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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 WT0573
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
C2003/193
C2003/195
APPLICATIONS FOR AN ORDER TO STOP OR
PREVENT INDUSTRIAL ACTION
Applications under section 127(2) of the Act
by Monadelphous Engineering Associates Pty Ltd
for an order to stop or prevent industrial action
re the North West Shelf Phase 4 Project site on
the Burrup Peninsula
C2003/194
C2003/196
APPLICATIONS FOR AN ORDER TO STOP OR
PREVENT INDUSTRIAL ACTION
Applications under section 127(2) of the Act
by Brambles Australia Limited for an order to
stop or prevent industrial action re the North
West Shelf Phase 4 Project site on the Burrup
Peninsula
PERTH
10.04 AM, SATURDAY, 12 JULY 2003
PN1
THE DEPUTY PRESIDENT: These are four matters. I have listed them together, listed them today, given the requirements under 127(3) to hear and determine applications under this section as quickly as practicable. In order to comply with that practicability and the quickness required that they be listed this morning. Can I have appearances, please?
PN2
MR P. COOKE: I appear on behalf of Monadelphous Engineering Associates Pty Limited and Brambles Australia Limited.
PN3
MR L. EDMONDS: I appear on behalf of the Manufacturing Workers Union, sir.
PN4
MR T.P. DALY: I appear on behalf of the Australian Workers Union.
PN5
THE DEPUTY PRESIDENT: Yes, Mr Cooke?
PN6
MR COOKE: Thank you, sir. The applications before the Commission this morning, sir, are applications by Monadelphous Engineering Associates Pty Limited and Brambles Australia Limited for orders pursuant to section 127(1) of the Act, that employees of those two employers who are currently on strike on the North West Shelf Phase 4 Project be ordered to return to work. The two employers, sir, operate as a joint venture on the North West Shelf Project and have a contract providing a number of general services to the Project; warehousing, miscellaneous, mechanical and electrical works, some civil works, but importantly sir, the Brambles/Monadelphous Joint Venture has within their scope of their contract a requirement that they clean the site ablutions and toilets for almost all of the construction work force engaged on the Phase 4 Project.
PN7
There is a small group of employees employed by United KG Pty Limited in an area known as the TOT, which is Trunkline Onshore Terminal - there is an acronym for Trunkline Onshore Terminal - who - the MJV do not provide the site ablution, cleaning for. The balance of the work force, almost 15,000 employees, direct employees, there are more when you include the staff, are reliant upon BMJV to provide this service to the project. The failure of BMJV or the failure of the BMJV to provide this service to the project since Wednesday lunch time has led to the project ceasing all productive or almost all productive work in a construction sense from Thursday afternoon onwards, sir.
PN8
So Thursday afternoon from about 2.30 onwards was lost as was all of yesterday, as was the scheduled overtime to be worked today and at the moment, sir, the Project would be fearful of this dispute continuing into next week and idling or continuing to idle the largest engineering project under way in this State if not the country. The dispute commenced, sir, following a meeting of the BMJV work force that commenced about 11.30 am on Wednesday the 9th of July 2003. That meeting, we are advised, was attended by a Mr Tony Lovett, an organiser of the AFMEPKIU and the meeting determined to commence strike action over what could be best described as a number of domestic issues. And those domestic issues are set out at the dot points in paragraph 2 of each of the applications.
PN9
We don't intend to canvas those in any detail, sir, because the harsh reality is that none of those issues are of sufficient moment that require all 124 employees of the Brambles/Monadelphous Joint Venture not to be at work. And they are certainly not of sufficient moment that they require the entire site to be idle in terms of constructive work now for - going into its second full day or third day. If the draftsmen, the parliamentary draftsmen intended at 127 to address any particular situation, sir, we would submit this is exactly it. This is a gross over-reaction by a group of employees on a major construction project.
PN10
Their withdrawal of their labour is in turn affecting a significant group of contractors and their employees and until the dispute is resolved by a return to work and a return to normal duty by the BMJV employees, then the impact of the strike is going to be ongoing and it is significantly greater than simply the direct loss of production of 124 people not being at work. To that extent, sir, we have notified yesterday the Commission of the disputes and sought orders pursuant to section 127 of the Act. There was a meeting of the striking employees, I'm advised, at 7 am yesterday morning but that meeting, I'm advised, resolved only to continue their strike action and to meet again at 7 am on Monday morning.
PN11
Now that in itself, sir, is significant because the rest of the site work force is scheduled to commence work on, as they do, Monday to Saturday at 6.30 in the morning, so that at 6.30 on Monday morning, if the site ablutions have still not been cleaned, then there is the potential for further industrial action or further impact on the progress of construction on the site, irrespective of whether or not the BMJV work force return at some time after 7. And of course there is no, absolutely no guarantee of that happening. The impact of the strike is such, sir, that United KG, who have some 500 people on the project engaged on mechanical construction work, commenced strike action at about 2 o'clock on Thursday, withdrew themselves from the site.
PN12
They are due to meet, we are advised, at 7 am on Monday morning as well, but the reason, I am advised, they withdrew their labour from the site was over the state of the ablutions or concerns over the state of the ablutions that they were being required to use in their work areas.
PN13
THE DEPUTY PRESIDENT: Sorry, when was that?
PN14
MR COOKE: About 2 pm, approximately 2 pm on Thursday, sir.
PN15
THE DEPUTY PRESIDENT: Yes.
PN16
MR COOKE: CBI Constructors, sir, who have some 600 employees on the site, along with a number of other contractors, on Thursday advised their work forces at 2.30 that they would be dismissing them from work that day and paying them until 4 o'clock in order to alleviate potential escalation of the dispute involving their work forces. And similarly, yesterday morning, CBI Constructors, Downer R.M. - Ralph M. Lee, the major electrical contractor and other contractors - one needn't go through them in laborious detail but employers of labour, significant employers of labour on the site, sir, as I said, in the case of CBI employing some 600 construction workers, again advised their employees that they would be dismissing them from work yesterday and that they would be paying them their 8 ordinary hours that they have a contractual entitlement to receive.
PN17
They would be removing any overtime yesterday afternoon and removing the requirement to work overtime today. So the other employers on the site, sir, have taken all reasonable steps to prevent escalation of the dispute. The employers could have, had they so desired, directed some of their employees to go and clean the ablutions that the BMJV have not cleaned since Wednesday morning. The employers at this point in time being aware that BMJV were seeking appropriate orders from this Commission, have not sought to escalate the dispute by asking or requiring their employees to clean the ablutions, but that is not a situation that we can permit to go on ad infinitum, sir.
PN18
It is not a recipe for a long-term resolution of this matter. The only possible long-term resolution of this matter involves the Brambles/Monadelphous Joint Venture work force returning to work. They have failed to do so of their own volition, therefore the employers, both Brambles and Monadelphous, have brought the matter to the Commission and sought orders in the terms attached to the schedules. We would say, sir, that given the impact of the dispute, that we appreciate the prompt listing of the matter by the Commission. As I said, the work in effect involves what could be seen as essential services, at least by part of the work force, and the impact of the disputation is certainly ongoing at this point in time.
PN19
We would propose, sir, following - that concludes what we would see as an opening. We would propose to now call evidence from Peter Kelly who is the employee relations manager for the joint venture, if it please the Commission.
PN20
THE DEPUTY PRESIDENT: Yes. Just before you do that, Mr Cooke. Mr Edmonds and Mr Daly, is it conceded or disputed that industrial action is occurring?
PN21
MR EDMONDS: Yes, sir, it is certainly disputed, sir.
PN22
THE DEPUTY PRESIDENT: It is disputed that there is industrial action occurring?
PN23
MR EDMONDS: It is certainly our contention, sir, that it can't be characterised as industrial action as such, sir. It is our contention that the only issue in dispute at the moment is the access and egress - access to and egress from the workplace, sir. We would submit, sir, that that is in actual fact a safety issue, sir. There is some 300 or in excess of 300 vehicles, sir, that are leaving the workplace at the end of the working day, sir. All leaving the workplace on a single carriage road, sir, and heading back into Karratha at some 100 - 100 to 110 kilometres per hour. It is quite a dangerous situation, sir.
PN24
The proposition that has been put forward by the union to resolve this issue, with the support of the employees of the joint venture, sir, is to have those employees start work 15 minutes early, sir, and finish work also 15 minutes early. Now, the particular work force involved or employed by the applicants today, sir, tend to be local workers, sir, because it tends to be the less skilled labour on the workplace, sir, so they tend to be local people and they tend to use their own vehicles. And it is our understanding, sir, it is certainly my instructions that the traffic congestion could be reduced by close to a third, sir, if this work force was able to start work and finish work 15 minutes early. So in those circumstances, sir, we would certainly contend that this is in actual fact a safety issue, sir, and it is an industrial action as such.
PN25
THE DEPUTY PRESIDENT: So it is a safety issue but not industrial action?
PN26
MR EDMONDS: Yes, sir.
PN27
THE DEPUTY PRESIDENT: That is your contention.
PN28
MR EDMONDS: And certainly, sir, with respect to the work force employed by UKG, the comments of Mr Cooke was that those workers were engaged in strike action, I believe he said in his opening, from 2 pm on Thursday. That is simply not true, sir. The ablution blocks are in such a state, sir - - -
PN29
THE DEPUTY PRESIDENT: Well, that is not a matter before me. It might be an issue that has some implications of the extent of the damage.
PN30
MR EDMONDS: Certainly, sir.
PN31
THE DEPUTY PRESIDENT: But the issues before me don't relate to United KG.
PN32
MR EDMONDS: Yes, sir. Thank you, sir.
PN33
THE DEPUTY PRESIDENT: Okay. On that basis, Mr Daly, do you wish to add anything to that?
PN34
MR DALY: Not at this stage, sir, other than that my understanding is this issue of the car-parking safety issue has in fact been raised quite some time ago and has been the subject of quite some discussion/negotiation to the point where, as I understood, agreement was reached on the matter and subsequently somehow or other, that agreement seems to have been overturned.
PN35
THE DEPUTY PRESIDENT: Thank you, Mr Daly. Mr Cooke, you have to establish that it is industrial action, by the sound of it?
PN36
MR COOKE: Well, the way we do that, sir, is through the evidence of Mr Kelly, who is engaged on the site and he can give evidence as to the nature of the action. But plainly this is not a group of employees who have withdrawn from the particular work area and made themselves available for alternative duties. This is a group of employees who have gone on strike and remain on strike. When propositions were put to the employees to get the cleaners back to work and surely there is something like eight or ten of them are cleaners, and they would be working the same hours they have worked since January of last year. That proposition was rejected.
