C2003/217, Transcript of Proceedings [2003] AIRCTrans 3756 (26 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2003/217

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

and

CBI CONSTRUCTIONS PTY LTD AND OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re payment of wages for
workers engaged on the Phase 4 Expansion Project
on the North West Shelf

KARRATHA

1.30 AM, TUESDAY, 12 AUGUST 2003

PN1

MR C. SAUNDERS: I appear on behalf of the AMWU with MR A. LOVETT.

PN2

MR P. COOKE: I appear on behalf of the respondent employers in these matters, appearing with me is MR P. STILLMAN.

PN3

THE COMMISSIONER: Thanks, Mr Cooke. Mr Saunders?

PN4

MR SAUNDERS: Yes, sir. This is a matter that has caused loss of income to members and employees on the project, which happened around about 10 July last month. And in summary, to give the Commission an idea about what was happening at that period of time, the BMJ, Brambles Monadelphous Joint Venture employees were in dispute with their employer over a safety issue. The safety issue was the access and egress from the project, using the car park and that there was a number of claims made against their employer to make the job safe. And that the employer, in our submissions which we will put to you later, agreed to the request to their employees and their safety reps to resolve the issue.

PN5

The Brambles Monadelphous Joint Venture employees have a role on the project to, amongst other things, is to do the warehouse, to receive goods, dispatch goods. And further, they have a contract to service the ablution blocks both for the client, which would be Kelloggs' Joint Venture and for the contractors. So other services they are required to do under their contract is to clean the ablution blocks for CBI Constructors, Downer Ralph M. Lee and United KG. That workforce was in dispute over a safety issue and they withdrew all their labour. In turn the contract to be able to clean the ablution blocks for those three employees, the services were withheld and in turn the ablution blocks became a hygiene problem for the rest of the workforce on the project.

PN6

If I recall, sir, the dispute started around about the Wednesday, 10 July - Wednesday 9 July, was it? Yes, it was. Wednesday 9 July and the workers with those three contractors that I've named continued to work on the project until it became a problem around about midday or prior to midday on Thursday, 10 July. Now on 10 July the contractors understood that there was a hygiene problem. There was discussions with the union, with the delegates over the three contractors to try and resolve the issue and there was an agreement reached in some areas how it should be progressed.

PN7

At the same time the unions, both the AMWU and the AWU who represent employees at BMJV also had discussions over the initial dispute and that was the safety of the access and egress from the car park along the road back to their residence. And that employer agreed that the way to resolve the problem was to start their workforce 15 minutes earlier and to - for those workers to leave the job 15 minutes prior to the majority of other workers. And that making sense was that because they were in the main local residents, as a group of employees with one contractor they had a large number of cars which filled up the car park. They were the major employees who drove to and from the project.

PN8

So around about midday on Thursday 10 July, the project had at that stage an agreement was reached between the union, the shop stewards and the employer about the safety dispute. I have to say that later on that day it changed and I will come back to that but at that particular time there was a matter of where the grievance between BMJV and their employees had been resolved. But the flow-on effect, of course, was that there was the ablution blocks for the other contractors weren't - they were affected because they hadn't been cleaned and the hygiene of the project became an area where the contractors, I would have to say the Kelloggs' Joint Venture, the unions and the workforce agreed that there was a hygiene problem on the project.

PN9

So there was no dispute there was a safety matter between the parties and it was how do we deal with that safety matter, keeping in mind that at that particular time we thought the overall problem had been resolved. So on Thursday, 10 July the contractors agreed to send the workers home and pay the workers up to 4 o'clock on that particular day even though their normal knock off time was at 5.30. And again for the record, on Friday 11 July the workers were knocked off at 3 o'clock and their normal knock off time - sorry, 5 o'clock knock off.

PN10

THE COMMISSIONER: Their normal finish time was 5?

PN11

MR SAUNDERS: 5, yes.

PN12

THE COMMISSIONER: Okay.

PN13

MR SAUNDERS: So it is one hour's pay.

PN14

THE COMMISSIONER: That is?

PN15

MR SAUNDERS: Sorry, yes, 1-and-a-half hour's pay, one hour on overtime. The Friday was the same, well to this degree that they knocked them off at 3 o'clock and that they normally worked through until 4 o'clock. So they lock one hour which is 1-and-a-half hour's pay. Saturday they are rostered to work or compelled to work a minimum of five hours on Saturday, the 12th. And on Monday, 14 July they returned to work and left the project between 7.30 and 8 o'clock and there is no dispute after that period of time that the workers went into dispute. But our argument, Commissioner, is that the employer is not entitled to deduct money in the area where there is a grievance or an occupational health and safety problem on the project.

