C2003/4400, Transcript of Proceedings [2003] AIRCTrans 3139 (22 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 3636

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/4400

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Auschar Operations Pty Ltd for an order
to stop or prevent industrial action at
Auschar's Swan Road or porters Road sites
in Morwell

MELBOURNE

10.42 AM, WEDNESDAY, 9 JULY 2003

Continued from 8.7.03

PN200

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dalton?

PN201

MR DALTON: Thank you, your Honour. I will give you a very brief update.

PN202

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN203

MR DALTON: My instructions are that the mass meeting took place at 8 o'clock this morning. Some time after that the employees of the contractors who have enterprise agreements in place resumed work, as did the employees of Aus Char. There remains the issue of van on work by Aus Char employees. That ban relating to aspect of the maintenance work that has been commenced by the two contractors, Huon Personnel and Kingston Engineering services. My clients made attempts to ascertain the status of that ban and will be in a position to report back on that situation shortly.

PN204

In relation to the employees Huon Personnel and Kingston Engineering Services, as recently as five minutes ago Mr Dalton was on the telephone with the local management on site and those employees are not back at work yet. They were given until 10 o'clock after which time management told them that they would be taken to be on strike from that point. I understand that the employees have raised submissions regarding protective clothing. These are matters of detail which I am in a position to call evidence on through Mr Dalton. It is our position that the industrial actions continue in relation to at least the employees of KES and Huon Personnel, so we press - - -

PN205

THE SENIOR DEPUTY PRESIDENT: We will know that in a few minutes time for sure, won't we?

PN206

MR DALTON: Well, I think so. The issue about protective clothing, as I say, is a matter that Mr Dalton can perhaps give direct evidence on.

PN207

THE SENIOR DEPUTY PRESIDENT: Yes.

PN208

MR DALTON: Given that he is here, I would prefer that it be done in that way.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes.

PN210

MR DALTON: Because I understand there will be some dispute over that issue.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes, your instructions don't extend to what happened at 10 o'clock as yet, do they, or not?

PN212

MR DALTON: Yes, but they haven't gone back to work.

PN213

THE SENIOR DEPUTY PRESIDENT: They didn't go back to work after 10 am.

PN214

MR DALTON: No, they haven't gone back to work but I understand that the position of, at least the AWU, would be that the position of the employees is that their return to work is conditional upon some health and safety issues being resolved.

PN215

THE SENIOR DEPUTY PRESIDENT: So terribly convenient, isn't it? Yes.

PN216

MR DALTON: Yes, that have been raised at this point and Mr Dalton is in a position to give direct evidence on that. So that is the initial report. I propose to call Mr Dalton.

PN217

THE SENIOR DEPUTY PRESIDENT: Yes, I might indicate that I have received a facsimile transmission of a witness statement of Mr Dalton's and I have read that, although I don't profess to have taken in every detail in that document.

PN218

MR DALTON: Thanks, your Honour.

PN219

THE SENIOR DEPUTY PRESIDENT: Have you served that on the union?

PN220

MR DALTON: That has been served on the officers of each of the unions.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes.

PN222

MR DALTON: So I am not sure whether you wanted a report back from the other unions, but my next step would be to call Mr Des Dalton.

PN223

THE SENIOR DEPUTY PRESIDENT: Yes, I think that is appropriate.

PN224

MR DALTON: Yes, your Honour.

PN225

THE SENIOR DEPUTY PRESIDENT: Unless you want to say something, Mr Addison?

PN226

MR ADDISON: Before you do that, your Honour. Now, it is true that the witness statement was served on the union. The witness statement at 25 to 8 last night on the union and, obviously I didn't get a hold of a copy until this morning. I have spoken to the organiser on three occasions this morning with regard to the matter, the latest communication I had with Mr Dodd was about five minutes ago as well. I understand that there is a resolution which has been passed at the mass meeting, that employees will return to work - all employees will return to work.