PN37
So the idea that - the union's contention is that there is 124 people who have some imminent concern over their personal health and safety, that will be, I guess, their evidence and we will deal with that, sir, but our case is that it is industrial action and we will seek to establish that through the evidence of Mr Kelly.
PN38
THE DEPUTY PRESIDENT: Yes, well, you can proceed to call your evidence.
PN39
PN40
MR COOKE: Mr Kelly, could you state for the benefit of the Commission your full name and business address, please?---Peter James Kelly, care of BMJV on the Phase 4 Project on the Burrup Peninsula.
PN41
And your occupation with your employer?---Employee relations manager.
PN42
And you look after the work force - sorry, the work of BMJV, they operate as a joint venture?---They do.
PN43
Do they have an integrated management group?---They do.
PN44
In your role as employee relations manager, you deal with employees of both Brambles and Monadelphous?---I do.
PN45
Irrespective of whose payroll they're on?---That is correct.
PN46
How many people do the joint venture employ on the North West Shelf Project?---Is that wages and staff?
PN47
Well, wages initially?---Wages, 124 at the moment.
PN48
And staff?---Approximately 36.
PN49
Now, what is the nature of the work being undertaken by the Brambles/Monadelphous Joint Venture on the project?---We have the general service contract which provide a diverse range of services to the project. It includes waste management, cleaning, materials handling, logistics, warehousing and also mechanical engineering support.
**** PETER JAMES KELLY XN MR COOKE
PN50
Okay. Now, does the work, does the scope of your contract include cleaning site ablutions?---It does.
PN51
And those site ablutions are those used by the construction work force of other contractors?---Yes.
PN52
Do you clean every toilet on the site?---No. There is some facilities down at the TOT that are cleaned through arrangements with UKG.
PN53
Okay. But in terms of the majority of the site ablutions, who would - you are responsible - BMJV is responsible for those?---Absolutely. The significant majority of those ablutions is cleaned by BMJV.
PN54
Okay. Now, Brambles Australia Limited have certified agreements in place with the AWU and the AFMEPKIU to the best of your knowledge?---They do.
PN55
And Monadelphous Engineering Associates have agreements in place with the AWU and the AFMEPKIU to the best of your knowledge?---They do.
PN56
And are you aware if those agreements are currently within their stated term?---Yes. They are.
PN57
You believe that they're within their stated term?---Yes.
PN58
And do the agreements have within them procedures for the resolution of disputes?---They do.
PN59
Are you aware of how long BMJV have been operating on this project?---Since January 2002.
**** PETER JAMES KELLY XN MR COOKE
PN60
And at what time do your people commence work in the morning?---6.30.
PN61
And that is Monday to Saturday?---That is correct.
PN62
And what time do they conclude work?---Monday to Thursday they conclude work at 5 o'clock and Friday they conclude work at 4 o'clock. On Saturday they conclude work at 11.30.
PN63
Now, the issues that were - sorry, let us just perhaps go back. Under the terms of your role, as part of your role, you have become involved in issues pertaining to employee relations?---Yes.
PN64
Do you recall the issues that are subject to this dispute being raised with you prior to Wednesday of this week?---Yes.
PN65
When were they first raised with you, by your recollection?---Well, the first - one of the issues that became a number of issues - along with other issues was first raised with me on Tuesday the 1st of the 7th by the AMWU shop steward, Paul Grublich, who came to my office and advised me that there was a problem with overcrowding in the work - workshop area crib huts. I acknowledged this issue and advised that we had been caught short with the fact that we just had approximately 45 BGC people transferred on very short notice and we were now looking at obtaining extra crib - crib hut facilities to accommodate this.
PN66
Okay. Subsequent to 1 July, did you have any - did BMJV have any other discussions with their work force regarding any issues that might be read in them?---Well, one of the - one of the issues was tax on skip that was also raised by Paul Grublich. Before that night, I had advised Paul that we were seeking advice on that but as it stands, that the current advice we had from the tax office that the skip payment couldn't be treated as an eligible termination payment and we were obliged to tax it at the higher rate. Paul took that on board and he understood our position. But we said we would continue to - to follow that issue up because we were appreciative of the - of a concern.
**** PETER JAMES KELLY XN MR COOKE
PN67
Now, the BMJV employees had a meeting at about 11.30 on Wednesday 7 July?---Yes, they did.
PN68
When were you advised of the union's intention to hold such a meeting?---Wednesday the 7th?
PN69
Sorry, Wednesday the 9th?---Sorry, yeah, Wednesday the 9th. They had a meeting on Monday the 7th. There was an authorised unpaid meeting for half an hour, starting at 11.30. I had discussions with Tony Lovett and Robert Grieves following that meeting.
PN70
Just to stop you there. Who do you understand Mr Lovett to be?---Oh, Mr Lovett is the Metalworker organiser in the area responsible for the project.
PN71
Okay. And Mr Grieves, who is Mr Grieves?---Mr Grieves is a deputy shop steward who was there in the absence of our shop steward, Mr Paul Grublich, who was away ill at the time?---Okay. And following that meeting on Monday the 7th, did you have any discussions with Mr Lovett and Mr Grieves?---Yes.
PN72
And what were the nature of those discussions?---Oh, the discussions were to go through the issues that were raised on the Monday meeting.
PN73
And what were those issues?---The issues was about the crib hut accommodation.
PN74
THE DEPUTY PRESIDENT: You're looking at some notes or something, are you?---Yes. Yes.
PN75
Do you have to look at those notes or can you recall without looking at them?---Oh, I can try and recall, I just wanted to make sure we covered everything.
**** PETER JAMES KELLY XN MR COOKE
PN76
Yes?---We've had a number of conversations over the last week. There was tax on skip. There was the - again, there was the crib hut situation. There was discussion on proposals put by Mr Lovett regarding - addressing the traffic congestion problem. I will need to refer back because I think I've - oh no, there was a - sorry.
PN77
MR EDMONDS: Excuse me, sir. He is standing there with his notes, sir. If he can't recall from his memory, sir, then you know.
PN78
THE DEPUTY PRESIDENT: But he had a go at recalling from his memory and - - -
PN79
MR EDMONDS: I mean, I certainly - - -
PN80
THE DEPUTY PRESIDENT: Can I finish, Mr Edmonds?
PN81
MR EDMONDS: Sorry, sir.
PN82
THE DEPUTY PRESIDENT: And I think it is available to him to then supplement his memory from notes, providing you've got a copy of those notes. Of course, the weight that I attach to that, Mr Edmonds, will be affected by how much he does refer to those notes.
PN83
MR EDMONDS: Sorry, sir. I was about to raise a second issue, sir, which is those notes haven't been provided to myself or to my colleagues, sir.
PN84
THE DEPUTY PRESIDENT: Well, Mr Cooke, if you're going to have notes referred to, then it should be provided to the representatives for the other parties.
**** PETER JAMES KELLY XN MR COOKE
PN85
MR COOKE: I'm quite happy to do that, sir.
PN86
THE DEPUTY PRESIDENT: Yes.
PN87
MR COOKE: Those notes have been provided, sir.
PN88
THE DEPUTY PRESIDENT: Yes. Thank you?---One of the other issues was that there was a proposal put by Mr Lovett to finish work 15 minutes early Monday to Friday on an unpaid basis and then work an extra hour on Saturday from 11.30 to 12.30 to make up the time as a proposal to address the traffic congestion problem.
PN89
MR COOKE: So there were in fact two proposals. One was to start later and work an extra hour on Saturday. Another proposal was to start earlier and finish earlier?---Yes, that is correct. Sorry, that is correct. Tony, he initially focused on that first proposal and then he said: Well, as an alternative, would we consider starting and finishing 15 minutes earlier.
PN90
Now in terms of - you normally start at 6.30 in the morning?---Yes.
PN91
At this time of the year, has the sun arisen, at the moment in Karratha at that time of the morning?---No.
PN92
So to start 15 minutes earlier, you would be starting even further in - in darkness?---It is - it is dark at a quarter past 6 but people would be on the job, doing their pre-starts. Pre-start meeting, sorry.
PN93
But there were two proposals and one was to start later and make it up - make up an hour on Saturday?---No. That was to finish 15 minutes early.
**** PETER JAMES KELLY XN MR COOKE
PN94
Sorry, yes?---On an unpaid basis, then work an hour, an extra hour on Saturday.
PN95
Saturday. Okay. Now where did that discussion - what was the outcome of that discussion or was that discussion concluded?---Well, I advised Mr Lovett that I simply couldn't answer those right there and then. I would need to go away and have discussions with other people and that I would come back to him.
PN96
Were there any other issues raised following the meeting on Monday this week?---Apart from the crib huts and the traffic and the skip.
PN97
THE DEPUTY PRESIDENT: Mr Kelly, can you remember without looking at your notes?---Well, I'm trying to. I think there was another issue but as I say, we've - since last Thursday we've - we've had a lot of discussions and I'm just trying to recall.
PN98
Yes?---Yes, yes. The other issue was other contractors doing BMJV work.
PN99
MR COOKE: And what was the nature of that issue?---Well, Mr Lovett claimed that our lower key contractors were doing work that they thought should be done by BMJV people. He especially made - focused on BGC.
PN100
And what was your response to that issue raised by Mr Lovett?---Well, my response was that it is necessary for us to have lower key contractors because of the nature of our contract. We can be required to perform all sorts of - all sorts of work and we simply don't have the resources or can't man up to accommodate each situation as it arises and that - the BGC - our BMJV people obviously have their work to do. If we were to pull them away from doing that work, then we would be not fulfilling our requirements to the client and that the reason we had contractors or subcontractors in there was to handle these other situations.
**** PETER JAMES KELLY XN MR COOKE
PN101
Now, following the discussions with Mr Lovett on Monday 7 July, did you have any discussions with Mr Lovett prior to the meeting on Wednesday 9 July, meeting of your work force on 9 July? Or specifically, did you have any discussions with him that morning, prior to him going off to meet more people?---Oh, sorry. On Wednesday the 9th?
PN102
Yes?---Yes, at - at approximately 10.30. But I need to clarify that out of the Monday's meeting, there was no arrangement for an authorised unpaid meeting for Wednesday. The meeting concluded on the basis that Tony would - sorry, Mr Lovett would call me on Tuesday, the next day, and advise me of a time that we could get together to have further discussions, to allow me to go and seek more information to address the issues, right, and one of the particular issues was the claim of other contractors doing our work even though I did give them a response. I said I wanted to go and find out more information about exactly what the nature of the work was that was being performed by other people, so we could be better informed to address the issues. Tony - sorry, Mr Lovett - did say that he would call me on - on Tuesday to make arrangements to come in and talk to me but at no stage was there an agreement for another authorised unpaid meeting. Mr Lovett indicated that he thought maybe the workers might want another meeting and I said: well, before we go there, we need to have further discussions on Wednesday morning and we will see how - what transpires from that. Mr Lovett didn't call me on Tuesday and in fact, I had - on Wednesday morning we had some feedback from the - from the floor that there was - there was going to be a meeting. I then rang Mr Lovett and he told me that he would be at the gate at 10.30 and that they would be wanting an approved unpaid meeting and if we didn't approve it, there would be a meeting outside the gate in any event.