PN16

If I could go to clause 19 of the hours of work in the agreements? For the record, let me say that the agreements are in the same terms for CBI Constructors, United KG and Downer R.M. Lee. So if you look at one agreement you are looking at the same agreement only with different employer's name on them. Now if you go to the: Hours of Work, clause 19 subclause 2: Project Working Hours. It specifies:

PN17

The standard schedule of working hours will be 54 hours per week. Work within the following ordinary hours except in the case of shift employees.

PN18

And underneath that it sets out a graph of how the hours are worked by all employees on the project as a minimum requirement. So the union says that that is a minimum standard, that is a standard that the employer expects them to work and we submit that the employer has an obligation to pay especially when it comes to a safety dispute. If you go to subclause 3: Requirement to Work Overtime. Again spells out the number of hours which will usually comprise the working week, will be an average of 54 hours which is inclusive of rostered overtime. It then goes on to say:

PN19

An employer may require an employee to work reasonable overtime in addition to the 54 hours, the working week.

PN20

And:

PN21

The employee will work overtime in accordance with that requirement.

PN22

And (3):

PN23

The union is party to this agreement or employees covered by this agreement shall not in any way whether directly or indirectly in party to or concerned in a ban, limitation or restriction upon working reasonable overtime including (1) in the overtime policy in accordance with the requirements of the subclause.

PN24

Sir, we submit that again it spells out fairly clearly and quite precisely that the hours of work is a minimum 54 hours. So we say that there is an obligation by the employer unless there is other unforeseeable circumstances which I will come to, that the employer has an obligation to pay the 54 hours.

PN25

THE COMMISSIONER: And what do you say was paid in the week that is in question?

PN26

MR SAUNDERS: The week in question they paid nine hours on the Thursday, they paid eight hours on the Friday, they paid no hours on the Saturday and they paid no hours on the Monday, 14 July. Sir, if I can stay with that clause and if you go to subclause 4, I will touch on it now:

PN27

The employee shall not without good reason and without a minimum of one hour's notice -

PN28

And it prescribes between Monday and Friday and two hours Saturday and Sunday:

PN29

- withdraw a roster for additional overtime.

PN30

And we say that that clause doesn't prescribe for production under these circumstances and I will go to the reasons why. And (2), if they rely on (2) it goes to say:

PN31

The employee may withdraw overtime without notice in the case of industrial action which affects the project. Industrial action shall include bans, limitations or any other form of industrial restriction.

PN32

Sir, I would say to you that again they can't rely on that clause to the extent that even though there was a stoppage by a contractor on the particular project, that stoppage in all sense and purposes was a stoppage over safety issues. So if you go to clause 12 of the agreement: Contractor Service and subclause 5: Eligibility for Payment of Wages. And it then says (a):

PN33

The employer is entitled to deduct payment for any day upon which an employee cannot be usefully employed because of industrial action by any other unions party to this agreement or by any other association or union.

PN34

Fairly broad:

PN35

The employer shall be under no obligation to pay for any day not worked upon which an employee is required to present for duty except when such absence is due to approved paid leave to which the employee is entitled under the provisions of this agreement.

PN36

But if you go to subclause (b), it makes it fairly clear:

PN37

Subject to the provisions of the Occupational Health and Safety Act, an employee shall have the right to be paid for any time they are not ready, willing and available to follow all lawful directions of the employer or carry out all duties that they are capable of performing.

PN38

Under these circumstances there were two safety concerns. One was BMJV safety concern and that was the dispute or the catalyst that caused the ablutions not to be hygienic. The employer agrees with the employees or CBI, Downer Ralph M. Lee and United KG agree that there is a safety problem. They put into effect that there is a safety problem and recognised that they had to move the workers from the project so that their health could be preserved or protected. And on that basis clearly they didn't the right to deduct money because the agreement is fairly clear that they can't deduct money or haven't got the facility to be able to deduct money if it is an occupational health and safety dispute. Because (b) says "subject to the provisions", and "subject to", we submit, qualifies (a), subclause (a), that the employer had agreed that there was a safety dispute.

PN39

Sir, if you go to the Grievance Procedure, which is clause 14 of the project. Part of the Grievance Procedure is this: in two areas, if you go to (i) and it says:

PN40

There will be no stoppages, strikes, lock-outs or any other bans, limitations performance of work.

PN41

I would say that there would be no stoppages, strikes or any other bans and limitations performance of work would probably apply in the general sense to employees on the project. Lock-out of course will apply to employers. I haven't seen, I'm not aware that the term "lock-out" applies to employees. In fact, in all sense of probability that lock-outs applies to employers. Now the Grievance Procedure says to this degree that workers are compelled to the extent that the Grievance Procedure goes that they won't have stoppages, strikes, bans or limitations. But also the Grievance Procedure says that the employer can't lock-out and we submit the employer in a limited way locked out employees between the dates of 10 to 14 July.

