C2003/4352, Transcript of Proceedings [2003] AIRCTrans 3013 (16 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2003/4352

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Dexion Australia Pty Limited for an order
to stop or prevent industrial action

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

SYDNEY

THURSDAY, 3 JULY 2003

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

PN1

HIS HONOUR: I will indicate on the record the order I propose, it follows my relatively standard form. It is known as the Dexion (Australia) Pty Limited (Blacktown and Kings Park) Industrial Action Order 2003, it applies to the work and employment regulated by the agreement to which I have referred. The parties bound to the AMWU and Dexion, which is the applicant, the parties shall comply with the order, that includes both the employer and the employees bound. The direction as to industrial action to stop or not to occur is an unusual form, I will read it relatively fully and I do ask the court reporter that what I have said at this stage from when I started speaking if practicable be made available to the parties as early as possible, that section of transcript might be uplifted.

PN2

Clause 4 reads:

PN3

Subject to the conditions and directions set out in clause 7, an employee of the applicant under a duty to comply with this order shall stop engaging or threatening to engage in industrial action that is of a kind defined in clause 5 and shall not engage in or threaten to engage in any such industrial action in relation to the work to which this order applies.

PN4

4.2:

PN5

The AMWU by its officers, agents and employees must stop and must not recommence any such industrial action.

PN6

4.3:

PN7

Any action taken by the AMWU through the respective officers, agents, etcetera, aiding, abetting or counselling members to engage in any such industrial action and so on shall not occur where such action has occurred or does occur, it shall immediately stop.

PN8

4.4:

PN9

The applicant shall not take industrial action in response to protected action taken by the AMWU in relation to bargaining period 1400 of 2003 pending further order provided that the applicant may transfer an employee between shifts or from normal work station to meet a work requirement clause by any continuing ban on overtime provided that not less than eight working hours notice shall be given of the transfer required and provided that where as a result of a ban the applicant reasonably concludes that the effect of a ban is that an employee is not productively useful to a degree that justify a stand down without pay the company shall direct the employee to work as directed and in the event that the employee refuses the direction and maintains the ban the applicant shall give the relevant employee notice one shift in advance that it intends to stand the employee down without pay until he or she indicates that the work as directed shall be performed.

PN10

Clause 5:

PN11

For the purposes of this order industrial action means in respect of the employees of the applicant the failure or refusal by an employee to attend for work or to perform work as required by his or her contracted employment by a strike or stoppage not covered by a notice under section 170MO of the Act and by at least eight hours specific notice of the stoppage to the site production manager; or by a ban on a process or use of equipment that has not been notified to the production manager in writing by a delegate on behalf of the union prior to the ban coming into effect but excluding the ban on overtime and on work started or performed by employees not taking industrial action notified by the section 170MO notice dated 13 June 2003.

PN12

5.2 contains a relatively normal clause in respect of the AMWU, failure or the incitement or encourage of any employees to operate in breach of the ban.

PN13

The direction and conditions are:

PN14

(1) That the applicant and the AMWU as negotiating parties shall during 4 July 2003 confer and exchange written confirmation that certain terms of a proposed agreement are agreed in principle and their respective positions as to terms that are sought to be included in an agreement that are not yet agreed.

PN15

(2) Direction that a meeting of the employees to be subject to the proposed agreement shall be convened by the AMWU at a mutually convenient time to the applicant with the AMWU on 8 July, one hour of which shall be a paid meeting. The meeting shall consider and vote upon whether an agreement with terms as proposed below shall be either accepted or rejected subject to further negotiation on the basis that any resumption of protected industrial action shall be in conformity with this order.

PN16

The terms of the proposed agreement submitted to vote shall include at least those proposed by the applicant in the course of the hearing to include a 4.3 per cent per annum increase to existing rates over three years, a casual/labour hire employee conversion process to full-time employment based on two months probation for employees with at least three months casual service and one month probation for casual employees with not less than five months service as a casual and a protection of entitlements clause as agreed in principle in negotiations.

PN17

The remaining provisions of the order will conform with the standard approach.

PN18

The order shall come into effect from 10am on 8 July 2003 and shall remain in force until 25 July 2003 for further order. I reserve liberty to apply. I will publish the reasons for that decision as soon as practicable and the order will be published also as soon as practicable but prior certainly to the date of operation of coming into force. The Commission will adjourn on that basis, that leave is reserved to apply.

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