PN103
Did Mr Lovett indicate to you at - this was a telephone conversation you had with Mr Lovett on Wednesday morning?---Yes.
PN104
Following your advice that, or your intelligence from your work force that there was going to be a meeting anyway?---Yes.
**** PETER JAMES KELLY XN MR COOKE
PN105
Did Mr Lovett, over the phone, indicate to you what the issues of concern were?---No.
PN106
Okay?---He - the - - -
PN107
Did you - - -?---The phone call was very - very short.
PN108
Okay. Did meet with Mr Lovett at 10.30 on Wednesday the 9th of July?---Yes.
PN109
And who else attended the meeting?---Be - because Mr Grubelich, the - the shop steward and Mr Greaves, the deputy shop steward, were absent from site a nominated spokesperson from the - from the group, called Pat Ford, attended the meeting with - with Lovett.
PN110
Mr Ford is an employee of - - -?---BMJ.
PN111
One of the partners?---Is one of BMJV personnel, yes.
PN112
Yes. And what discussions took place with Mr Lovett prior to the meeting of your employees on Wednesday morning?---Well we went through - went through the issues again.
PN113
And can you, just for the sake of the record, specify those issues?---Well with - with the crib hut we were able confirm to him that we had acquired another crib hut and we believed that that would - would resolve that issue. Mr Lovett accepted that but just asked us to be mindful that - that we needed to keep an eye on that because we didn't - he wasn't sure whether one extra crib hut may - may satisfy all the needs. The - the tax on skip, Mt Lovett either - he did it previously on the Monday or even at that morning, had advised that the metal workers and the CCI were jointly seeking advice on that same issue. Mr
**** PETER JAMES KELLY XN MR COOKE
Lovett was also advised that we - that Brambles and Monadelphous had sought the advice from Freehills Solicitors and my understanding, Freehills has or is going to, make an application to the Australian Taxation Office seeking a ruling because Freehills is under the opinion that the - the skip payment could be treated as an eligible termination payment.
PN114
Okay. Did the issue regarding BGC allegedly doing BMJV work get discussed?---It did.
PN115
In what sense did that get discussed?---Well, in as much as I went away and sought information about what exactly what BGC was doing. At that meeting also, I asked could they give me, you know, more - more specific information about where there concerns were, like, what - what types of work were being done and we went through that. And I said to Mr Lovett: okay, that gives me more to work on, I'd been given information back from people I've spoken to that BGC do predominantly Civils work and that we didn't see that the - where there was a real concern. I asked Mr Lovett that I - I said to Mr Lovett I was prepared to approve a - another authorised unpaid meeting on Friday morning and that I'd asked him to impress on the - on the workers at the - on the meeting that was going to be held at 11.30 on that day, that BMJV management has a very good trek - track record in dealing with issues and working through issues with our people; we have a good rapport with our people and we will - we would ask that they would accept that in good faith and accept that we are genuinely working through these issues to try and resolve them.
PN116
Okay. Was there discussion, sorry, by way of background, are you aware that one of the joint venture partners, sorry - are you aware that there is a contract out, or a tender currently out from KJV.
PN117
THE DEPUTY PRESIDENT: Oh, yes.
PN118
MR COOKE: For mechanical commissioning work on the fourth train?---That - that was an issue, sorry, that - thank you for reminding me, that that was an issue that was also raised on Monday. Well, that Mr Lovett asked that in the event that BMJV won the commissioning contract could be BMJV personnel who had the appropriate skills be given first option of employment in that commissioning team.
**** PETER JAMES KELLY XN MR COOKE
PN119
What response, if any, was given to that claim?---I said I would - I couldn't answer that right there and then I would have to go and talk to - talk to people about that.
PN120
Did that issue get raised again on Wednesday the 9th?---Yes. Yes, it did and I was in a position - I was in a position then to advise Mr Lovett that current BMJV employees would be given first preference for work on the commissioning team if they had the appropriate skills and qualifications.
PN121
Now, was the discussion regarding altering start and finish times to deal with traffic concerns discussed as well, that proposal discussed on Wednesday morning?---Yes.
PN122
In what sense, how was it discussed?---It was discussed that I responded to the proposals and I'm a - my apology that these - these notes won't reflect the second part that I responded, I'll just read it through - I've read through them before and I - I failed to admit it, the response on the early start, early finish but in regards to the knocking off 15 minutes early unpaid and working the - the extra time on Saturday, I advised Mr Lovett that - that that had some problems with it, namely that we couldn't - there would be no guarantee given that that was overtime, that people would work those hours to ensure that we met our contractual obligations of 54 hours. Also that there - it would causing problems with the messing arrangements at the camp - at both camps because lunch on Saturdays only goes from 12.00 till 1.00 and them knocking off at 12.30 would probably mean that employees would find it very difficult to get back to the camp and - and have lunch on time. And also there would need to be - there was considerations for our staff who - who would normally knock off at 11.30, other than for supervisors if you were working overtime, of course, and that they would be effected. They would have to work back an extra hour and that that - we had to take that into consideration also. In regards - - -
PN123
Now - - -?---Sorry.
**** PETER JAMES KELLY XN MR COOKE
PN124
Sorry, continue?---In regards to the second option of the 15 minutes - starting 15 minutes earlier and knocking off 15 minutes early, I advised that we didn't believe that was appropriate at the moment because of the - the darkness at that time and we believed that that had potential safety ramifications. And that we did not see that as appropriate to do that.
PN125
Now, currently BMJV have about 124 employees, construction employees, on the site?---Yes.
PN126
Do BMJV anticipate at some point having to retrench people as the project runs down?---We've already - we've already put our - our people on notice that probably over the next 6 weeks we will be looking to demobilise - say approximately 30 people.
PN127
Is it possible that the issues that all of a sudden then come up regarding BGC allegedly doing BMJV work or people wanting first preference should Monadelphous pick up commissioning work, then really perhaps relate to this concern over retrenchments?---Oh, well you have to say that there is an association because up until such times we announce that we would have to start commencing demobilisation, it's not been an issue; not in my time I've been there and I've been there approximately 8 months, which it's never been brought to my attention and I think it's a fair assumption that there - because of the anxiety and the concern that - that people would naturally have about being demobilised, that - that this issue has arisen.
PN128
Well those two issues then start coming up?---Yes.
PN129
Now, you said on the Wednesday morning you sought Mr Lovett to reschedule his proposed meeting for later that day?---Oh, well I knew I couldn't stop the meeting. He told me it was going ahead - either it was outside the gate or inside the gate but they were having a meeting. What I asked him to do was to ensure that our people were - clearly understood that we were working through the issues, there was evidence that we were working through the issues and
**** PETER JAMES KELLY XN MR COOKE
we'd resolved a number of them and I was confident that we could resolve all the issues between us as long as we - we continued in the - in the good faith way that we were. And that I would approve another authorised unpaid meeting on Friday where at, hopefully, the report back would be that we - we've resolved the issues to everybody's satisfaction.
PN130
Okay. And your employees then went off to a meeting with Mr Lovett?---They did at 11.30. That was an approved - approved unpaid meeting.
PN131
Okay. And did you get any report back from that - when did that meeting conclude?---Oh, approximately about 12.05.
PN132
What was the outcome of the meeting, did your work force return to work?---No, I - I was advised by Mr Lovett that they had withdrawn their labour and they would have another meeting at - on Friday morning at 7.00 am in the top carpark.
PN133
Now, 7.00 am, that's half an hour after their normal start time?---That's correct.
PN134
Did you have a formal report back meeting with Mr Lovett, on the Wednesday after the workers had gone home, after your employees had gone home?---Yes.
PN135
And what issues did Mr Lovett advise you were the reasons for the dispute?---The two outstanding issues were BGC and other contractors doing BMJV work and the two proposals of early start, early finish or early start early finish and - and the proposal to finish early and work the extra hour on Saturday.
PN136
Did the issue of Monadelphous picking up the commissioning work get a mention at that point?---Oh, only to review the fact that it - that it had been resolved. That was no longer an issue from - from our discussions.
**** PETER JAMES KELLY XN MR COOKE
PN137
So what response did the BMJV management give to Mr Lovett following that meeting regarding the BGC people allegedly doing BMJV work?---Very much along the lines that I'd already given the response, that we needed them to appreciate that - of how we were set up. But we did go a bit further. We said that we were quite prepared to, what we call, mix and match our - using our workers in - in with contractors to do - to do work but we had to be mindful. It couldn't be detrimental to other work but we would also have prior discussions with the relevant work - work groups on how we could facilitate this. Mr Lovett indicated that that would - would seem to be a reasonable approach at that stage. Now, in regard to the early - the early - - -
PN138
In regard - - -?---Sorry?
PN139
- - - to the changing of working hours, was there any discussion of that?---Yes. We had - we'd advised Mr Lovett that BMJV had taken a decision that we would facilitate that and we - we were going to advise KJV of our intention to implement the early start, early finish proposal. And that we would assure KJV that we - we would manage that.
PN140
And that was all the issues that was discussed at that meeting following the strike commencing? Did you have any discussions with Mr Lovett the following day, Thursday 10 July?---Yes.
PN141
What time was the meeting?---I'm - sorry, I'll need to - sorry, it was 7.00 am in the morning, that's right.
PN142
And who attended the meeting?---There was Jim Cavanagh, who is the BMJV Project Manager, myself, David Gray who is the General Manager with Monadelphous, responsible for Monadelphous part of this contract. Colin Saunders from the Metal Workers and Tony Lovett.
**** PETER JAMES KELLY XN MR COOKE
PN143
Okay. And what was discussed at that meeting, what were the issues discussed at that meeting?---Well, simply we put our position we were very disappointed with the action that was taken, we believed it was totally unnecessary and that that - given that the issues we were able to work through and resolve to date and - and that we needed people back to work. We also spoke about the concern now of the cleaners, right, that we had what we thought was a - an undertaking from the AWU to provide essential services. And that we need those essential services in because we could see that this had potential to escalate if we weren't' able to provide clean ablution facilities for all the - all the workers on site.