PN42

We also go to note (3) of the Grievance Procedure, sorry, note 3 of the Grievance Procedure. It says this:

PN43

The employer will ensure that all activities during the operation of the procedure in accordance with safe working practice are consistent with the process of continuous improvement.

PN44

And the appropriate words there of course, is "accordance with safe working practices". I would have to say to you that we had no dispute with the employers over the handling of the safety dispute. In fact they recognised there was a safety problem and in turn they told workers to make themselves safe and leave the project and in doing so the employer fulfilled his obligation to that extent. But the employer then in our submission is that they went beyond that when they breached the minimum clauses of the Hours of Work. And it is our submission that the employer did have the obligation to make the job safe and if he couldn't make the job safe he would have a responsibility to send those workers to a safe area which it did. But then to then deduct wages, we say that there is not an ability under this agreement in respect of the 54 hour provision, that it can deduct wages under those circumstances.

PN45

Now in putting that to you, sir, there was two areas I said I would come back to. One was - I suppose the question is, if the unions and the employer that is BMJV, had an agreement to resolve the dispute on 10 July why would the problem still exist say on 11 July and still continue on through to the 14th. Sir, what happened on the 10th was an agreement was reached between BMJV, an official of the AMWU and an official of the Australian Workers Union that they would institute different start hours and that they would advise the client, Kelloggs' Joint Venture that was their intention because they believed that would fix the safety problem that they had.

PN46

At approximately 4.20 that afternoon I was contacted by Mr Peter Kelly who was at that particular time the person who looked after the industrial relations on the site. Mr Kelly informed me over the phone that even though he had given the commitment to the organisers that they would change the starting times, to the effect that they would start 15 minutes earlier and cease 15 minutes earlier than the normal knock off time, that they had been instructed by Kelloggs' Joint Venture that they couldn't do that and that Kelloggs' Joint Venture had overruled them even though they had put in writing to Kelloggs that that is what they intended to do.

PN47

So the fix-up of the first dispute became un-fixable. And to me I would have to say that if a contractor submits a position on occupational health and safety to resolve an issue between their workforce, it is very uncommon for a principal contractor or client to overrule that and, of course, it did. So in turn where the matter should have been resolved no later than say at 6.30, 7 o'clock on Friday 11 July at the worst, when it was taken back to the workforce, then on 4 o'clock on Thursday 10 July, the contractor had made a commitment and an agreement and had been instructed by the client that he couldn't institute that safety measure. So in turn the ablution blocks weren't cleaned and it affected the rest of the contractors on the project.

PN48

Now on 10 July, fortunately or unfortunately, I happened to be up here that day and there was - we understood that there was going to be a problem with the ablution blocks as it was now one and a half days at least since they had been cleaned and that again it had been recognised by not just the employees but the contractors that there was an occupational health and safety problem and that there was discussion on how that should be handled. And the discussion went to the extent that they send in staff people to do the cleaning. There was the discussion of contract employees to go and clean the ablution blocks and there was discussion about sending others, whatever "others" may be. And we found out what that was, in their term "contract cleaners" who don't reside on the project, to clean the ablution blocks.

PN49

After that discussion we realised that it may not be a safety dispute but it be an industrial dispute and hence there was. So that wasn't acceptable. So it was agreed that workers would be sent off the project for safety reasons. We were advised that they would be paid for those times, or at least on the Thursday advised that they would be only paid to 4 o'clock. We indicated at that particular time that first of all there was a safety problem and if there was a deduction of money then we would progress that through the Disputes Procedure and that is why we are here today.

PN50

It was my understanding that at 12 o'clock, the recognition was that workers had to be moved off the project. The practice, if that is the case, then it would be filtered down to the Chamber of Commerce and Industry who reside full-time on the project, who would then notify the contractors to the extent of what is being recommended and suggested and that the contractors would then carry out the appropriate advice to their employees. So at 12 o'clock there was a recognition of a way of handling the safety problem. The Chamber of Commerce then called the contractors together around about half past 12 that afternoon, or it could have been slightly earlier but I would say half past 12.

PN51

And I would have to say to you they procrastinated over the decision which was quite simple, how to administer the evacuation of those areas that were unsafe. And on two occasions I approached the Chamber of Commerce where the contractors were meeting and suggested that they should initiate an area where workers are released because otherwise workers will take it into their own hands. And that is exactly what happened at United KG, they left over the safety problem prior to being released by their employer. But we say in the same circumstances that they had a genuine safety belief. They were being treated - and it could have been far more severe in their work area than other work areas. I must admit we didn't check that, that is an area where the workers will make that decision if they believe their hygiene is being affected they are entitled to remove themselves from that area.

