?
PN467
All right. And John Holland's position all along on this project is to not allow officials to meet with employees down on the job?---No, that isn't the case.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN468
Well, wasn't there a dispute earlier in this project because John Holland's position is if you want to meet the employees, we will bring them off the job?---In respect of right of entry under the breach clause, that would be our preferred position and the reason for that is that implicit in the right of - well, implicit in the right of entry clause is that the workplace will not be disrupted while these inquiries are being made.
PN469
Mr Hayford, that is your position even if the meeting is to be held during crib time under 285C, is it not?---Sorry, I don't understand.
PN470
Well, regardless of whether it is an inspection of a breach - even where there has been application to speak to the employees during their crib time, your company's position has been to remove those employees from the workplace to an office outside of the work site to enable a meeting to occur, rather than have the officials come onto the workplace and meet during crib times. That is correct, isn't it?---My understanding - and I think you might be confusing the two rights of entry here. Is that when you have asked for a meeting of your members, we have facilitated that and that would be at lunch or smoko time. You know? So there is no question of separating out your members for a meeting.
PN471
Isn't there? This is the second 127 order over such an issue of right of entry that your company has applied for, isn't it, on this project? That is correct, isn't it?---I don't know.
PN472
You don't know. So, you haven't looked at those records? You have looked at when all the disputes were but never whether you have applied for 127 orders before?---I wouldn't know whether we have applied for more than one 127 order or not.
PN473
You know there has been more than one dispute over this issue, don't you?---I know that there has been a dispute but in terms of the number of 127 orders, I don't know.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN474
Well, perhaps if I put it to you this way, Mr Hayford. I can give evidence in relation to your company's refusal to allow our union onto meet with our people who were members or eligible to be members of our union who worked in the crane section. And your company refused to facilitate that on the basis that those persons weren't eligible to be our members. That is correct, wasn't it?---
PN475
THE DEPUTY PRESIDENT: Yes, just before you answer that. Mr Cooke?
PN476
MR COOKE: That would appear to be more of a submission than a question, sir.
PN477
MR LLEWELLYN: Well - - -
PN478
THE DEPUTY PRESIDENT: I don't know about that, Mr Cooke. Mr Llewellyn indicated he intends to
PN479
MR LLEWELLYN: I am happy to give evidence on the subject.
PN480
THE DEPUTY PRESIDENT: Mr Llewellyn, can you let me finish?
PN481
MR LLEWELLYN: Sorry. I was actually letting you know, sir.
PN482
THE DEPUTY PRESIDENT: He was indicating that he may give evidence to that effect himself. He has obliged, Mr Cooke, to give this witness the opportunity to give an answer to that. Okay. Mr Llewellyn, can you re-put the question.
PN483
MR LLEWELLYN: I will re-put the questions, thanks.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN484
Mr Hayford, I put it to you that my evidence will be that your company on a previous occasion refused entry to my union to speak to people in the crane section on the basis that they weren't eligible to be members of my union. That is correct, isn't it?---I don't know.
PN485
The same position exists now. As far as your are concerned, Mr Asplin is not entitled to go and address the persons employed as crane drivers who, I understand, are now covered by a CFMEU agreement?---No, the coverage is by the CFMEU. And we wouldn't see any need for you to talk to employees covered by another union.
PN486
Despite the fact that they may be members of my union and eligible to be members of my union?---Well, it is a question of coverage, of what your union covers on the project.
PN487
So, is the answer then, in relation to employees that are either members or eligible to be members, if you have a position that they shouldn't be covered by our union, you won't allow access?---If they fall into classifications outside of the coverage afforded to your union on this project, yeah.
PN488
So, that is the coverage as determined by your company?---I don't think there is any argument about coverage.
PN489
Well, Mr Hayford, I am - - - ?---Of which union covers what classifications.
PN490
Is that coverage as is determined by your company?---Well, it is the coverage that is determined on this project.
PN491
By whom?---Well, what are we talking about? Crane drivers?
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN492
Who determines the coverage of the particular employees on this project?---Well, the crane drivers, as I understand it, are covered by the CFMEU.
PN493
Determined by whom? Is it you that makes that determination?---No, it is not me.
PN494
It is you that refuses the right of entry though?---Well, I mean, my understanding is that crane drivers are covered by the CFMEU and while you might have coverage of crane drivers elsewhere in other jurisdictions, you don't have it here.