PN144
And did either Mr Saunders or Mr Lovett give you a response on your request to facilitate getting the cleaners back to work?---Yes. Yes, they understood the concern and at that meeting they indicated that they also didn't want that to happen, they didn't want this situation to escalate. Mr Lovett phoned the nominated spokesperson for the cleaners. He left the room to do that, by the way. My understanding, with the view to advise that nominated spokesperson that there would be - that they would be - support for them to come in and do that. My understanding that - and we also advised both Colin Saunders and Tony Lovett that on a previous occasion when the cleaners did come in and provide essential services, they were what they believed deemed victimised by other workers for doing so.
PN145
Other workers of yours or other workers generally?---Other - oh, both. Both of ours and - and other contractors, they were - they were told in no uncertain terms that they - that their behaviour was - wasn't right and they - they copped a fair amount of flack for that. And - and we were aware that - that unless the - the unions and the workers supported them coming in and doing essential services they would probably have - they would probably be very reluctant to do so because they didn't want to go through that again. After Mr Lovett made the phone call, he came back and advised that Nola had confirmed our concerns about behaviours from other workers should they come back and provide this service. We were advised by Mr Saunders and Mr Lovett that - at the Friday morning meeting they would - they would put a proposal that the workers support the essential services and allow the cleaners to come back in.
**** PETER JAMES KELLY XN MR COOKE
PN146
Okay. At this meeting on the Thursday morning at 7.00 am with Mr Lovett and Mr Saunders, were there other industrial issues discussed?---Yeah, we - we reviewed the issues like - like the tax on skip again, just - they inquired as to had we heard any - any progress about that. We said we understood that Freehills believed that on date of the ATO receiving application we should have something back in about 14 days. I - Mr Saunders raised an interesting issue. He said that he had a copy of a document from Kellogg that provided advice that the tax on skip was an eligible termination payment and we asked if we could get a copy of that because we weren't aware of that document.
PN147
Was the commission in contract discussed?---Yes. Yes, there was a point of clarification there. Personally, I - I was under the belief on information that I received that the commissioning contract was - was a Monadelphous bid. I had since found out that - that in fact it was a BMJV bid but I made the point that I didn't see that that was - had much relevance. The key issue of the concern was whether or not BMJV people would get first preference of employment on that commissioning team depending on skills and qualifications. So, that was one point of clarification. But my understanding of that, that's no - that is not an issue.
PN148
Okay. But it was discussed again?---Yes.
PN149
When did the meeting conclude - how did the meeting conclude?---The meeting concluded that Mr Saunders and Mr Lovett advised that - I think they had to go to the gate to meet UKG and CBI stewards to discuss the possibility of UKG and CBI peggies cleaning the ablution blocks down there to circumvent a potential safety problem.
PN150
Okay. Was there an agreement to meet further?---Yes. There was an agreement that I would - that - sorry, that Mr Saunders would ring me because he had to, I think, meet up with Mr Anderton from the AWU and have discussions about the dispute and that he would come back to me and let me know when - when they were ready to come back and talk to us. Again that day - - -
**** PETER JAMES KELLY XN MR COOKE
PN151
Did you meet later in the day with Mr Lovett and Mr Anderton?---Yes, we did. Yeah, at about half-past-11 that day.
PN152
And what was discussed at that meeting?---What was discussed at that meeting was that we were advised that the UKG and CBI peggies wouldn't - wouldn't perform the cleaning work. We again discussed essential services and Mr Anderton indicated that - well, indicated that, yes, the - he acknowledged that we had had discussions regarding essential services, that we had a - an arrangement but he made the point that at the end of the day, really, it was up to the - the cleaners to make a decision as to whether or not they would do that and that he - he would not be directing them to do that. But Mr Lovett and Mr Anderton gave us an undertaking that at the meeting the next day they would look to put recommendations that would resolve the essential service situation for the moment and for the future and to clearly point out to all workers that the intimidation of the cleaners will not be tolerated in any way, shape or form.
PN153
Now, from your understanding, did your project manager and BMJV management have some belief that there an agreement with the AWU to provide essential services?---Yes, absolutely because I - I was - I was in an office with Mr Ian Linus who is the Project Director, when he had discussions with Mr Anderton about coming to a formal arrangement. A - a draft proposal memorandum of understanding was - was done up and set to Mr Anderton for his review and comment. We got comments back from Mr Anderton about the wording of the document. They - those - that was satisfied and my understanding was that we would send a - a signed copy on behalf of Mr Linus on behalf of BMJV to Mr Anderton for the AWU's signature formalising the arrangement. That never eventuated. Mr Anderton has advised subsequently that - that they - at this stage they are only prepared to accommodate a verbal arrangement and they wouldn't be signing any formal documentation.
PN154
Okay?---One of the other issues that was raised at that meeting was, we were told quite categorically now in regards to BGC that BGC was not to perform anything other than civil work and if - and if they did that we would be still in dispute and that also that there was a BGC cleaner working down on the TOT and that they wanted that - that person put on BMJV books. We indicated that we would look at that and - and if it was appropriate that we would do that.
**** PETER JAMES KELLY XN MR COOKE
PN155
Okay. Now, were there any discussions regarding the altering of start and finish times?---Yes.
PN156
And what was the nature of the discussions?---That we had - that that was going to be implemented.
PN157
Which of the proposals was going to be implemented?---It was the early start, early finish.
PN158
MR EDMONDS: Excuse me, sir?
PN159
THE DEPUTY PRESIDENT: Yes.
PN160
MR EDMONDS: The witness has got the notes open in front of him, sir.
PN161
THE DEPUTY PRESIDENT: Oh, I didn't notice that.
PN162
MR EDMONDS: And is routinely glancing down just to check as he goes through his list of meetings, sir.
PN163
THE DEPUTY PRESIDENT: Yes. I didn't notice that.
PN164
MR EDMONDS: Yes, sir.
PN165
THE DEPUTY PRESIDENT: Thank you for bringing that to my attention. I will take note of that.
**** PETER JAMES KELLY XN MR COOKE
PN166
MR EDMONDS: Thank you, sir.
PN167
THE DEPUTY PRESIDENT: Thank you, Mr Edmonds.
PN168
MR COOKE: Were there any other issues discussed at that meeting with Mr Lovett, Mr Anderton, to your recollection, Mr Kelly?---There was the - the BGC, there was the - the cleaner, the peggies, the essential services, start and finish time.
PN169
Were there any mention of BMJV trying to get people back to work?---Oh, yes. Mr Lovett raised the issue that he'd received a number of phone calls the evening before, Wednesday night. We took the initiate based on the fact that we - since the withdrawal of labour we had received quite a number of phone calls from our - our people advising us that they were not happy to be on strike. They wanted to know what - what we could do about that. They wanted to be at work. We - we took it upon ourselves then to start ringing around all of our people to invite them to attend the meeting at 6.30 in the morning, on the Thursday morning to have a discussion with management, to hear what we had to say and to give them the opportunity to make - to make a decision on what they wanted to do. Mr Lovett told us that he'd received a number of phone calls from people who were very angry about us doing that and that there - that it could be a problem. We - we asked Mr Lovett that if we implemented the early starting and finish would that conclude all the issues between us and would that then allow a return to work and if there were any other issues that haven't already been tabled and were - were to be raised at that meeting, we would expect that people would come back to work and following the - the grievance procedure to allow us to address those issues in a proper manner. Mr Lovett indicated that in his view he thought the issues were now resolved but he couldn't guarantee a return to work because people were pretty angry about us ringing around and that that my - may have an impact.
**** PETER JAMES KELLY XN MR COOKE
PN170
Did you have any further discussions with anyone from the workers on Thursday or Thursday afternoon?---Yes. Yes, I rang - oh, I rang Colin Saunders, I think it was about half-past-2, quarter-to-3 and advised that we had been told by KJV that they would not support us implementing the early - early finish. They would support, however, a late start, late finish by 15 minutes, or, another option that they would support that BMJV could forego their afternoon smoko and knock off 15 minutes early. They were the only two positions that we were told that KJV would support.
PN171
And did Mr Saunders give any feedback on those options?---Oh, yeah, Mr Saunders advised that the option of the foregoing a smoko wasn't an option and that he would take the other proposal on board but he - he seriously doubted whether - whether that would get up with the people.
PN172
Now, are you aware whether other contractors on the site worked as normal on Thursday afternoon?---No, they didn't work as normal. My understanding is that around about 2 o'clock, UKG workers left the site, withdrew their labour and at approximately 2.30, I think, CBI took the initiative of advising their employees that their overtime would be cancelled for the rest of the day and that they would be paid until 4 o'clock as a way of not exacerbating the - the situation.
PN173
Now, do you know, approximately, Mr Kelly, from your - you work on the site full time?---Yes, I do.
PN174
Do you know approximately how many construction employees CBI have?---Oh, I'd say 600 or - or maybe more.
PN175
And United KG, how many do they have in approximate terms?---I'd say about 500.
PN176
Now, Downer, Ralph Emileah and electrical contractor on the site?---Approximately 160.
**** PETER JAMES KELLY XN MR COOKE
PN177
And then there is any number of smaller contractors employing smaller numbers, people, after that?---Yeah, there's - there's a range of other contractor which would, like, BGC, for fact, about 35. I think Kentz who are only just starting to fire up, they had about 6, I think. Ausclad, or AMJV only have about 10. At the moment there - there's quite a number of ranges of smaller contractors.
PN178
Now, on Friday the 11th - or yesterday Friday 11 July, did your employees - the BMJV employees meet as indicated?---Yes they had a meeting at 7 o'clock in the top car park. UKG also had a meeting at 7 o'clock in the top car park, in fact both groups met together for a while, then they split. And BMJV went off and Mr Lovett addressed that meeting. My understanding there that Mr Paul Asplin from the AWU, whose normally in Port Hedland attended the meeting and that a UKG shop steward also was - was there. From what we could see, because we were down outside the induction centre waiting for the meetings to finish to get some feedback from the officials that the BMJV went off and had their own meeting while UKG stook over to the side separately and waited. At about 8 o'clock the meeting broke up, Mr Lovett, Mr Asplin and -I'm sorry, forgive my ignorance, I can't remember the name of the UKG steward, came down and spoke with Peter Stillman, who is the on site project CCI adviser and myself that there would not be a return to work, that they would meet again at 7 o'clock on Sunday morning and that the outstanding issue between us now was the early start and early finish.
PN179
Did - was there any discussion about the cleaners making themselves available to service the ablution blocks?---Yes. Mr Lovett advised that that was raised and workers decided that they would not support the cleaners providing essential services.
PN180
Did you have any further discussion - how did that discussion then close out?---Well, I was under instruction not to enter into any further discussion in those circumstances and I advised Mr Lovett, that we would be seeking 127 orders from the Australian Industrial Relations Commission to get people back to work.