PN52

Probably the worst part of that was that in seeking advice they also then asked for - the shop steward asked for the organiser, Mr Tony Lovett, to attend the workplace at the lunch break when they knew that the workers would raise their concerns fairly - very highly with their employer and that information or to even try and have the organiser go down and assist in the process, they denied that by not even contacting them. So there was some confusion where workers were saying: where's my organiser, through their delegate and the company not notifying the organiser who happened to be on the project at that particular time and was if I recall at the CBI office area.

PN53

So when it came to United KG, yes they may be seen to be treated or left slightly earlier than the others they had a concern over their safety, they left the project on that basis. And we say that they did so in accordance with the Occupational Health and Safety Act that they removed from the area they deemed to be unsafe the - whether there was alternative work at that part of the project, our submission is around the off plot there was no alternative areas where it would be safe to be able to use the ablution blocks and the employer hadn't suggested any other method of making that area safe. So, in summary the dispute itself was of a safety matter.

PN54

The first one was the BMJV safety dispute, where the employer and the employees and the unions agreed a method of rectifying that safety dispute, they were overridden and in turn let me say that that was reinstituted 3 or 4 days later, slightly modified, but it was reinstituted to the extent that it would have fixed the problem in the first place. It was acknowledged there was a safety dispute between them and Ralph M. Lee, United KG and CBI and that in doing so they directed workers from the project and we say that was a correct way of handling that, that we say that they haven't got the capacity, nor should they have the capacity to be able to deduct money.

PN55

They can't have it on both hands, where they expect workers to work a 54-hour week and if they don't work a 54-hour week, under this agreement, they are penalised, not just by loss of wages, but they also lose, under the clause 4: Special conditions of employment, they also lose - if they haven't had authorised leave, then they also lose 50 per cent of their remaining entitlement under that provision. So that is very clear that if an employee leaves the project without permission, without authorisation, not only does he lose wages, but he also loses an entitlement which is an incentive pay.

PN56

So the agreement itself is set up for a 54-hour week. There are areas which I have read out, such as the withdrawal of overtime, for good and cogent reasons, under clause 19, which the withdrawal of overtime and I have to say to you it is my recollection about the withdrawal of overtime clause, it was put in there specifically to address, it might sound funny, but inclement weather, where the employer could make a decision and wouldn't be compelled to pay workers overtime if it rained on that particular day and it a provision probably peculiar to the North-West of Western Australia. It was never intended to be used for other reasons and of course subclause (2) is quite specific under clause 4, where it says:

PN57

If there is industrial action which affects the project.

PN58

Now, our submission is there was no industrial action. The action was action by Brambles Monadelphous, it was a safety matter, it was being dealt as a safety matter. The resolution showed it was a safety matter and if it had have been left to settle between the employer and the employees, it would have been finalised, at the worst, on Friday, but again other people moved in and even though that employer agreed to a method of fixing the safety problem, they weren't entitled to do so.

PN59

Sir, we went to the grievance procedure and clearly the employer is not entitled to lock out workers under no circumstances, under the grievance procedure and definitely not under the circumstances of where it becomes a matter of safety and of course note 3 in the grievance procedure talks about safe work practices. Under clause 12(v), we say (b) qualifies (a) and it talks about the subject of the provisions of the Occupational, Health and Safety Act and at no time did the employees of Ralph M. Lee, United KG and CBI Constructors, have any bans or limitations on them. They were ready, willing and available to work their prescribed hours, which is 54-hours over that week. If it please the Commission.

PN60

THE COMMISSIONER: Thanks Mr Saunders. Mr Cooke?

PN61

MR COOKE: Thank you sir. The matter we would suggest is a little more straightforward than Mr Saunders has outlined in fact sir. What happened was that on Wednesday, 9 July, in the middle of the day, the work force at Brambles Monadelphous had an unauthorised meeting and they voted to commence industrial action. The - sorry I withdraw that, the meeting may have been authorised, I'm not sure whether it was, or it wasn't.

PN62

MR SAUNDERS: You saw my hand move didn't you?

PN63

MR COOKE: Yes, I did. In any event nothing turns on it. Strike action certainly wasn't authorised. Amongst the Brambles Monadelphous work force, they are a group of employees whose job it is to clean most of the toilets on the site. They don't clean all of the toilets on the site. There is an area known as the "Trunk line on-shore terminal", or "TOT", that is an area within the control of United KG and they in fact are responsible for cleaning the toilets in that area. So - - -

PN64

THE COMMISSIONER: The toots in TOT?