PN495
So, which jurisdiction are we in now?---Well, we are talking about what applies in Western Australia and Port Hedland.
PN496
Right?---And on the Pace site.
PN497
So, Mr Hayford, are you aware that our union has the right to cover crane drivers?---Well, that is not my understanding. My understanding is on our project the crane drivers are covered by the CFMEU.
PN498
See, the reason I ask is your advocate, on the last occasion we were here, actually gave a submission to the effect that those crane drivers were captured by 127 orders on the basis that your company was respondent to the AWU Construction and Maintenance Award 1989. Does that come as a surprise to you, does it?---I don't think it is relevant to what we are supposed to be talking about here.
PN499
Well, it is an AWU award, isn't it? So, does that imply that we have coverage on your site?---Look, I don't - - -
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN500
MR COOKE: Well, Mr Llewellyn is being a tad misleading. In the absence of a CFMEU agreement, that submission was made. Now, there is a CFMEU agreement in place. So, it is a bit misleading to - - -
PN501
MR LLEWELLYN: Not at that stage.
PN502
THE DEPUTY PRESIDENT: Well, Mr Cooke, you be entitled to re-examine. You will be entitled to make submissions. I am sure you will make those points at the appropriate time. Mr Llewellyn?
PN503
MR LLEWELLYN: Mr Hayford, can you tell me, then, who in your organisation determines which official can go and talk to which employees?---Well, that decision would be left with the Project Manager on each of the projects.
PN504
So, on this project, that is you?---Yes. I can take advice.
PN505
And to whom do you get that advice from or from whom, I should say?---Typically, I would probably go to the Western Australian Manager, Richard Mickle.
PN506
All right. So, in terms of this particular project, can you tell me who has determined whether or not, for example, Mr Asplin can go and speak to people other than the people employed in the - I think it is in the marine area. That Mr Asplin is only entitled to go and talk to people employed and covered by the Marine Work Certified Agreement. Who has made that determination by your company?---I don't know that that determination has been made by our company. Why do you say that?
PN507
So, are you saying that he is not restricted to that area?---Mr Asplin's coverage is for AWU workers.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN508
THE DEPUTY PRESIDENT: Mr Llewellyn, I think you have exhausted this area. This is a 127 application. It is not any other application under the Act or under the agreement.
PN509
MR LLEWELLYN: I understand that.
PN510
THE DEPUTY PRESIDENT: If what you are trying to establish is that the underlying issue or the nature of the dispute might be of the nature that you are trying to assert, I think you have exhausted that issue with this witness.
PN511
MR LLEWELLYN: Okay.
PN512
Mr Hayford, could I then ask you then - perhaps, just finally, how often has your company refused right of access by each of the three unions?---We haven't refused right of access.
PN513
Ever?---We administer the right of access clauses in the way in which the agreements are written.
PN514
All right. Well, let's go back to this 3 o'clock meeting. You said that the 3 o'clock meeting was during working hours, when you were asked by Mr Cooke. Do you recall that?---Which meeting precisely? Is this - - -
PN515
Well, there is a number of them that appear here. One, for example, 6 March. I thought Mr Cooke referred to a 12 March but there wasn't one. There was one in May, I believe, that occurred at 3 o'clock?---Yes. So, what is the question?
PN516
You said that those meetings were all during working hours?---That would be during working hours, I believe.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN517
And that issue of the 3 o'clock working hours was actually the last dispute because employees were actually entitled to a smoko break at 3 o'clock. That is right, isn't it?---I don't know.
PN518
So, if the officials wanted to go in and investigate that breach or speak to people about the application of the agreement and they were denied access at that time also by your company - because your argument then was it is not a smoko break. So, you don't know about that? You haven't made those inquiries? You just know that these are the list of disputes or the list of entries that were granted?---That is - I am not across all of these issues as I would be had I been on the job.
PN519
Who made that list for you, exhibit A8?---That was made by my staff.
PN520
So, you got somebody else to go and look that up?---Yeah.
PN521
So, you have no direct personal knowledge of all those rights of entry?---Only insofar as how I have been briefed, yes.
PN522
Who made it up for you?---That has been made by Mr Bianchini.
PN523
So, he has made that up from the site for you?---Well, I mean, he is the obvious person to do that because he has been present on site during all of these occasions.