**** PETER JAMES KELLY XN MR COOKE
PN181
And while this was happening, were you able to see whether your employees were standing around, or were they - - - ?---They had gone.
PN182
They were moving out?---They had left, and very shortly after the UKG people left also.
PN183
Now, are you aware if normal work was carried out on the LNG site by other contractors yesterday?---BGC stayed for a while, but they left. I think Downer's went and some of the other contractors went. There were only, I think two small groups that remained because at that stage we were - there were still clean facilities available to them at that stage.
PN184
What about the major contractors CBI, did they work as normal yesterday to the best of your knowledge?---No.
PN185
Now - - - ?---No, they were - no they didn't. I think that they were - once again they were - they were given the day off by their employer, not to exacerbate the situation any further.
PN186
Now, is this the first industrial lost time that BMJV have had on the project?---No.
PN187
Did you - have you had cause to research what lost time has previously occurred with BMJV on the project?---Yes, arising out of this dispute.
PN188
Did you send that by way of e-mail to Peter Stillman yesterday?---I did.
PN189
Do you have a copy of that?---Not with me.
**** PETER JAMES KELLY XN MR COOKE
PN190
Perhaps if I could ask that the witness be shown an e-mail that he authored?---Oh sorry I do, sorry, down the bottom here. Under my notes I pushed away not to upset my friend over here any further.
PN191
Now, do you recall to those notes because in August - in October of last year did BMJV suffer any industrial action?---Yes it says from the 2nd of the 10th to the 8th of the 10th, approximately 93 workers lost 4505 total man hours.
PN192
And later in October, did you have any disruption?---Yeah, 29th of the 10th to the 31st of the 10th, approximately 101 workers lost 2929 total man hours.
PN193
Now, this year - - -
PN194
THE DEPUTY PRESIDENT: Just going back Mr Kelly, the 2nd of the 10th to the 8th of the 10th, how many employees?---93.
PN195
Thank you. Thanks Mr Cooke.
PN196
MR COOKE: Now, have you had any industrial action affecting the joint venture this year?---Yes, on the 20th of the 2nd we lost a full day. There was approximately 99 workers, lost a total of 990 total man hours.
PN197
And then from Wednesday of this week onwards you have had 124 employees not at work?---That's correct.
PN198
Now, when you - just to go back to your discussion with Mr Lovett and Mr Asplin yesterday morning following your employees voting to stay on strike. Did Mr Lovett put that forward to you as being a safety issue?---No, certainly did not.
**** PETER JAMES KELLY XN MR COOKE
PN199
Did Mr Lovett indicate people withdrawing their labour over their concerns for their personal, you know, they thought they were at risk of imminent ill health or injury?---No, I couldn't see how he could because our people withdrew their labour over industrial issues. And at that time all the facilities were all clean, it couldn't have been a safety issue.
PN200
Did he raise the traffic issue as being a matter of occupational healthy and safety, rather than industrial?---Oh yeah he told us that they believed that the nature of the claim for working 15 minutes and stopping 15 minutes early was to address concerns they had with traffic congestion, that they believed that there was potential safety problems there. But we've - we've never agreed that there were potential safety problems because on a recommendation by Mr Lovett, to address the traffic congestion problem, KJV ordered that the boom gate allowing traffic to go off site through the main boom gate be shut once traffic flow started out of the car park, until all the car park and buses had got away. So, as not to further cause problems with traffic flow out of the place. And if people - and - and we've made it clear to the unions all the way along that people were patient and acted responsibly, driving out of the car park to get onto the main access road, that their wouldn't be a problem.
PN201
Now, when you say from the car park, that is the carpark utilised by the construction work force?---That's correct.
PN202
That includes your employees?---Yes.
PN203
And the union had effectively said, correct me if I'm wrong: that the people leaving that carpark do so - they're behaving unsafely when they leave the carpark in volume?---Well, that certainly could - could be construed that way because it's their behaviour that will cause the problem.
PN204
Now, the impact of the strike, have BMJV been able to fulfil their contract since - the contractual requirements since the middle of Wednesday?---Of course not.
**** PETER JAMES KELLY XN MR COOKE
PN205
And when did - the site toilets and ablutions that you are required to keep clean, when were they last cleaned then?---Would have been - would have been Wednesday morning.
PN206
Now, from your understanding, was there to be overtime worked on the site today normally - in a normal week would Saturday overtime be worked?---Yes, well the normal hours on Saturday is 6.30 to 11.30 and then you can - you may work past that depending on what our client - our - what the erecting contracting needs are.
PN207
Okay, but your people would normally work at least 5 hours and other contractors, from your knowledge, being on site on Saturday work 5 hours or longer?---That's a standard week, yes.
PN208
Now, what time on Monday morning would the construction contractors - the other construction contractors work forces normally turn up - normally commence work?---They would - they would commence their pre start meetings at 6.30.
PN209
And so they would be down in their crib facilities, adjacent to the ablutions at about 6.30 on Monday morning?---Oh a lot of them are there before that and they go, you know, they would go in and back their bags away into the crib rooms and obviously some would be using the toilet facilities prior to commencing their pre start.
PN210
Now, when are your work force scheduled to meet again?---7 o'clock, Monday the 14th of July in the morning.
PN211
So, the ablutions will not be cleaned by your work force as it stands currently, at least until 7 o'clock on Monday morning, if they return to work?---Well, it wont be 7 o'clock by the time they finish having a meeting and if they come back into work at - and we get out people down into the workplace, it would probably be at 7.30, quarter to 8 I would think.
**** PETER JAMES KELLY XN MR COOKE
PN212
So, there will be no - BMJV will not be able to provide clean ablution blocks, say before logically maybe 8 o'clock on Monday morning, if your people do return to work?---That's correct.
PN213
Do you anticipate that may cause issues for other contractors on the site on Monday morning?---Well, I've got no doubt it will.
PN214
Now, in the discussions you have had with the unions since the strike commenced on Wednesday, have they offered to provide essential services while they're - this issue is being resolved?---No.
PN215
Now, how many people are actually involved in the cleaning crew?---We have a total crew of 12. There are 2 on night-shift and 10 regularly work days.
PN216
Now, did the union - did either the Metal Workers or the AWU suggest that those people come to work because really it doesn't add much to the traffic flow for 10 or 12 people to be at work?---Can you - sorry say that again?
PN217
Well, did the union offer that the 10 or 12 people could come to work and that would overcome - they would not be dealing with their alleged concern over health and safety if there was only 10 more people coming to work?---No.
PN218
They didn't give you that facility?---No.
PN219
So, that if not one of their people could work - sorry, if one of their to work - they would not let a group work, but not the whole lot work?---No.
PN220
Do you know of any reason Mr - have the reasons advised you Mr Kelly of any reason why they have not pursued their claim for change to working hours through the Commission - through this Commission?---No.
**** PETER JAMES KELLY XN MR COOKE
PN221
They - - - ?---Oh we've - we've - sorry, we've asked them the question as to why are people on strike, why - you know, if we've got unresolved issues why aren't we making application to the Commission to get assistance to resolve them. And the answer was that our workers have had enough and they believe that they need to take this action to get things done.
PN222
If the witness could be shown a copy of one of the Certified Agreements in - save and except the name they're in.
PN223
THE DEPUTY PRESIDENT: Are you tendering the e-mail or what Mr Cooke?
PN224
MR COOKE: No, sir, not at this point in time.
PN225
If you could turn to clause 14 of the document please Mr Kelly - - -
PN226
THE DEPUTY PRESIDENT: What is this document?
PN227
MR COOKE: This is the project agreement - the witness has a copy of one of the Monadelphous Agreements, but they are in identical terms sir, so the point remains for all applications.
PN228
THE DEPUTY PRESIDENT: Yes, are you going to tell me what it is?
PN229
MR COOKE: I could tender a copy to the Commission if it please the Commission?
PN230
THE DEPUTY PRESIDENT: Well, if you can just tell me I might even have already got one.
**** PETER JAMES KELLY XN MR COOKE
PN231
MR COOKE: The one concerned is the Monadelphous AWU Agreement I think.
PN232
THE DEPUTY PRESIDENT: What is the number?
PN233
MR COOKE: Mr Kelly?---AG2001/5631, or sorry, is it these numbers?
PN234
THE DEPUTY PRESIDENT: Thanks.
PN235
MR COOKE: Perhaps if you could turn to clause 14 please Mr Kelly?---Yes.
PN236
Now, just again for the sake of the record, the hours that you are currently are the hours you have been - that BMJV have been working since January of last year?---That's correct.
PN237
Now, if you could turn to note 4 of the procedure?---Yes.
PN238
And I quote:
PN239
Sensible time limits will be allowed for carrying out of all steps in this procedure. However this will not prevent the employer and/or the unions concerned notifying the matter to the Australian Industrial Relations Commission at any stage.
PN240
Do you see that?---I do.
PN241
In your opinion, have the unions permitted you sensible time limits to resolve this issue?---No.
**** PETER JAMES KELLY XN MR COOKE
PN242
No further questions at this stage sir.
PN243
THE DEPUTY PRESIDENT: Thank you.
PN244
MR EDMONDS: Yes sir, thank you sir, sorry, just making some notes as we were proceeding through.
PN245
THE DEPUTY PRESIDENT: Do you want a short break Mr Edmonds, would that be of assistance to you.
PN246
MR EDMONDS: If possible sir, that would be great.
PN247
THE DEPUTY PRESIDENT: We will break for about 15 minutes.
PN248
MR EDMONDS: Thank you sir.
SHORT ADJOURNMENT [11.23am]
RESUMED [11.42am]
PN249
THE DEPUTY PRESIDENT: Yes, Mr Edmonds?
PN250
**** PETER JAMES KELLY XXN MR EDMONDS
PN251
MR EDMONDS: Thank you Mr Kelly, can I just clarify Mr Kelly, your evidence. Your evidence was that Tony Lovett, the organiser for the AMWU specifically said to you that the reason why the traffic issue was a concern was because the traffic congestion had the potential to be a considerable safety problem, is that correct?---Yes.
PN252
Right, okay. Now, as far as your are aware, oh sorry I withdraw that. Have you ever been in the stream of traffic home from the Burrup Peninsula to Karratha?---Yes.
PN253
At the end of the work day?---Yes.
PN254
Is that a very pleasant experience?---Oh well it's - I wouldn't say it's unpleasant, it's just necessary.
PN255
What is the speed limit between the turn off from the Burrup Peninsula and Karratha?---A hundred and ten.
PN256
And how many cars do you estimate leave the workplace at the end of the day?---Well, there's about approximately 300 in the top car park and about 10 buses.
PN257
So, about 300 cars and 10 buses?---Yeah.