PN65

MR COOKE: The toots in the TOT, indeed sir. So, it wasn't all the site toilets. Most of the site toilets weren't cleaned from the middle of the day on Wednesday the 9th, onwards. The Brambles Monadelphous work force claimed that they had a safety issue. The record shows they didn't, because if they had a safety issue, they wouldn't have had a section 127 order issued against them by Deputy President McCarthy, on 16 July 2003, found at print PR934832. Now, as the Commission is aware the definition of industrial action under section 4 of the Workplace Relations Act, does not pick up genuine, occupational, health and safety issues and the fact of the matter was the unions in the matter, the BMJV matters, Brambles Monadelphous is a known incorporated joint venture of Brambles Australia Limited and Monadelphous Engineering Associates Pty Ltd.

PN66

So the orders - there are actually four orders that issued, because Brambles have employees, some of whom are in the AWU, some of whom are covered by the metal workers and Monadelphous have employees, some of whom are metal workers and some of whom are in the AWU. So there were in fact four orders issued arising out of those proceedings: one of them was against the cleaning employees, who are engaged by Monadelphous Engineering Associates Pty Ltd, but there were also orders issued against the metal workers and against the people covered by the Australian Workers' Union, engaged by Brambles.

PN67

So we say sir, that there is no - the record is such that the fact of the matter is that there was no safety issue between the BMJV work force and its employer. They were not in some safety dispute, they were in an industrial dispute, as defined by the Act and ultimately they were subject to an order under section 127(1) of the Act, which can only be issued in the circumstance of industrial action. So when the BMJV people went on strike, the cleaning of the toilets ceased, as I indicated, in the middle of the day on Wednesday the 9th. Work proceeded as normal the following day - for the balance of that day.

PN68

On Thursday, 10 July, the contractors, being CBI, UKG and Downer RML, had discussions with their employee safety representatives, some of them conducted inspections on the ablutions in their area, to ensure that they were still useable and that was certainly undertaken by CBI. It was undertaken by the safety adviser and safety manager for UKG and it was undertaken by Downer RML. Now, as the day moved on sir, concerns were expressed, sorry there was a belief that the BMJV work force were to meet again the following morning, on Friday, 11 July and that they may have returned to work at that point.

PN69

So, consideration was given in the middle of the day to standing down, or advising - the contractors would advise their employees that they were not required to work for the full day and that they would be paid until 4 pm, and they could go home. There was no concession, we say sir, that the ablutions were not useable, or hygienic, it was simply a preventative decision, in the belief that the BMJV cleaners would return the - or might have returned the following morning and to prevent their ablution facilities deteriorating any further. That was the discussion between the unions and KJV and there was a meeting of contractors convened by CCI at approximately a quarter past 12, to address that issue.

PN70

The contractors considered the position sir and they eventually reached a consensus view that the work force would be advised that they could leave the site as of 2.30, this was about 1.30. There was a need obviously to get buses into the site to transport the great majority of the work force back to their accommodation, so it takes about an hour to get the buses in from Karratha, so they would knock people off at 2.30 pm, and pay them through to 4 pm. And that indeed was what was done by Downer RML and CBI Constructors. In the case of United KG, sir, their employees, at approximately 12.45, commenced leaving the work place and travelling by whatever means available, walking or small site people movers, to the front gate and leaving the site without any agreement to do so by their employer.

PN71

The - when UKG, the senior management of UKG were in a meeting with us at the time, their construction manager found the shop steward and was told that labour had been withdrawn until 7 am, the following morning, when a meeting would be held to determine if the employees would return to work, given that the advice the construction manager, Mr Brunetto, organised buses for the employees to leave the site. So the facts are slightly different for the UKG employees, than they are for the Downer and CBI employees. You see the UKG employees were plainly taking strike action at approximately quarter to 1, on that Thursday, 10 July.

PN72

The CBI and Downer RML employees were sent home as their employer had the right to do under the agreement. The following morning sir, the United KG employees met at the front gate, at approximately 7 am, and determined not to return to work and set down a further meeting to take place on Monday, 14 July. So they had gone on strike the afternoon before and they resolved effectively to stay on strike. The CBI employees and the Downer employees went to work as normal. They met with their management and the issue of the ablutions and the state of the ablutions was discussed.