PN524
He would also be the obvious person to be able to provide all the written notifications to attend site. Did he make that list up for you as well?---What list is that?
PN525
Well, all the notifications you received where you wouldn't let people come onto the site?---Well, I haven't seen those. And, I mean, I can't speculate about, you know, so-called notices that you say you have not been allowed to visit site that I haven't seen.
**** JOHN RALPH HAYFORD XXN MR LLEWELLYN
PN526
So, you just don't know about those?---No, I don't know about those.
PN527
Okay. I have nothing further, thanks.
PN528
THE DEPUTY PRESIDENT: Mr Edmonds?
PN529
PN530
MR EDMONDS: Now, you say that you are the Project Manager. Is that correct?---I am.
PN531
And you are responsible for decisions as to the right of entry onto the premises - onto the site. Is that correct?---Yes, I am.
PN532
Okay. And how long have you been doing that job for?---As I said, this is my fourth week.
PN533
Right. Who was responsible for the right of entry onto the site before you got there?---The Project Manager.
PN534
And who is that?---That was Mr Bianchini who was the Project Manager at that time.
PN535
Right. Now, you also said that you haven't altered the protocols with respect to the right of entry under the project since you have come on board. Is that correct?---Correct.
**** JOHN RALPH HAYFORD XXN MR EDMONDS
PN536
Okay. I put it to you that there was an agreement between the relevant unions and Mr Bianchini with respect to right of entry onto the site in operation before you got there?---Not according to my knowledge.
PN537
Okay. I put it to you that there was an agreement between Mr Bianchini and the relevant unions that there be no hindrance to their rights of entry and that the unions would be allowed joint rights of entry under the project?---I think you're confusing joint rights of entry with simultaneous rights of entry.
PN538
No, I put it to you that the agreement between the union and Mr Bianchini was that unions could enter at the same time?---And they can, simultaneously. At the same time. That's what it means.
PN539
And that they could jointly address their meetings?---No. That's not my understanding. I don't believe that that agreement - it might exist in your mind but it certainly doesn't exist in ours.
PN540
All right. Well, there is going to be evidence led to that effect. Do you have any direct knowledge of that agreement between Mr Bianchini and the relevant unions?---I do not.
PN541
Only what Mr Bianchini has told you?---Yes. What Mr Bianchini and what others have told me.
PN542
Right. Now, is Mr Bianchini or those others going to be called to give evidence today?
PN543
THE DEPUTY PRESIDENT: You don't have to answer that question. That is for Mr Cooke to either do or not do.
**** JOHN RALPH HAYFORD XXN MR EDMONDS
PN544
MR EDMONDS: Certainly, sir.
PN545
But you couldn't - you don't have any direct knowledge of your own to challenge that interpretation I put to you, do you?---Only - again, what I've been told by the administrative person, in Mr Bianchini.
PN546
No, no, no, no, no. No, no, you don't have any direct knowledge, do you?---No, I don't.
PN547
The person with that direct - - -?---I do not have any direct knowledge of such an agreement.
PN548
And the person with that direct knowledge would be Mr Bianchini?---If you say so.
PN549
Well, it is a question. Is Mr Bianchini the person who had that direct knowledge?---Look, if there is no agreement, then why would Mr Bianchini have that knowledge?
PN550
When there was a meeting on Tuesday, I believe it was - on Monday, I believe it was, at the gate, was it true that you asked for both the details of the breach and the name of the employees that the union sought to interview?---Yes, that was true.
PN551
I put it to you that in truth and in fact, you just sought the name only of the employees that the union sought to interview and you had no interest in the breach whatsoever?---No, that isn't correct. We had asked at that time and also during the course of the morning on several occasions, what the nature of the breach was. And in fact in the telephone calls that go back to the Saturday to call Asplin and Bob Wade, again I would ask for the nature of the breach.
**** JOHN RALPH HAYFORD XXN MR EDMONDS
PN552
Okay. If I can draw your attention to exhibit A5, can you point out in that letter to me where you asked the union for details of the alleged breach?---No, it doesn't appear in this letter.
PN553
So you didn't really seek the details of the alleged breach at all, did you?---Well, I did ask for the details of the breach in the telephone conversation I had before I wrote the letter.