PN227

I understand that Mr Dodd has told the local Aus Char management that there are no bans and no limitations in place either from the Aus Char permanent workforce, or anybody else. There are three issues which need to be addressed on site, your Honour, two of which will not result in non-return; one which currently is affecting the return. The one that is affecting the return is this, your Honour: people have not been issued with overalls, boots, or a jacket.

PN228

These people are working on a major shutdown. I am informed by the organiser that some of the employees are on that job in runners, not safety boots, and that would cause an immediate risk to their health, or safety. I have spoken to Mr Dalton - I have indicated to Mr Dalton that should he issue goods, overalls and a jacket then employees will return to work immediately, and I put that to you, your Honour, on the record, that is the issue that is holding us apart. Mr Dalton has indicated that he is not prepared to issue a jacket. Now, your Honour, it is the middle of winter. These people are working in Morwell in the open and as such there is clearly, given the weather, you wouldn't want to be in town without a jacket during the course of today.

PN229

THE SENIOR DEPUTY PRESIDENT: The sun is shining vitally outside this window, Mr Addison.

PN230

MR ADDISON: The sun is shining but it is bitterly cold out there, your Honour, and it is certainly bitterly cold in Morwell.

PN231

MR DALTON: Don't they wear a jumper?

PN232

MR ADDISON: And we say that that is a risk to employees' health. Now, we say that there is no industrial action. The definition is section 4 is clear and the definition in section 4 excludes from the definition of industrial action, any action taken by employees because of the concern for their health, or safety. Clearly, that is the case. And if Mr Dalton is prepared to issue the health and safety equipment, people will return to work immediately.

PN233

THE SENIOR DEPUTY PRESIDENT: Yes.

PN234

MR ADDISON: There are two other issues on the site which have been raised. One is that the Kingston Engineering employees have not been paid for two weeks and that is clearly an issue that needs to be resolved, but we are happy to sit down and talk to the company with regard to that. The second issue is that employees of Huon Personnel are not, and have not been in receipt of any pay advice, any payslips, which is a breach of regulation 132, the Workplace Relations Act.

PN235

THE SENIOR DEPUTY PRESIDENT: Well, that is a matter for - - -

PN236

MR ADDISON: I understand these issues have been raised with Mr Dalton on at least one occasion by the local organiser.

PN237

THE SENIOR DEPUTY PRESIDENT: Well, aren't they matters for KES and HP rather than Aus Char?

PN238

MR ADDISON: Well, they certainly are, your Honour, they certainly are, but Mr Dalton also is in the loop, if you like. Huon Personnel are based in Wodonga, so the only way we can contact them is by the telephone.

PN239

THE SENIOR DEPUTY PRESIDENT: Have you tried?

PN240

MR ADDISON: I understand that Mr Dalton did assist in that - - -

PN241

THE SENIOR DEPUTY PRESIDENT: Has the union tried?

PN242

MR ADDISON: Yes, the union has rang Huon Personnel on three occasions.

PN243

THE SENIOR DEPUTY PRESIDENT: Anyway, let us not get diverted with those issues, Mr Addison, they are not going to prevent a return to work and they need to be dealt with, obviously.

PN244

MR ADDISON: They won't - they won't stop work returning. The only issue is the health and safety issue, your Honour.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes.

PN246

MR ADDISON: And we - I have made the offer to Mr Dalton: issue the gear. The boys will be back on the job in five minutes.

PN247

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN248

MR ADDISON: If the Commission pleases.

PN249

THE SENIOR DEPUTY PRESIDENT: Mr Dalton, do you want to try to deal with that issue and see if we can get the return to work without spending all day on a 127 application?

PN250

MR DALTON: Yes, well, I obviously would prefer that. I have got instructions from Mr Twigger because I asked him to make some calls on site in light of the issue that had been raised by Mr Addison. I am told that on induction, whenever someone comes to the site, one of the questions that is asked of them is whether they have got all of the relevant protective clothing, including glasses, overalls, boots, etcetera. Now, if they answer "no" to any of that they are given a ticket to then go and get the relevant gear.