PN73

At approximately 10 am, in the morning, the employees at Downer and CBI were advised that they were no longer required to be at work that day and that they would be paid for the balance of their normal working hours, or their ordinary working hours, I should say, that day and that overtime on the Friday and the Saturday was withdrawn. Now, in relation to that sir, we say that there was never an agreement that the site was in any sense unsafe, or unhygienic. The work force were sent home and paid for their ordinary hours, indeed on Thursday they were paid for part of their overtime to prevent a further deterioration in the state of the amenities on the site and that is quite within the rights and prerogative of the employer.

PN74

Under clause 19: hours of work, subclause (4): withdrawal of overtime, the employer can under Roman (i) of subclause (4) withdraw overtime by giving notice, Monday to Friday and on Saturdays, Sundays and public holidays, so long as they have a good reason to do so. This certainly constituted a good reason, but even more precisely, in Roman (ii) sir:

PN75

An employer may withdraw overtime, without notice, in the case of any industrial action, which affects the project. Industrial action shall include strikes, bans, limitations, or any other form of industrial restriction.

PN76

Now, plainly what the BMJV employees were doing was a strike, that was in effect the finding of the Commission when they issued a return to work order against the striking employees. The fact that the ablutions were not being cleaned caused the employer to choose to withdraw overtime, on the Friday and on the Saturday and that is perfectly within their prerogative. We do not wish to delve into the merits of the BMJV dispute, that has been the subject of proceedings before Deputy President McCarthy, proceedings that went over 2 days. We do not seek to canvas that.

PN77

We would point out that on the Thursday, when Mr Saunders indicated in his submissions that by that point it had been 1-and-a-half days since the ablutions had last been cleaned, really they were not cleaned for half a day on Wednesday and by the time employees were sent home on Thursday, that had been another half day, so effectively it had been one day since they had not been cleaned. In relation to the UKG employees, sir, there were - part of their ablutions were under their own control and they were being cleaned, in the trunk line and the TOT area sir. And so for Mr Saunders to suggest that they had some special need to cause them to leave the site, over safety, is not the case.

PN78

Under the Occupational, Health and Safety Act those employees engaged in the trunk line on-shore terminal area, could have had no serious dispute, since their ablutions were cleaned all the way through until they left the site. In relation to the balance of the UKG work force, sir, they plainly left the site before their employer could advise them that they were going to be paid for the balance of the day and further to that the following day instead of reporting to work and having meetings with management, as CBI and Downer RML did, they had a meeting outside the gate and never came inside the gate. So that is strike action by anyone's understanding of the concept.

PN79

We say, sir, that in relation to the UKG work force, they went - they decided to go on strike on Thursday afternoon, if they had perhaps been a little more orderly and had followed procedures a bit better, as the Downer and CBI work forces did, they would have too been paid till 4 pm on Thursday afternoon and could have been paid their 8 hours on the Friday, but they chose not to do so and their decision, but they need to live with the consequences of that. In relation to the CBI and Downer RML work force, sir, they had 1 hours overtime withdrawn from them on the Thursday and they had 1 hours overtime withdrawn on the Friday and 5 hours on the Saturday, but they had the advantage, I guess, of not having to work for most of Thursday afternoon.

PN80

They didn't have to work for most of Friday and they were paid their ordinary hours, notwithstanding the requirement of the employer that they not attend at work. In relation to their overtime, there was plainly the facility under the agreement to withdraw overtime in the case of industrial action and indeed that is nothing more or less than the employers did on this occasion. If it please the Commission.

PN81

THE COMMISSIONER: Mr Cooke, you said earlier that the employees were sent home as a right, where does that right emanate from?

PN82

MR COOKE: Sir, we would say Common Law, the employer has the right to - as long as the employer is prepared to pay people their ordinary hours, we say that that employer doesn't have to require them to attend at work on odd occasions. I think the case law holds that if you are an actor or an opera star, or something of that ilk, you might have a right to be given work, because that is how you maintain your public persona. I think for the work force, or for most of us in the work force, sir, if the employer chooses not to have us at work and is prepared to pay us our ordinary hours, then that is the employer's right.

PN83

THE COMMISSIONER: I hear what you say. Mr Saunders is arguing in this matter that scheduled overtime is part of the normal working week though in this case, notwithstanding the fact that the employer does have the right to withdraw overtime pursuant to clause 19.

PN84

MR COOKE: Well we agree with the contention sir that the project working hours are as set out in 19(2) and that 54-hours is the normal working week. We wouldn't quibble at that, but we say that that normal working week is made up of ordinary hours and overtime. The ordinary hours were in all senses paid for the Downer and CBI employees. The agreement is express that the employer can withdraw overtime, either by notice, having a good reason and we would say they certainly had a good reason on this occasion, or in any event, in response to industrial action, affecting the project, then they can do it without notice.