PN554
But really, the more important thing to you was to get the names of those employees who were alleging breaches of the agreement?---I mean, no - - -
PN555
Well, you thought to ask - - -?---- - - no, the answer to that is no, you can't draw that conclusion.
PN556
Well, you thought to ask for their names. That is true, isn't it?---Well, it might - - -
PN557
You didn't ask what the breach was, though?---We had been told by both of the organisers, Bob Wade and also - I've got the Bob Wade here - one here too, by the way. A5.
PN558
Yes. That is the one I asked you to look at?---Oh, all right. Okay. Sorry, where was I?
PN559
We were on the issue of the alleged breaches and your failure to ask what they were?---Well, they were - the question had been asked what the alleged breaches were in the telephone conversation that I had with both Bob Wade and with Paul Asplin. The fact that that hasn't been repeated in the letter, I don't think you can draw too much conclusion from that.
**** JOHN RALPH HAYFORD XXN MR EDMONDS
PN560
So you already knew what the alleged breaches were then?---No, we did not.
PN561
Well, you just said that you had already discussed it with them and they had already told you - - -?---We did not. And in fact - - -
PN562
- - - and that is why you didn't bother asking?---- - - in fact - - -
PN563
Did you know or not?---Can I finish? The - in both those conversations with Bob Wade and with Paul Asplin, they advised that they weren't required to divulge the nature of the breach.
PN564
But you just said - - -?---And they went on to say that they weren't required to give us names of those people that they wished to interview in relation to the breach.
PN565
You said in your evidence just 30 seconds ago and everyone in this room heard it, that those organisers told you what the alleged breaches were and that is why you didn't ask for it in the letter, because you already knew what those alleged breaches were?---Let me - let me explain. The - - -
PN566
Did you know what those alleged breaches were?---No. No.
PN567
THE DEPUTY PRESIDENT: Let the witness give the answer?---The - the only advice of a suspected breach was given at 10 to 11 in the pre cast yard and I was asked the question: did I know that we had a crane driver without an appropriate ticket operating a crane on our site? And I asked the question: Which crane? And I was told which crane and I said: that is a person that is a trainee operator operating under supervision of an open-ticketed crane driver. And the response that I got to that was: the ticketed crane driver must be on the running board or must be in the cab under those circumstances. And I said I didn't believe that that was necessary in the circumstances when that person had been under training for some 6 weeks and that if the supervisor was confident to supervise from the ground or to dog for the trainee crane driver, then we considered that to be an acceptable procedure.
**** JOHN RALPH HAYFORD XXN MR EDMONDS
PN568
MR EDMONDS: So your evidence is that you didn't know what the breach was up until the 16th, the Monday?---Till 10 to 11 on Monday.
PN569
Okay. So in your correspondence of 14 June, why didn't you ask what the alleged breach of the Act was? Why did you merely just seek the names?---Well, all I would say is that you might put that down to an oversight. I had already asked the question over the phone.
PN570
We have got nothing further for this witness, sir.
PN571
PN572
MR COOKE: Thank you, sir.
PN573
I believe the witness has the CFMEU agreement before them. If you do, Mr Hayford, the CFMEU agreement?---I do.
PN574
Now, if you could turn to page 6 of that agreement, Mr Hayford. That sets out the classifications covered by the agreement, if I'm not mistaken?---Yes, it does.
PN575
And what are those classifications?---Well, there's various classifications of crane drivers and there's carpenters and painters.
PN576
And if you turn to clause 2.3 of the agreement, application, that sets out that the agreement applies to those classifications employed by John Holland on the Pace Project. Do you agree?---It does, under 23(b).
**** JOHN RALPH HAYFORD RXN MR COOKE
PN577
If the witness could be shown a copy of the AWU agreement, if it please - I have a copy here that may be of assistance?---Thank you.
PN578
Now, if you turn to the same clause - turn to page 5, clause 3.1, Mr Hayford?---Yes.
PN579
And you will see there is various classifications there of civil construction worker?---Yes.
PN580
And it refers to appendix 1 for the definitions of that. Do you follow that?---Yes.
PN581
If you could turn to that appendix 1, please. And just for the sake of the record if you could - sorry, go back to the front of the document. Could you read out the cover page of the document, the name of the agreement you were referring to?---
PN582
This is an agreement between John Holland Pty Limited and the Australian Workers Union.