PN251

Now, even this morning, Mr Twigger was told by local management that they have - just looking at the people in the brew room, the significant majority of them have all the relevant gear, yet they are still sitting in the brew room. This is also a matter that was raised with Mr Dalton last Friday, the issue of protective gear. Mr Dalton made it very clear that anyone who doesn't have particular items of required clothing, simply need to let him know and arrangements will be made for them to get the gear. Now, he didn't get asked by anyone to go and do that and it has only been raised this morning, so that is why we say this has just been further obfuscation.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes.

PN253

MR DALTON: And that is the cause of our concern.

PN254

MR ADDISON: Well, this trouble is easily resolved, your Honour. If I could make a phone call now to the local organiser - - -

PN255

THE SENIOR DEPUTY PRESIDENT: Yes?

PN256

MR ADDISON: - - - and ask said local organiser, the company has indicated to me that anybody that hasn't got the gear can go and get them. Send them to the store now and tell them to go back on the job, within 30 minutes we will know whether - - -

PN257

MR DALTON: That is just the people without the gear, I assume?

PN258

THE SENIOR DEPUTY PRESIDENT: Yes, the people without the gear, I take it.

PN259

MR DALTON: Everyone else can start work.

PN260

MR ADDISON: Well, people that need the gear, go to the stores now, they will get the gear and then they go back on the job.

PN261

THE SENIOR DEPUTY PRESIDENT: Yes, and the people - - -

PN262

MR ADDISON: If in 30 minutes they are not back on the job, your Honour, then it will be appropriate to proceed.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes, and the people who do have the job will not be going to the store seeking the re-issue of gear?

PN264

MR ADDISON: Well, if they have got the gear, they have the gear.

PN265

THE SENIOR DEPUTY PRESIDENT: That is right, yes.

PN266

MR ADDISON: This is a genuine health and safety issue, your Honour. I am not trying to turn it into anything else.

PN267

THE SENIOR DEPUTY PRESIDENT: I will give you the benefit of the doubt, Mr Addison. What I propose, gentlemen, is that that course be followed. It will delay the commencement of these proceedings perhaps; perhaps not - if it resolves the matter. If it doesn't resolve the matter the hearing will proceed and if it takes me till midnight tonight to finalise it we will sit until midnight tonight.

PN268

MR ADDISON: Certainly.

PN269

THE SENIOR DEPUTY PRESIDENT: So on that basis I will give you the time required, unless you want to say anything else, Mr Dalton?

PN270

MR DALTON: Well, we would expect those with protective gear to be starting work immediately. We have already lost a few hours this morning.

PN271

THE SENIOR DEPUTY PRESIDENT: Yes.

PN272

MR DALTON: And those who clearly don't have gear, we will make immediate arrangements for them to be provided with that.

PN273

THE SENIOR DEPUTY PRESIDENT: Yes, well, Mr Addison needs to make his phone call to issue that instruction. Very well, I will adjourn until 11.30 at which time I would like to be advised of the position. Thank you.

SHORT ADJOURNMENT [10.54am]

RESUMED [11.53am]

PN274

THE SENIOR DEPUTY PRESIDENT: Mr Dalton?

PN275

MR DALTON: Your Honour, no one has returned to work as yet, so from our point of view we are a bit disappointed about that.

PN276

THE SENIOR DEPUTY PRESIDENT: Yes.

PN277

MR DALTON: Lunch time is fast approaching so, really, I don't think that we can be - there is probably not much point in seeking to press the application until after lunch time because they may return after lunch time, in which case it may not be worth just pressing - I just think that if they do go back after lunch time - - -

PN278

THE SENIOR DEPUTY PRESIDENT: Yes; what time is lunch time, 12 o'clock?

PN279

MR ADDISON: 12 o'clock.

PN280

MR DALTON: Well, I think - - -

PN281

THE SENIOR DEPUTY PRESIDENT: Until?