PN85

Now we didn't go that far in not giving people notice, or - well holding them there till the conclusion of ordinary hours and then telling them their overtime was not going to be required, or worked, the employers took a more moderate position. They gave as much notice as they could to the employees and indeed on the Thursday paid 1 hour of overtime. But at the end of the day the failure of the Bramble - the Monadelphous to resume work on Friday morning, left the employers, when they were told on Friday morning that the employees - the Monadelphous cleaners were continuing their dispute and were not going to meet again until Monday morning, the employers had no real option, other than to pay for the ordinary hours on Friday and withdraw the overtime - the 1 hour scheduled for the Friday and the 5 hours scheduled for the Saturday. As I said the position of the UKG work force was contrary to that of course, because they had gone on strike on the Thursday afternoon and they made no effort to attend at work on the Friday morning.

PN86

THE COMMISSIONER: Thank you. Mr Saunders?

PN87

MR SAUNDERS: Yes sir, just a couple of points. In the matter of orders by Deputy President McCarthy, they were issued against Brambles Monadelphous Joint Venture on 16 July. 16 July was Wednesday, we don't argue - we've got no argument that they were in dispute on 16 July, there is no doubt that they were in dispute on the basis that they used scab labour on the project on the Sunday. It wasn't over the matter of the safety dispute, which had been resolved with their employer again on the Monday, but they used scab labour on the Sunday.

PN88

Which brings me to the area where whether the project was safe or not, whether it was hygiene or not and Mr Cooke's submission was: well, effectively the ablution blocks were okay, it was really only 1 day, there shouldn't be a problem because it was only 1 day, yet workers had been sent from site on the Friday, they hadn't attended work, sorry, they were sent from site at 2 o'clock, or 2.30 on the Thursday. They went back to work on the Friday, they were again sent home on the Friday. They weren't brought to work on the Saturday and they then said that the toilets had to be cleaned by other than the workers who normally clean the toilets, because it wasn't hygienic.

PN89

That was why they brought the other workers in there. So the submissions of Mr Cooke saying: well there wasn't a problem with the toilets, obviously there was, or otherwise you wouldn't use, in our terms, a scab labour. The position of the 127 and again I don't want to delve in what Mr Cooke - if I recall we had a session Saturday morning on the 12th in front of Deputy President McCarthy, if I recall we all wanted to go and watch the football, but we didn't get out till quarter time I think, that the - and there was no 127 orders issued then.

PN90

There is no dispute between ourselves and the employer about as of Monday, through to the whole of the next week, there was an industrial dispute, we are not claiming payment for the industrial dispute, except for on Monday morning, I am instructed that Downers R.M. Lee paid an hour's pay because they went back through the gates. The CBI also went back through the gates on the Monday morning to see what was going on and they weren't paid for that hour and that is part of our submission, they should have been paid.

PN91

And then they withdrew their labour, from that time onwards, there is no claim for non-payment, they were in an industrial dispute over labour being used on the project that shouldn't have been used. Sir, the matter of United KG, touched on it before, United KG withdrew themselves from the project on the basis - and the vast majority aren't in the TOT area, they are up on the off-plots. They withdrew because of a concern over the hygiene of the job, safety of the job and they didn't sit at home, they returned to the job on the Friday morning and they waited to see whether the position of the cleaners had changed, that the ablution blocks were cleaned or not.

PN92

They were advised that the ablution blocks hadn't been cleaned and on that basis they returned home. So as far as United KG were concerned their work force would have returned to work as soon as the hygiene problem had rectified itself. So it is not as if workers went home, stayed at home, didn't make an effort, they turned up to the job, they waited to see whether the cleaners were going to return over their safety dispute, when that didn't happen they knew that their ablution blocks weren't in a safe manner and they returned home. They weren't offered any work Saturday, so they didn't turn up and again they returned to work at the normal start time on the Monday, it was Monday the 14th and again they stayed at the gate, by that stage it had been reported about using scab labour on the job and that the rest of the work force, CBI removed themselves after an hour from being on the job.

PN93

I am advised that R.M. Lee - Downer R.M. Lee did the same thing and there was a mass meeting to the extent that we don't argue that it was safety then, that the toilets had been cleaned and there was a dispute over labour which shouldn't have been used on the project. If it please the Commission, thanks.

PN94

THE COMMISSIONER: Yes, thanks.

PN95

MR COOKE: Sir, just - we can keep replying to each other's replies all afternoon, but I don't - - -

PN96

MR LOVETT: You are not allowed to, are you?

PN97

MR COOKE: Well - - -

PN98

MR LOVETT: You were lucky.