PN583
Okay. And that document is entitled: John Holland Pty Limited (Product and Capacity Expansion/Marine Works) Certified Agreement 2002?---2002. Yes, it is.
PN584
Now, if you go to the classifications in appendix 1?---Yes.
PN585
Do you see any crane operator classification in that appendix?---No, I don't.
PN586
So that would lead you to the view the AWU had agreed that was their classifications covered by their agreement on this project, would it not?
**** JOHN RALPH HAYFORD RXN MR COOKE
PN587
MR LLEWELLYN: Well, I object to that. The witness isn't able to give a view of what the AWU thinks.
PN588
THE DEPUTY PRESIDENT: What was the question again, Mr Cooke?
PN589
MR COOKE: I will perhaps rephrase the question, sir. Is there a - on page 27 of the document, Mr Hayford, are there signatures on that page?---Yes, there are.
PN590
Is there a signature for and on behalf of the Australian Workers Union?---Yes, there is.
PN591
I'm not asking you to decipher it?---Okay.
PN592
Just for the record, that someone from the AWU had signed that they agreed.
PN593
THE DEPUTY PRESIDENT: What are you trying to establish, Mr Cooke?
PN594
MR COOKE: Mr Llewellyn was seeking to establish that they somehow had some agreement or some position where the company had classified crane operators to a particular agreement. My point is simply the union have agreed that they don't have coverage of crane operators.
PN595
THE DEPUTY PRESIDENT: Well, you can do that by - you don't have to go laboriously through the evidence of that. I know that you're re-examining but you can do that by submission.
PN596
MR COOKE: No further re-examination then, sir, thank you.
**** JOHN RALPH HAYFORD RXN MR COOKE
PN597
PN598
THE DEPUTY PRESIDENT: I might take a short break for the moment. We will adjourn.
SHORT ADJOURNMENT [3.53pm]
RESUMED [4.10pm]
PN599
THE DEPUTY PRESIDENT: Mr Cooke?
PN600
MR COOKE: Sir, that concludes our evidence in this matter. There are some comments I would seek to make but it may be appropriate if I briefly address the Commission subsequent to the unions' submissions. Pick that up. If it please the Commission.
PN601
THE DEPUTY PRESIDENT: If they have got any. Yes. Where are we with whoever wants to do whatever?
PN602
MR KUCERA: Look, sir, the evidence we have just heard from the applicant raises a number of important issues. First and foremost is that in seeking a section 127 order, as I said before, sir, it is a serious step. And the Commission obviously has a power to exercise a discretion to issue an order. And it appears from the authorities that it is a fundamental principle that the person seeking the order ought to come to the Commission with clean hands. What we say, sir, is that there was an agreement in relation to how right of entry would be exercised following the dispute that occurred in March. Mr Wade and Mr Davis, we would say, need to be called to give evidence as to what was agreed between the parties on how that protocol would be breached.
PN603
And they are also the two people who can give evidence in relation to the fact that in the past there were joint meetings. The relevance of it all is this. Is that there was an agreement between the parties. We say the agreement was breached. And that led to the dispute that we are presently involved in. Immune from the orders, the 127 orders, in the Coal and Allied case and the later case of the Maritime Union of Australia v Patrick Stevedores Number 1, the second authority that was referred to by my friend - immune from the section 127 orders was reciprocal breaches of a dispute settlement procedure and reciprocal breaches of the agreement. What we say is that there was an agreement.
PN604
It was breached by the company. That has caused the dispute in essence and it hasn't come to the Commission with clean hands. The matter was being dealt with in accordance with the dispute resolution procedure. There is also arguments about breaches of the Act. And those matters need to be ventilated because, as I said, sir, the issuance of a section 127 order is a serious step. An adverse inference ought to be drawn about the company's evidence on what we are saying is a breach of the agreement, because Mr Bianchini hasn't been called to give evidence about it. Although Mr Hayford denied the existence of such an agreement, the agreement, we say, was with Mr Bianchini. He is not here.
PN605
And the company's failure to call Mr Bianchini allows you to draw an adverse inference about that evidence. What we would like, sir, is an opportunity for an adjournment so that we can get Mr Davis and Mr Wade to give evidence tomorrow sometime or at a later stage. And so for that matter, sir, we would ask that this matter be - - -
PN606
THE DEPUTY PRESIDENT: They would be available tomorrow?