PN258
All leaving within close proximity of each other, is that correct?---Within - I'd say within 5 or so minutes, depending on the time that people - various contractors, people get through the gate.
PN259
Sure, and all of them head back to Karratha at 110k's an hour?---Well, not all, some go a bit faster, some go slower.
**** PETER JAMES KELLY XXN MR EDMONDS
PN260
All right, okay. Is the road back to Karratha a single lane road or is it a dual carriage way?---No, it's single lane.
PN261
Okay. Now, you said in your evidence that - sorry if I can just - I withdraw that sir. You said in your evidence about the dispute resolution procedure, that there has been no application made to the Australian Industrial Relations Commission to deal with the issue of the traffic, is that correct?---To the best of my knowledge there hasn't been.
PN262
All right, okay. To your knowledge, is it necessary for a safety issue to be taken through the grievance resolution procedure?---My experience on this site, yes that's how they - it's not uncommon for issues that - potential safety concerns to go through it. Obviously they need to go through to be addressed by safety officers and safety committees.
PN263
Okay, so you believe that if your workers have got concern about their safety, that they should take the matter through the grievance resolution procedure and shouldn't just not undertake the unsafe behaviour - or the unsafe work?---Well, no - well there's two - two things that need to happen. One, obviously if it's a safety issue it needs to be raised as such and the appropriate people would deal with it right - - -
PN264
Who is the appropriate person to deal with the safety issue?---Well, we have - we have safety officers on site, who would then, depending on the issue - depending on how - the urgency of it or whether it's something that can be left to be dealt with through the Safety - Safety Committee, for discussion and put up a recommendation or resolution to address it. But the nature of the beast out there is that shop stewards and union officials quite often also bring it to my attention and say that it has potential industrial ramifications if this is not sorted out.
PN265
All right. What do you say to those shop stewards then when they bring safety issues to you?---Well, I first ask them if - have they raised it with the safety representative, or safety - safety officers.
**** PETER JAMES KELLY XXN MR EDMONDS
PN266
All right. Now, when Tony Lovett said to you that the traffic congestion issue was a safety problem, had you - at that time that he raised that with you, had you asked him if he had raised that issue with the safety officers?---No, I can't recall I did.
PN267
Okay. Did you refer the matter to the safety officers yourself?---Yes.
PN268
The issue of the traffic congestion?---Yes.
PN269
And what was their recommendation?---You need to appreciate that this particular issue has been around for a while, right, and the constant feedback from employers that the only way it becomes a real safety issue is if the employees make it one by their own irresponsibility, ie in driving getting out of the place. But we have raised the issue with KJV before. We've looked at all - a lot of options on how to alleviate the traffic congestion, right. And as I say, one of the initiatives taken was to lock the boom gate, or don't allow people from on site out through the boom gate so it doesn't - it didn't add more cars. But this is - this is mainly about just inconvenience and not - - -
PN270
All right, okay. Now - - - ?---People just wanting to get out of the place quickly.
PN271
Okay, now you said in your evidence that you as the representative of the joint bencher made a decision - or that the joint venture itself made - that you made a decision to bring forward the start and finish times by 15 minutes to address this safety concern. That was your evidence wasn't it?---Well, we said that we intended to implement that to address the traffic congestion problem, yes.
PN272
And you - - - ?---We've never agreed that it's a safety problem.
PN273
Well, your evidence was that that would alleviate the safety issue, wasn't that your evidence?---No, that's - that was what Tony Lovett put up, that it would alleviate the safety problem. All we said was that we could alleviate the traffic congestion.
**** PETER JAMES KELLY XXN MR EDMONDS
PN274
Which is a safety problem?---In - in the unions eyes, yes.
PN275
Now, you say that you have referred the matter to your Safety Committee, so obviously you feel that there is some sort of safety issue there?---No, I asked them to look at it to - to see if there was a safety issue.
PN276
Okay. Now, you said in your evidence that the joint venture intended to implement the early start/early finish proposal. You said that you advised the union of that on Wednesday, is that correct?---Yes Wednesday afternoon I think it was, after they withdrew their labour. Or - just let me think. Remember I've been at 8 meetings in 7 days on this issue and pinpointing the exact day when what was said - - -
PN277
Well, you didn't have a problem with pinpointing it in your evidence, you said it was Wednesday?---No, yeah and - no I stand corrected, it was on Thursday I think now, that we advised that we would be going to KJV, letting them know that we intended to implement the 15 minutes early start/early finish.
PN278
All right. So, it was on Thursday that you said to the unions that you had an agreement on that issue, is that correct?---I rang Colin Saunders - oh sorry, no that was when I rang Colin to tell him that it had fallen over. That's right, that we intended to implement it, that's right.
PN279
And you were advised by the unions at that point that that issue then had - it had sorted out all the problems?---We asked the union if - if that implementation intention got through, would that resolve all the issues between us and allow a return to work.
PN280
And what did they say?---Mr Lovett said: in his opinion, reminding you just saying in his opinion he thought that yes that would - that would probably facilitate that.
**** PETER JAMES KELLY XXN MR EDMONDS
PN281
So, as far as your aware there is only this outstanding issue which has led to workers not attending for work on Thursday and Friday and today?---And also the further clarification that Tony came back to us on BGC that they - that BGC can only do civil work.
PN282
Okay, but you said in your evidence that the only issue at this point of time - the only issue is the early start/early finish proposal?---That's my understanding.
PN283
Okay. Now, you did say in your evidence that Tony Lovett had said to you that the traffic issue was to address concerns with traffic congestion, as he felt that that was a safety issue. Did you note that down in these notes that you have prepared of your meetings?---No I - I think I referred - referred to it as traffic congestion.
PN284
All right. But you didn't note down the fact that Tony Lovett had raised it as a safety issue though?---No, I don't think I did.
PN285
Okay, who prepared these notes for you?---I did.
PN286
You typed them all up as well?---Yes.
PN287
And do you have any notes of your meetings?---Not with me.
PN288
Now, if I can just turn to a different issue. Is it your understanding of the arrangement for the Burrup Peninsula, that every company - or every organisation - sorry, every company that comes on to do work has to have an enterprise bargaining agreement with either the AMWU or the CPU, is that correct?---All the major contractors and some of the lower tiers subcontractors don't.
**** PETER JAMES KELLY XXN MR EDMONDS
PN289
It is your understanding that subcontractors don't have to have agreements with everybody, is that correct?---That's right.
PN290
Well, I put it to you that that is actually not the case. That every contractor on that site has had an agreement with the relevant union?---All the major contractors do, yes. We have some sub-contractors who are owner/operators, single identities. Right?
PN291
But every major company that comes under that site?---Absolutely, yes.
PN292
Does BGC have an agreement on that site?---My understanding, BGC has an agreement with the AWU.
PN293
And BGC are your sub-contractor?---Yes.
PN294
Is that correct? Now, as far as you are aware, does that agreement between BGC and the AWU actually cover plumbers, tradespeople?---No.
PN295
It doesn't cover tradespeople?---No, it doesn't cover plumbers.
PN296
All right. And as far as you are aware, are there plumbers from BGC doing work on that site for you?---I am not aware that BGC has any plumbers per se.
PN297
Okay?---I understand it has been - we have been told that BGC - some BGC people have been doing some roofing work. That is construed to be plumbing work.
PN298
Okay. Well, we will lead evidence that you have a sub-contractor arrangement with BGC, that BGC is employing plumbers on the site and that there is no agreement to cover those plumbers between the relevant union and BGC. What do you say to that?---Well, if you are going to lead the evidence, that is up to you.
**** PETER JAMES KELLY XXN MR EDMONDS
PN299
Okay. But you don't have a response to that?---No.
PN300
You agree that all major companies on that site are supposed to have agreements with the relevant unions to cover their workforce?---Yes.
PN301
And we are going to lead evidence to say that that is not the case with respect to BGC and you don't have any comment to make with respect to that?---Well, if that is the case, that is the case.
PN302
I have got no further questions for this witness, sir.
PN303
THE DEPUTY PRESIDENT: Just a moment, Mr Kelly. Mr Cooke might want to ask you a question.
PN304
MR COOKE: Perhaps I will deal with it all in re-examination, sir. It might be quicker.
PN305
THE DEPUTY PRESIDENT: Sorry, Mr Daly, I assumed you weren't going to ask any questions. My apologies. Are you?
PN306
PN307
MR DALY: I think your evidence, Mr Kelly, was that the issue of the car park and safety issues was first raised with you on 1 July? I thought that was the evidence you gave when Mr Cooke - - - ?---No.
**** PETER JAMES KELLY XXN MR DALY
PN308
When do you say it was first raised with you?---What, you mean in regards to this particular dispute?
PN309
No. In regard to the issue of safety at the car park or the car park being a safety issue?---The issue of the car park traffic congestion was probably raised some 2 months ago with all the contractors. That is my understanding.
PN310
So, you wouldn't be surprised if it Mr Lovett had written to Mr Stillman of the CCI on 26 May and in that letter - perhaps in fairness to you, perhaps if I can ask you to have a look at this document. I have given my copies to my colleague here. Perhaps anyway if you could just perhaps read the bottom section which refers to the issue of the car park?---Yes, yeah.
PN311
Sorry. Maybe we go back a step. Can you first, off the record, just tell us what date is on the letter?---Monday 26 May 2003.
PN312
And can you tell us who the letter is from and to?---It is from Tony Lovett, AMWU Organiser to Mr Peter Stillman, CCI, North West Shelf.
PN313
And could you just read for the benefit of us all what Mr Lovett says about the issue of the car park at the bottom of the page?---Right. Under the heading: Car Park Safety:
PN314
We would also like to raise as we see a very unsafe situation, that being the need for traffic wardens in the car park. It is our view that this issue needs to be attended to urgently before someone is injured or an accident takes place with even more serious ramifications. We seek immediate response to these issues raised. Should you have any queries regarding this correspondence, don't hesitate to contact me on my mobile number.
PN315
Which he provided. Yes.
**** PETER JAMES KELLY XXN MR DALY
PN316
Do you accept that as best as you know that this is a letter from Mr Lovett?---Well, other than for the fact it is signed but it certainly says it is from Mr Lovett.
PN317
All right. Would you challenge that Mr Lovett raised that issue as early as 26 May?---No. I have no basis to say that.
PN318
PN319
MR DALY: I don't have any further questions.
PN320
THE DEPUTY PRESIDENT: Thank you.
PN321
PN322
MR COOKE: Do you still have a copy of that Monadelphous civil agreement before you?---Yes, I do.
PN323
Could you turn to page 5 of that agreement?---Yes.
PN324
Is that the classification structure?---Yes.
**** PETER JAMES KELLY RXN MR COOKE
PN325
Look at classification CW5?---Yes.