PN282

MR ADDISON: 12.30.

PN283

THE SENIOR DEPUTY PRESIDENT: Well, we will take an early lunch and resume at 12.45.

PN284

MR DALTON: Fine.

PN285

THE SENIOR DEPUTY PRESIDENT: Will that be enough time for you to know what the position is, 12.45, or - - -

PN286

MR ADDISON: I would suggest 1 o'clock.

PN287

THE SENIOR DEPUTY PRESIDENT: 1 o'clock?

PN288

MR DALTON: 1 pm.

PN289

MR ADDISON: Your Honour, just so that there is no misapprehension - - -

PN290

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Addison?

PN291

MR ADDISON: I have spoken to the organiser on three occasions. As I understand it, it has been agreed on the site. The organiser has spoken to the two managers, a Mr Stringer and a Mr Eason and I understand that it is agreed between the officials and the management that an audit will be conducted. Those people who have got the gear will go back on the job; those people who haven't got the gear, the storemen from the plant will be sent to a supplier of gear, because they haven't got it on site, to pick up the appropriate gear. It will then be issued and those employees will go back on the job.

PN292

THE SENIOR DEPUTY PRESIDENT: Well, it does seem to be taking an inordinantly long time, Mr Addison. I would have thought - - -

PN293

MR ADDISON: Yes.

PN294

THE SENIOR DEPUTY PRESIDENT: I would have thought - - -

PN295

MR ADDISON: I am as frustrated by that as my friends on the other side of the bar table, your Honour.

PN296

THE SENIOR DEPUTY PRESIDENT: I would have thought that those who had the appropriate gear should have been back at work by now?

PN297

MR ADDISON: Yes.

PN298

THE SENIOR DEPUTY PRESIDENT: And if they are not back at work by 1 o'clock there will be no option but to proceed with this application, it seems to me.

PN299

MR ADDISON: That is right, your Honour.

PN300

THE SENIOR DEPUTY PRESIDENT: Yes, well, we will adjourn till 1 o'clock, thank you.

SHORT ADJOURNMENT [11.55am]

RESUMED [1.00 pm]

PN301

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Dalton?

PN302

MR DALTON: Thanks, your Honour. Sixteen of the 21 have returned to work. They are the 16 that have been kitted out fully today, in any event, so we are pleased that they have decided to come back to work following lunch time and I understand that the remaining five are just waiting to be kitted out on one, or more items of clothing and protective equipment, and that will happen quickly. I should state for the record that local management made it clear that jackets would not be supplied as a matter of course and the return to work was on the basis that eligibility for jackets would be in accordance with the normal company practice which is, if you have worked there for three months, or more, so if employees who are asking for jackets then that is a matter they need to take up with their respective employers.

PN303

THE SENIOR DEPUTY PRESIDENT: Yes.

PN304

MR DALTON: I think that is all I need to report at this stage, your Honour. In terms of the application we wouldn't be asking the Commission to deal with it today. We would, of course, seek leave to re-apply at short notice in the event that the return to normal work is not sustained.

PN305

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Dalton. Do you want to say anything, Mr Addison?

PN306

MR ADDISON: Only, your Honour, that what Mr Dalton has reported accords with my instructions that people have returned to work. I wasn't aware of the jacket issue but that is a matter we can deal with over the next day, or two. The Commission pleases.

PN307

THE SENIOR DEPUTY PRESIDENT: Yes, well, thank you, gentlemen. I always approach my task in section 127 matters as trying to facilitate a resumption of work, normal work, as quickly as possible whether it be by the issue of an order, or by other means. I am pleased to see that there has been a resumption of work. I will keep the file. I will keep it open and I will be available at very short notice should it become necessary, I hope not, to have the matter reactivated. I don't think I need say anything further than that and I am pleased that work will go ahead. On that basis we will adjourn.

ADJOURNED INDEFINITELY [1.06pm]