PN607
MR KUCERA: Sorry?
PN608
THE DEPUTY PRESIDENT: They would be available tomorrow?
PN609
MR KUCERA: Yes, sir, they would be.
PN610
THE DEPUTY PRESIDENT: Are they in Port Hedland or Karratha or both?
PN611
MR KUCERA: Yes, they are. Obviously the difficulty we would have is - there is two ways for them to give evidence. One could be by video link-up and the other would be by flying them down. We don't propose to fly them down, sir, because of the nature of the matter. We would suggest that it would probably be better if we could try and arrange a video link-up of sorts, if they were to give evidence.
PN612
THE DEPUTY PRESIDENT: Yes. How are we going to do that?
PN613
MR KUCERA: It has been done before.
PN614
THE DEPUTY PRESIDENT: We have got facilities here.
PN615
MR KUCERA: Yes.
PN616
THE DEPUTY PRESIDENT: Your submission isn't a real surprise to me, I have got to say, Mr Kucera. And in anticipation of it, I made inquiries or caused to have inquiries be made as to whether there is any availability of the Port Hedland Court House video link. That is not available. So, do you have any suggestions? I will go off record and we might discuss this for a moment. If we can just go off record. You can stay here.
OFF THE RECORD [4.14pm]
RESUMED [4.19pm]
PN617
MR COOKE: Sir, we would oppose any request for an adjournment. Yesterday we caused to be sent to each of the unions a facsimile indicating that Mr Hayford, the Project Manager for John Holland was expected to give evidence in these proceedings and at this point, the point at which we sent it, we had received at least verbal advice from your Chambers, sir, that the matter would be listed for 12 noon tomorrow. The fact of the matter is the timing of this matter, as with all disputes, is exquisitely within the unions' control. They circulated the notice of the meeting. They set the time of the meeting. They addressed the meeting and convened the meeting. They can hardly argue that they now wish to lead evidence.
PN618
They had every reasonable opportunity to have evidence available today and have declined to do so or not taken the necessary steps to do so. So, we would oppose any adjournment of these proceedings. Every day that this dispute continues is providing a cost to John Holland and a significant interruption to their schedule. So, we would seek to have the matter proceed forthwith, if it please the Commission.
PN619
THE DEPUTY PRESIDENT: Yes. Mr Cooke, can you point me to anything in your application where the union parties to this would have been able to predict and anticipated the evidence that was given? Particularly with respect whether there was an existing protocol, what seems to be the underlying cause of the industrial action. With respect to right of entry, is there anything in there that - - -
PN620
MR COOKE: No. Although what we would note, sir, is that from the evidence of Mr Hayford the existence of such a protocol has only been raised this afternoon in the discussions that the officials have had with Mr Hayford and Mr Sproule. This has not been raised until this point in time. We were unable to anticipate that that was the defence, such as it is, that they were seeking to raise, sir.
PN621
THE DEPUTY PRESIDENT: So, what you are saying is if that was a defence, they should have been ready for that defence and it was they who raised it?
PN622
MR COOKE: They are raising it as an alleged agreement, sir. They have had ample opportunity, if their contention is that such an agreement exists, to provide evidence to this Commission of such an agreement. Mr Hayford knows of no such agreement. And even in his discussions with me this morning, was not aware that they were going to contend that such an agreement exists. We find it very difficult to prove that an agreement we don't know about doesn't exist.
PN623
THE DEPUTY PRESIDENT: What do you have to say about that, Mr Edmonds and Mr Kucera?
PN624
MR EDMONDS: Yes, sir. With respect, sir, I was notified by Mr Saunders, my State President, sir, yesterday afternoon when he returned to our office after a meeting with Mr Cooke and others about other issues, sir, that don't relate to this - I was advised that John Holland at that time were seeking 127 orders against the AWU, sir. But it as not until quarter to 3 yesterday afternoon, sir, that the facts were received in our office notifying us of this particular dispute, sir, and attaching the application, sir. I only received the cover sheet and the first page of that application, sir. But I think the substantive issues are summarised on that first page, sir.
PN625
So, I don't take issue with the absence of the rest of those documents. But I would say, sir, that it was received in our office at quarter to 3, sir. I didn't get an opportunity to turn my attention to it until later on that afternoon, sir. I managed to briefly speak to Mr Davis who was on his way to Newman that afternoon, sir. He was in Newman overnight. And my efforts to speak to him this morning, sir, were a failure, as he was on his way back from Newman this morning to Port Hedland. And there is no mobile phone coverage between Newman and Port Hedland for a short distance outside those two towns.