PN326
There is a classification of tradesperson other?---Yes.
PN327
So, if someone was doing work under that agreement and they employed a tradesperson not otherwise mentioned, do you believe that would cover them? Tradesperson not otherwise defined?---Well, it all depends. It all depends on what the tradesperson is. There is also - Monadelphous has an agreement with the CEPU which my - - -
PN328
Okay. But excluding Monadelphous - - - ?---Yes.
PN329
- - - but just as a civil agreement - - - ?---Right.
PN330
- - - if BGC had a civil agreement in the same terms and I am - - - ?---It is okay. I understand.
PN331
Does the civil agreement that Monadelphous has have a classification for tradesperson other?---Yes.
PN332
And it is possible that BGCs agreement, may be in the same terms, that is possible?---Well, I would - I would say it was very possible.
PN333
Thank you. Now, to go to exhibit AW1 Mr Kelly. When Mr Lovett raises the issue of car park safety, he does so in the sense that he was looking for traffic wardens in the car park, do you read that in the first paragraph under the heading: Car park safety?---Well, that's what it says.
PN334
So, when did Mr Lovett first raise with you the issue of car park - sorry, in terms of car park congestion, in terms of start and finish times. It was some time later than this letter?---Oh yes.
**** PETER JAMES KELLY RXN MR COOKE
PN335
A day or two, or potentially weeks later?---It was - I think it was on the Thursday the 3rd of the 7th I think during discussions we had.
PN336
So, although Mr Lovett had raised this issue of car park congestion or safety back in May, he did that seeking traffic wardens, not as a way of altering start and finish times for BMJV?---No, no, that's correct.
PN337
And he didn't actually raise the start and finish time issue until earlier this month?---That's correct.
PN338
No further re-examination sir.
PN339
THE DEPUTY PRESIDENT: Mr Kelly, the last services that were provided for the site by Monadelphous and Brambles was when, under the terms of the employees that are currently engaged in this action?---Wednesday.
PN340
Sorry, when?---Wednesday.
PN341
So, if I can class it this, the work readiness of the site, that is the site being in a condition that other employees of other contractors would be used to, as if there was no disruption, what is the status of the site now in that regard?---My understanding is some - some of the ablution facilities certainly need to be cleaned. There would be probably only a very few that - that over this period of time with the usage it's had since Wednesday, especially down on the plate - sorry that's where the major erecting contractors work. It wouldn't take long for those - those facilities to - to require cleaning. See, it's done daily.
PN342
How long would it take for those facilities to be made, I will use this category again, work ready?---If we had all the cleaners, I would say probably 4 - 4 or 5 hours all up.
**** PETER JAMES KELLY RXN MR COOKE
PN343
Do any of those employees work outside of those, or have they on any occasion, those hours that you outlined were their regular hours?---Yeah, we have two - two cleaners on night shift.
PN344
Not the two that work night shift, but there are any occasions, a special occasion or a circumstance where they would work other hours?---If - if there's overtime on for Saturday - all day Saturday and Sunday, right, and it's - it's all of the major contractors on site, we would probably get the cleaners to work back Saturday afternoon to ensure that we got - we were able to get through Sunday till Monday morning.
PN345
Yes, is there any reason why if they were required to work on a Sunday they wouldn't be able to?---Oh no, I think some of them would be appreciative of the overtime.
PN346
PN347
MR COOKE: Deputy President, we would contend that from the evidence of Mr Kelly, there plainly is work that both Brambles and Monadelphous are carrying out that is regulated by Federal Certified Agreements. We think that there is uncontroverted evidence. We would submit that industrial action is occurring, and that we say also comes clearly from the evidence of Mr Kelly and that that industrial action had its genesis not solely in some safety related matter, but over a series of industrial issues. Not only going to what time people start and finish work, but going to the use of contractors and going to concerns that people obviously have of wanting to prolong their employment if BMJV were to pick up a commissioning contract, given that retrenchments will occur in the due course - - -
PN348
THE DEPUTY PRESIDENT: Can I just interrupt you there Mr Cooke, are you intending to call any more evidence?
PN349
MR COOKE: No, sir.
PN350
THE DEPUTY PRESIDENT: You are providing a summary now are you?
PN351
MR COOKE: At the moment, yes, sir.
PN352
THE DEPUTY PRESIDENT: Well, I would prefer that summary to follow any evidence, that I understand that the union was intending to call. Is that still the intention Mr Edmonds?
PN353
MR EDMONDS: Yes, sir, we would seek to call one witness sir.
PN354
THE DEPUTY PRESIDENT: How long will that take do you estimate?
PN355
MR EDMONDS: With cross examination sir, I hope it wouldn't take more than half an hour, sir.
PN356
THE DEPUTY PRESIDENT: Well, I suggest we do that now and I will consider where we go from there.
PN357
MR EDMONDS: Thank you, sir.
PN358
PN359
MR EDMONDS: Thank you, Mr Anderton, if I can just have your full name, address and occupation please?---Glenn William Anderton, I live at 7 Maude Street, East Vic Park and I'm an organiser with the Australian Workers' Union.
PN360
Now, in your profession as an organiser for the AWU have you had cause to have involvement with the Burrup Peninsula, in particular the work, the subject of today's proceedings?---Yes, I have.
PN361
If I can take you to some of the issues that have come up out of today's proceedings. Have you any knowledge about the number of cars that are parked at the workplace on a normal work day?---Yes, I have.
PN362
And how many cars are there?---Well over 300.
PN363
Right. And is there buses in addition to the cars?---Yes, definitely, probably about 10 - 10 or so buses.
PN364
Okay. Have you ever seen those cars leaving the premises at the end of the day?---Yes, I have.
PN365
And I wonder if you could describe that sight for the Deputy President?---It is absolute mayhem for about 20 minutes.
PN366
Okay. Have you been in the traffic stream back to Karratha?---No, I haven't actually.
PN367
Have you ever witnessed the traffic stream back to Karratha?---Yes, visually, yes, not - not actually in it.
**** GLENN WILLIAM ANDERTON XN MR EDMONDS
PN368
How does it appear to you visually?---Dangerous.
PN369
Okay. Have any of the workers on the Burrup Peninsula ever raised that particular issue with you, the actual safety issues?---Yes, they have been raising them for a - for a while and it is - obviously it is getting worse with the more people that are on the project.
PN370
Okay. Have you raised the safety issues with the company with respect to the traffic?---Yes. It was a discussion before one of our six weekly meetings at one stage.
PN371
All right.
PN372
MR COOKE: Sorry, would the company be more precise as to which company?
PN373
MR EDMONDS: Which company are we talking about?---With BMJV.
PN374
Okay. Now, as far as you are aware or has the AWU or any other of the trade unions ever raised that particular safety issue through the grievance procedure?---Not through the grievance procedure, no.
PN375
Right. As far as you are aware is it a requirement that any safety procedure go through the grievance procedure?---No, not at all.
PN376
Okay. So if the plant was on fire you wouldn't need to lodge an application in the Industrial Relations Commission then?---No, we believe it would take too long.
**** GLENN WILLIAM ANDERTON XN MR EDMONDS
PN377
All right. So you would just run away if the plant was on fire then. Okay, if I can take you specifically to last Thursday and the issue of the agreement made between the unions and BMJV with respect to the early start, early finish time, I wonder if you could tell the Deputy President about that agreement?---The issues - the issues that were - was party to the initial dispute had all been resolved bar one, which was the start and finish times. The company actually, after some discussion, had made an offer to us and said that if - if they were to resolve that would that - would that fix everything up and we said: well, at that point in time, yes it would. That was the only issue that was outstanding.
PN378
Okay.
PN379
THE DEPUTY PRESIDENT: When was this, sorry?---This was on the Thursday.
PN380
Around what time?---It would have been around - around 11.00 o'clock.
PN381
Thank you.
PN382
MR EDMONDS: Now, why did the company agree to actually change the start and finish times?---Because they could see that there was - there was concern there and - and they wanted to resolve it. They - they openly wanted to fix the problem up.
PN383
And did they concede at that time that the issue of the traffic congestion was a safety issue?---Yes, they had, yeah.
**** GLENN WILLIAM ANDERTON XN MR EDMONDS
PN384
Okay. And what subsequently happened to the agreement between the union and the company with respect to the traffic congestion?---Well, I - I'm still really bewildered at it because we had the three main people there from BMJV, they had agreed that they were going to resolve it, they were going to give the 15 minute start early and knock off 15 minutes early and they would be telling KJV that that was how they were going to handle their workforce. Subsequently, we said to them: well, if that is the case then we believe all the issues are resolved.
PN385
All right. And what happened to that agreement though, is it in place now?---No, it is not. At some stage in the afternoon someone else got involved and I have my own thoughts about that, but someone else got involved and it turned turkey.
PN386
Right. Okay. Now, these 124 workers out of the site at the moment, are they taking industrial action or are they concerned about their safety?---They are concerned about the safety. It is definitely a safety issue, that is the only issue that wasn't resolved.
PN387
Okay. If I can just turn to another issue briefly, the AWU has an agreement with BGC?---Yes, we do.
PN388
Okay. Does that agreement actually cover the plumbers on the site?---No.
PN389
Is there plumbers on the site undertaking work?---I believe there is.
PN390
Okay. So to your understanding, which agreement actually covers those plumbers on the site?---Well, I would suggest that it would be an agreement with the trades because we don't have the coverage in our rules.
PN391
Okay. And does that agreement, to the best of your knowledge, exist between the AMWU and BGC?---No, it doesn't.
**** GLENN WILLIAM ANDERTON XN MR EDMONDS
PN392
Okay. I've got no further questions of this witness, sir.
PN393
THE DEPUTY PRESIDENT: Okay. Mr Daly, do you want to ask any questions now?
PN394
MR DALY: I've have no questions, sir.
PN395
PN396
MR COOKE: Mr Anderton, you sat at the back of the Court and heard all of Mr Kelly's evidence?---Yes, I did.
PN397
Thank you. So you didn't feel the need to excuse yourself so that your evidence wouldn't be tainted having heard his?---No, not at all.
PN398
Good.
PN399
THE DEPUTY PRESIDENT: Mr Cooke, you didn't ask for any exclusions nor did you ask whether there were going to be any witnesses.
PN400
MR COOKE: No, but the - - -
PN401
MR EDMONDS: After you've led your witness through his evidence.
PN402
MR COOKE: The issue on Thursday, you were on site on Thursday, Mr Anderton?---Yes, I was.
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN403
Now, you weren't on site on Wednesday when the strike commenced?---No.
PN404
What issues were you told were the issues that led to the strike?---There were a number of issues that were pertaining to contractors, the skip payment and the demark of the - not demark of the job, the start and finish times on those - on the project, congestion virtually.