PN99

MR COOKE: Perhaps the man on the Bench will make those rulings Tony. Sir, the position of UKG needs to be just a little more clearly elaborated. The employees went on strike on Thursday afternoon, we say. Out of a work force of approximately 500, there is about 130 of those in the TOT area, so it is not an insignificant number, it wasn't just a couple of stragglers that joined the fray. Approximately 30 per cent of the work force were in the - were amongst that contingent. From Thursday afternoon the UKG work force never went through the turnstiles again, for a week. They didn't go back for a week. They didn't come in on Friday and they didn't come in Monday, but they turned up and went to meetings in the car park outside the site is their doing, but it could hardly be said that they were ready, willing and able to work.

PN100

MR LOVETT: Sir, can I just say in regards to the UKG people, a couple of points that Mr Cooke seems to miss out, he says that they were on strike and that they didn't turn up. They turned up for a meeting on Friday morning where I advised them that their employer had fronted me and said that they would pay them for yesterday with no loss of anything on a return to work this morning. Those people then made the decision, well if the cleaners aren't going to go back what is the good of us going back because we are walking into the same hygiene problem we have had before. So Mr Cooke's theories on strikes are a bit hard as far as I'm concerned on the workers, sir.

PN101

THE COMMISSIONER: Well between the four of you, or the three of you, you have managed to confuse me a bit to the extent that I'm going to await the production of transcript and reserve a decision.

PN102

MR LOVETT: I only said a little bit there, sir, so you can't blame me too much for that.

PN103

MR COOKE: Sir, the company have some - UKG have just passed us a note, they have some difficulty with that submission Mr Lovett just made. The fact of the matter is that if at any time any employee perceived that they had an imminent risk to their personal health or safety then they could have removed themselves from the area. Under the Occupational Health and Safety Act 1984, being the relevant State Legislation and the operation of which is preserved by the operation of the Workplace Relations Act if any employee at UKG believed that there was an imminent risk to their personal health and safety then they could take that matter before the Occupational Health and Safety Magistrate and prove their case and then they would be awarded such payment as they perceived they have lost, or not received.

PN104

But really what Mr Lovett is suggesting is that the Commission ignore the provisions of section 187AA of the Act because really that what that - in part as the UKG workforce are concerned. That is really what it is, it was payment being sought in period - in relation to periods of industrial action and there is no question of the procedures under the Occ Health and Safety Act being followed and it is quite transparent that if people come to a site, do not enter the site but go to a meeting and then determine to go to a further meeting at some point down the track and do not attend at work, we would suggest that that reasonably would suggests that they are engaging in industrial action and certainly engaging in industrial action as set out in subsection 4(1) of the Act. And indeed, sir, in terms of the due process, if they really believed that there was a bona fide health and safety concern then there would be - they have jurisdiction guaranteed through the Occupational Health and Safety Magistrate under the Occupational Health and Safety Act 1984. If it please the Commission.

PN105

THE COMMISSIONER: Yes, Mr Saunders?

PN106

MR SAUNDERS: I don't want to start this up again, but there is a couple of things. Section 19 of the Occupational Health and Safety Act points out:

PN107

The duties of the employers which means they have got have a safe working environment, they have got a responsibility to their employees.

PN108

And at, I think it is section 23; is an obligation on the employee if, I recall if he finds - sees that the job is unsafe then he should remove himself from the workplace.

PN109

THE COMMISSIONER: Maybe you are in the wrong jurisdiction?

PN110

MR LOVETT: I don't think so, sir. In the Magistrate's Court we would be here for ages but it was raised about the Industrial Relations - Workplace Relations Act. Sir, there is other Acts that do apply and just on that, if a person believes it was unsafe prior to leaving that work area, that he believes it is unsafe, and has no knowledge that the hazard or the problem has been fixed, in fact is advised that it has not been fixed, the employee has an obligation not to go back into that workplace until it is fixed and that is all that the United KG people are doing.

PN111

They - they had decided, and rightly so, that they had a right to withdraw from the unsafe work area. They were waiting for the employer to make that area safe and when they turned back to an area at the job, and that doesn't have to be inside the gate, it could be outside the gate, but they had turned up and they were advised that the area that was deemed to be unsafe, and obviously confirmed by that employer and other employers that by sending people home in other areas that they have got an obligation to protect themselves and not go into that area. It is nonsense to say that United KG people should return to work, find out that there is still a hazard, put themselves into a hazard area because that is the obligation, in fact it is quite the opposite. Section 19 of the Act is quite specific of the employer's duties, if it please the Commission.

PN112

THE COMMISSIONER: Thank you. As I have indicated I'm going to reserve a decision in this matter. Thank you.

ADJOURNED INDEFINITELY [2.43pm]