PN626
So, I had a brief discussion with Mr Davis yesterday afternoon, sir, at which discussions he raised the issue of the agreement between the parties, between Mr Bianchini and himself, as to right of entry, sir. But I haven't had an opportunity to fully explore those issues. And there was certainly no opportunity to arrange for Mr Davis to be present today, at that late stage yesterday afternoon, sir.
PN627
THE DEPUTY PRESIDENT: Yes. Thank you. Anything anyone else wishes to raise either about this specific issue or otherwise wants to put on the record?
PN628
MR LLEWELLYN: Sir, there is. And as you are aware, and unfortunately, as you can probably gather from my state of dress, I wasn't intending to appear here today at all. But one of the issues that concerns me somewhat is that as I understand the submissions from John Holland, not only on this occasion but on previous occasions, and the line Mr Cooke seems to follow, is that in terms of my union, the only people we are entitled to represent on the job and are entitled to have as members are those people covered by the John Holland Product and Capacity Expansion Marine Works Certified Agreement. The difficulty I have is that the list of employees that Mr Cooke provides, (1), I don't know where any of them work, and which one of those, if any, are employed under our agreement.
PN629
I obviously have the ability to check to see if any of those persons are members of my organisation, as I am sure my friends have. But it raises an issue I have raised with Mr Cooke on a number of occasions before the Commission, and I raise it simply again. And it may be of some concern if those persons who Mr Cooke seeks to have orders against is not a member of the any of the three organisations that currently appear before you, then they are entitled to be served and appear or find agents to appear on their behalf. And my organisation, and I am sure my friends at the bar table with me, are not in the habit of representing persons who are not members of any of our organisations.
PN630
Now, if Mr Cooke wants to carry his argument that the only people that can be affected by the order of the AWU is those persons employed under the AWU Agreement, as is the position carried out on the project, then it may be that there is no-one on this project or no-one under our agreement that is actually a member. And, therefore, there is no ability to issue an order against us. Likewise, there may be employees there that are not members of any of the organisations appearing currently before you and natural justice would also then imply - and I am not sure whether each of these individuals has actually been served with the application and notice of hearing.
PN631
And I think, if what I grabbed out of my pigeon hole when I walked into the office and told her I was coming here, is correct there was actually a direction of the Commission that that be done. Now, if that has been done and those persons are not represented by virtue of not being members of any of the organisations, then they are entitled to be represented and entitled to appear and give and call evidence. Now, I am sure if they were served last night, they would have had difficulty getting on a flight to Perth this morning. But I would ask John Holland, at the very least, inform us as to which of those persons are alleged to work under our agreements so then I may make an assessment of whether we have any members affected or if I am in fact representing anybody at all.
PN632
Because if Mr Cooke's submission is correct, then it may be that I don't represent anybody or it may be that I have members employed in areas where John Holland say I am not entitled to go and speak to them because they are not covered by my union apparently. And I guess one of those issues - and I am happy to give evidence and if you want to carry on tonight I am happy to give evidence on those issues and, if you like, the dirty hands or come to the Commission with clean hands issue in relation to breaches of the Act both in this matter and the matter that was the result of a previous dispute to which I understood there was an agreement reached to settle it. Now, I don't know the detail of the agreement.
PN633
But I know the position was worked out up on the site that there hadn't been a blue over it since, as I understood. But, as I said, I can't give any evidence on the detail of the agreement because I just wasn't party to the talks. All I understood was that the application was because people had worked off the job and the application - I mean, on the face of it, as I am reading now and I might be able to assist Mr Cooke - I guess paragraph 7 in somewhat says that:
PN634
The right of entry on the Pace project is being managed in accordance with existing agreements of the Workplace Relations Act.
PN635
Now, I don't know whether he just confines that to the particular certified agreements or whether he confines that to all of the agreements of which it would appear that Mr Hayford is not aware of the agreements that were there prior to him. And that was his evidence.