PN405
Now, the skip payment that is an industrial issue?
PN406
MR EDMONDS: Sir, sorry, excuse me, sir, with respect to the cross-examination, sir, I never took the witness to the issues of the skip payments, I don't know how he can be cross-examined on - - -
PN407
THE DEPUTY PRESIDENT: Well, Mr Cooke can ask whatever he wants to, of anything of the witness, it is cross-examination.
PN408
MR EDMONDS: Well, it is my understanding, sir, that a cross-examination deals with the issues raised in the cross-examination, sorry with the issues raised in the examination.
PN409
THE DEPUTY PRESIDENT: Well, perhaps I'm naive, Mr Edmonds, and I don't know, but anyway my approach is going to be he can ask whatever question he wants.
PN410
MR EDMONDS: All right, sir.
PN411
THE DEPUTY PRESIDENT: As long as there is a relevance to these proceedings.
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN412
MR EDMONDS: Certainly, sir.
PN413
MR COOKE: Now, the issues that the BMJV workforce went on strike over on Wednesday, as you understand them, Mr Anderton, there was the taxation of the skip payment?---That is what I believe.
PN414
And that was an industrial issue, that is an industrial issue?---Okay.
PN415
Well, is it or is it not?---Well, I would say, yeah.
PN416
Thank you. Now, there is an issue over the use of BGC as a contractor to BMJV, that was an issue?---I believe there was.
PN417
Sorry?---I believe there was.
PN418
And that is an industrial relations issue?---I believe it to be.
PN419
And there was an issue over BMJV people seeking undertakings that they be engaged on commissioning work should BMJV pick up the commissioning contract, are you aware of that issue?---It is a natural course, yes.
PN420
And that is indeed an industrial relations issue?---Yes, it would be.
PN421
And there was the issue of congestion in the car park?---That is right, which is not an industrial issue.
PN422
And the congestion in the car park, that could be resolved if your people waited five minutes before they left couldn't it?---There would probably be a dozen different ways that it could be resolved, but to this point - but to this - - -
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN423
But that would be a potential resolution wouldn't it?---But to this point in time no one would listen and no, it is not an industrial issue, it is a safety issue.
PN424
If the BMJV workforce were to wait five minutes before they left until five past five, the traffic would be much less congested wouldn't it?---Well, it would have to be that five minutes less congested, yes.
PN425
Yes. Now, if the BMJV people decided not to have an afternoon smoko and knocked off that 15 minutes earlier that would allow them to beat the congestion too, wouldn't it?---It probably would.
PN426
Yes. Now, there are, therefore, any number of ways that we could address the issue of traffic congestion couldn't we?---As I said, probably about a dozen or so.
PN427
And it doesn't require a change potentially to the ordinary working hours?---Not all of them.
PN428
Some do, some don't?---Some do, some don't.
PN429
Yes. So really the issue is that the proposals that have been put forward are industrially not acceptable to the BMJV workforce aren't they?---They're our proposals that we were putting forward, why would they not be acceptable, we hadn't had any.
PN430
Well the smoko suggestion, that was your proposal?---We hadn't had any suggestions from you people.
PN431
BMJV didn't raise the issue of working through the afternoon smoko?---Not with me.
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN432
Well, is it possible they raised it with other officials?---I don't know, you will have to ask the other officials.
PN433
That was the evidence of Mr Kelly. Well, that was the evidence of Mr Kelly, you recall hearing that evidence?---Yeah, I did, I was sitting in the Court room.
PN434
So you heard the evidence of Mr Kelly, you don't know anything to the contrary, you don't have any evidence to the contrary that that wasn't raised?---No, because I didn't ask Mr Kelly or did I ask any of the other officials.
PN435
Now, the traffic congestion that goes to the behaviour of the - the 300 cars that are in the, what is described as: the top car park; they predominantly belong to construction workers who are engaged on the project?---That is right.
PN436
And those people work for a range of different contractors?---Yes.
PN437
And it is the behaviour of the drivers of those cars as they are exiting the site that causes your members concerns?---I don't know about that, I don't know whether it would be behaviour. I would have thought our members were behaving in a satisfactory way.
PN438
So what is the issue regarding the cars exiting the site, this congestion?---It is just the congestion - it is just the congestion. The likelihood of people getting knocked over or bumper to bumpers and it is just - just concern.
PN439
You've stood at the gate and watched people leaving the site?---Yeah, I have, yeah.
PN440
You've noted that there is security guards charged with traffic control?---Yes - yeah.
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN441
And that was in line with the suggestion put forward by Mr Lovett back in May?---Yeah - yeah. And the boom gate issue too, that was a response from our concerns as well.
PN442
Now, the boom gate controls traffic coming directly from the site rather than the car park for the sake of the record?---That is right - that is right.
PN443
And the traffic that comes directly from the site is more predominantly, at that time of the night, staff employees rather than construction employees?---That is correct.
PN444
So KJV have been prepared to look at delaying staff employees exiting the site to permit construction employees an easier egress?---Well, I don't know whether it is because of that reason because the staff employees are driving company vehicles, workers are driving their own vehicles.
PN445
But by holding the staff people behind the boom gate, KJV are giving preference to the construction employees in terms of traffic flows?---Well, they could see there was a safety concern, yes, so they did, yes.
PN446
So, again, the managing contractor was sought to address the issue in that manner?---Yeah.
PN447
Were you present on the site during the construction of trades one or two, Mr Anderton?---No, I wasn't.
PN448
You weren't?---No.
PN449
So you weren't aware of the number of people engaged on the site at that time?---No.
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN450
So you were not aware that the traffic flows were significantly greater in that time?---I couldn't make any comment because I wasn't there.
PN451
Now, on Thursday morning there was a meeting with yourself and Mr Lovett from the Metal Workers?---That is right.
PN452
And Mr Gray, Mr Cavanagh and Mr Kelly of Brambles Monadelphous Joint Venture?---That is correct.
PN453
And you were told by Mr Gray precisely that subject to KJV agreement it may be possible to implement the early start, early finish proposal?---Yeah, they virtually told us that they were going to make the - they had made the decision that they were going to agree with the 15 minutes start early and 15 minutes knock off early and they were going to tell KJV to that effect.
PN454
Well, it was subject to the agreement of their client, that is what was said to you?---Well, unless - and it was to stand unless someone else told them differently.
PN455
So it was a contingent proposal at best?---No, they - they had given us - - -
PN456
Well, it was subject to someone elses - it was subject to some other organisations concerns?---Well, it was, yeah, but they gave us assurances that was their position.
PN457
And it may still be their position as far as you know?---Good, that solves the problem.
PN458
But it is subject to the concerns of others?---Well, I don't know, I - - -
**** GLENN WILLIAM ANDERTON XXN MR COOKE
PN459
But that is what Mr Gray told you, didn't he?---I don't believe he told me that.
PN460
Were you at the meeting?---It was - yeah, I was there.
PN461
Mr Gray was the one who actually stated that regarding the early start and early finish?---But it was - yes, yeah.
PN462
Had he said it was subject to?---Unless someone else told him any different.
PN463
No further questions, thank you, sir.
PN464
THE DEPUTY PRESIDENT: Thank you. Mr Edmonds.
PN465
MR EDMONDS: Yes, sir, there is just one issue.
PN466
THE DEPUTY PRESIDENT: Now, you are confined to matters that Mr Cooke raised, just for the record.
PN467
PN468
MR EDMONDS: Is it your understanding of the afternoon smoko that that is part of a fatigue management process?---Yes, it is, definitely.
PN469
Okay. So if someone weren't to take their afternoon smoko then it would raise alternative occupational health and safety issues, wouldn't it?---Definitely, on a job that size, yes.
**** GLENN WILLIAM ANDERTON RXN MR EDMONDS
PN470
I've got no further questions of this witness, sir.
PN471
THE DEPUTY PRESIDENT: Thank you, Mr Edmonds. Mr Daly.
PN472
MR DALY: No questions, sir.
PN473
THE DEPUTY PRESIDENT: You are hiding yourself in a corner over there. You are excused, thank you. Is there any further evidence Mr Edmonds?
PN474
MR EDMONDS: We have no further witnesses to call, sir.
PN475
THE DEPUTY PRESIDENT: Mr Daly, do you have any evidence?
PN476
MR DALY: No, sir.
PN477
THE DEPUTY PRESIDENT: What I propose to do is to adjourn these proceedings. I'm going to adjourn them until 9.30 on Monday morning. I would, in the meantime, Mr Edmonds and Mr Daly, strongly recommend to you that should there be any requirement for any employees to be made available between now and the normal start time for the project, which I understand to be 6.30am for the majority of employees on that site, but should there be any requirement for any employee employed by either of the two employers subject to these proceedings to work prior to then in order for the site to be made work ready, that those employees do perform any work as requested.
**** GLENN WILLIAM ANDERTON RXN MR EDMONDS
PN478
I will also take into consideration, if I do have jurisdiction, in exercising my discretion to issue an order as to whether that recommendation is followed if the request is made by the two employers concerned. I will also take into account obviously any outcome of any meeting held and I understand from the evidence there is a meeting proposed to be held at 7.00am on Monday, in considering whether I exercise my discretion should I have it to issue an order. In saying that, I also suggest to Monadelphous and Brambles that if they do have concerns about the site being ready for commencement of work on Monday for other employees and despite it may be at greater cost than would otherwise have been the case, if they require any employees to work between now and then in order to make the site ready they should strongly consider doing so.
PN479
I will adjourn these proceedings until 9.30 on Monday. At that time, Mr Edmonds, I will expect a summary from you and any statements you may care or wish to make, the same for you, Mr Daly, followed by any submissions you may wish to make, Mr Cooke. This matter is adjourned on that basis.
ADJOURNED UNTIL MONDAY, 14 JULY 2003 [12.28pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
PETER JAMES KELLY, SWORN PN40
EXAMINATION-IN-CHIEF BY MR COOKE PN40
CROSS-EXAMINATION BY MR EDMONDS PN251
CROSS-EXAMINATION BY MR DALY PN307
EXHIBIT #AWU1 CORRESPONDENCE DATED 26.5.03 FROM TONY LOVETT, AMWU ORGANISER, TO PETER STILLMAN, CCI NORTH WEST SHELF PN319
RE-EXAMINATION BY MR COOKE PN322
WITNESS WITHDREW PN347
GLENN WILLIAM ANDERTON, SWORN PN359
EXAMINATION-IN-CHIEF BY MR EDMONDS PN359
CROSS-EXAMINATION BY MR COOKE PN396
RE-EXAMINATION BY MR EDMONDS PN468
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