PN636
THE DEPUTY PRESIDENT: Well, I am sure those issues have been duly noted by Mr Cooke. These proceedings are brought pursuant to 127 of the Act. It is conceded that there is industrial action happening. And a requirement of 127 and, in particular, 127(3) is that the Commission must hear and determine an application for an order as soon as practicable. However, in applying the provisions of that, parties do have a right to prepare for any defence of or claim that or assertion that an order should not issue. I note in the proceedings today that there was no adjournment sought in order to prepare for cross-examination and I consider that there has been, as far as practicable, a preparedness for the unions, party to this application, to put what it could in the manner it could as soon as it could in these proceedings.
PN637
That does not detract from their right to have a capacity to prepare in order to refute any evidence or any allegations that might be used either in support of the applications or, indeed, to prepare a defence and present evidence that would have an influence or could have influence on whether an order should issue. The character of the action is a matter that I need to have regard to. And the unions are quite entitled to present evidence and have the opportunity to do so of anything relating to the character of what the action is and the purpose of the action, which may or may not have an influence on whether, in the circumstances, an order should issue. I would add that this is not a matter about coverage.
PN638
It is not a matter about enforcement. It is not a matter about right of entry. It is not a matter about the application of the agreement. It is a matter about industrial action and whether that is occurring and whether an order should issue that it should not occur. I note further, as I have on previous occasions, that there are avenues for the underlying issues to be pursued without industrial action through section 99, through section 170LW if it is about the application of the agreements, or, if it is about right of entry, through 285G. Those avenues are available. So, I intend to adjourn these proceedings until tomorrow and expect that the unions, if they have any evidence, which they have indicated they have and want to call, that they call that evidence.
PN639
The logistics of that might be difficult. Nevertheless, we will endeavour to facilitate. And I would ask that the unions involved and the representatives here who have all indicated they will be available tomorrow as has Mr Cooke, to liaise with my Associate regarding the logistics of that. Finally, from the evidence I am conscious that there is a meeting of employees and the unions tomorrow morning. I would make a recommendation to the effect that there is a return to work; that that occur immediately tomorrow morning; and that any underlying issues at the basis of this dispute wish to be pursued by any party, and I don't direct that solely at the unions or the employees covered by the agreement, that there are facilities under the Act for those matters to be pursued and they should be pursued in that manner without the necessity for industrial action.
PN640
So, I would make a recommendation that there be a return to work tomorrow morning as soon as is possible. I will adjourn this matter on that basis and ask that you liaise with my Associate as to the logistics of that. Mr Llewellyn, do you want to add something?
PN641
MR LLEWELLYN: Yes, sir.
PN642
THE DEPUTY PRESIDENT: I see you raising - - -
PN643
MR LLEWELLYN: I am just wondering if we could follow up on the issue I asked with the persons being identified so I knew which people were actually covered by our agreement.
PN644
THE DEPUTY PRESIDENT: I am leaving that to you and John Holland now being aware of that to pursue - - -
PN645
MR LLEWELLYN: Thank you.
PN646
THE DEPUTY PRESIDENT: - - - prior to tomorrow. This matter is adjourned.
ADJOURNED UNTIL THURSDAY, 19 JUNE 2003 [4.35pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 REVISED SCHEDULE 1 PN17
JOHN RALPH HAYFORD, SWORN PN257
EXAMINATION-IN-CHIEF BY MR COOKE PN257
EXHIBIT #A2 DOCUMENT PN277
EXHIBIT #A3 NOTICE FROM MR ASPLIN TO MR HAYFORD PN287
EXHIBIT #A4 HANDWRITTEN DOCUMENT ON METAL WORKERS LETTERHEAD PN297
EXHIBIT #A5 COPY DOCUMENT TO MR WADE FROM MR HAYFORD PN308
EXHIBIT #A6 DOCUMENT TO MR ASPLIN FROM MR HAYFORD DATED 14/06/2003 PN318
EXHIBIT #A7 RECORDS RE LOST TIME INCURRED ON PROJECT PN360
EXHIBIT #A8 SCHEDULE OF UNION ACCESS TO JOHN HOLLAND CURRENT TO 18.6.03 PN374
CROSS-EXAMINATION BY MR KUCERA PN401
CROSS-EXAMINATION BY MR LLEWELLYN PN439
CROSS-EXAMINATION BY MR EDMONDS PN530
RE-EXAMINATION BY MR COOKE PN572
WITNESS WITHDREW PN598
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2003/2824.html