C2003/5682, Transcript of Proceedings [2003] AIRCTrans 4324 (30 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 10569
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2003/5682

BEHMER AND WRIGHT PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99 of the
Act of a dispute re bans and limitations
imposed on Caulfield Grammar Senior School
Project and Loch Avenue, Caulfield North

MELBOURNE

11.16 AM, FRIDAY, 12 SEPTEMBER 2003

PN1

MR W. WEST: I am from VECCI on behalf of the company, Behmer and Wright and with me MR B. BEHMER and MR T. WRIGHT.

PN2

MR F. DOYLE: I appear for the Construction and General Division, CFMEU.

PN3

THE COMMISSIONER: Yes, Mr West, tell me about it.

PN4

MR WEST: Thank you, Commissioner. Commissioner, this is a dispute that has evolved on the Caulfield Grammar School site, Loch Avenue, Caulfield, and if I just go over a bit of the history that have led to us being here this morning. The project in question was commenced by Van Driel. They were placed in liquidation sometime in May 2003. The project then went out for tender, select tender, and Behmer and Wright were awarded the project. Now before they were awarded the project the union had contacted the company and said, and had made certain demands - number 1, that the sub-contractors would be paid all moneys owed by the former builder and that the previous shop steward/OH&S representative and peggie would, that it mean that he be employed.

PN5

THE COMMISSIONER: So what was the demand? The shop steward - - -

PN6

MR WEST: The shop steward and OH&S rep and - - -

PN7

THE COMMISSIONER: These are three people, are they?

PN8

MR WEST: Well, no, shop steward/OH&S rep and the peggie be employed.

PN9

THE COMMISSIONER: That delightfully-named creature who I am sure harks back to a very efficient migrant at some stage in the past. Yes, go on.

PN10

MR WEST: The company had - because of some perceived problems that have occurred in the past, the company did not wish to, as is their right, to employ the shop steward/OH&S representative that was on the job previous to them taking over the tender. The project commenced on and around the 25th - - -

PN11

THE COMMISSIONER: What about the peggie?

PN12

MR BEHMER: No, that demand was dropped.

PN13

MR WEST: It was dropped.

PN14

THE COMMISSIONER: Yes.

PN15

MR WEST: So the project - - -

PN16

THE COMMISSIONER: So the demand for the peggie was dropped but Behmer and Wright declined to take on the shop steward/OH&S rep nominated by the union?

PN17

MR WEST: Yes.

PN18

THE COMMISSIONER: Yes.

PN19

MR WEST: That is correct. So the project commenced on or around 25 August and the company had its own personnel on site and they elected their own OH&S representative by the men on site at that time and indeed, Commissioner, there is here the election of that OH&S rep. I have only got one copy.

PN20

THE COMMISSIONER: This is an OH&S rep - - -

PN21

MR WEST: Yes.

PN22

THE COMMISSIONER: - - - as opposed to a shop steward?

PN23

MR WEST: Yes.

PN24

MR BEHMER: Correct.

PN25

MR WEST: So - - -

EXHIBIT #A1 NOTE OF A MEETING OF 29/08/2003 TO ELECT HEALTH AND SAFETY REP AT CAULFIELD GRAMMAR, LOCH AVENUE, NORTH CAULFIELD

PN26

MR WEST: Post that date, Commissioner, Mr Doyle, representing the union, arrives on site and places certain demands on the company that they - - -

PN27

THE COMMISSIONER: What date did that happen?

PN28

MR WEST: I haven't got that date, to be quite frank with you.

PN29

THE COMMISSIONER: That is all right. So after 25 August - - -

PN30

MR WEST: Sorry, after the 29th of the 8th when the election - - -

PN31

THE COMMISSIONER: After 29 August - - -

PN32

MR WEST: Yes, there was - Mr Doyle, representing the union, arrived on site and made demands on the company that the ex-shop steward/OH&S rep, Mr Peter Thomas, be employed. The company - - -

PN33

THE COMMISSIONER: That is Peter Thomas, is that right?

PN34

MR WEST: Yes, Peter Thomas. The - - -

PN35

THE COMMISSIONER: He be employed in what capacity?

PN36

MR WEST: Well, to be employed as shop steward/OH&S - to be employed as a labourer.

PN37

THE COMMISSIONER: Yes, right.

PN38

MR WEST: The company says no but the person in question, Mr Thomas, arrived on site every day, wandered around the site, sat in the sheds, read the paper, used the telephone to contact the union, contacted certain sub-contractors, spoke openly to them and was being reasonably disruptive to the site. In fact, he had no right to be on the site.

PN39

THE COMMISSIONER: Yes.

PN40

MR WEST: The company asked the person in question to leave the site, which he refuses, and indeed the company then served the person in question, Mr Thomas, with a solicitor's letter asking him to leave the site. On or about 3 September there was a safety dispute on the site which was then directed to the Victorian Building Industry Agreement Disputes Board and at that time there were a ban on some of the works in the basement. Those bans were lifted to have the Disputes Board hearing. Then on 5 September the union takes the company to the Disputes Board with the demand that they employ the said person, Mr Thomas.

PN41

At those two hearings there were certain undertakings that were, that the Disputes Board had made and one of them was that the management would review the person's job application and advise the union in a timely manner, acknowledging that they would form an opinion on the job application and giving him a chance to state his case and if that was - if that indeed led to employment then the worker, if employed by the company, would contribute - or these are the words of the Disputes Board:

PN42

...contribute to the development of the project in an honest and diligent manner.

PN43

And then if the worker failed to contribute in that manner the company could take it back to the Disputes Board within four to six weeks. The company reviewed the job application, Commissioner, and took the opinion that it did not want to employ the said person and indeed did not. At that time there was work to be done on the site with the pre-cast. There was a number of threats made by the union that don't bother turning up on the day because there will be bans and limitations on or there could be pickets on the job.

PN44

So in effect a number of times when pre-cast concrete deliveries were to be made they didn't arrive because the company's who were supplying the pre-cast were worried that it would be a waste of time and, you know - or did not turn up. Yesterday, on the 11th, there was a picket line placed on the entrance into the school by the union and approximately 10 people were on the picket line and are still on the picket line today. The access is blocked and in effect none of the workers have crossed the picket line and indeed no work has taken place yesterday or today.

PN45

THE COMMISSIONER: Yes, yes. Is the company considering lodging a section 127 application in respect of this matter, Mr West?

PN46

MR WEST: Yes, yes, Commissioner.

PN47

THE COMMISSIONER: Yes.

PN48

MR WEST: But we are here in the true sense that we are trying to resole this issue.

PN49

THE COMMISSIONER: Yes. I am just wanting to understand what it is that the company has got in mind and I want the union to understand what it is that the company has got in mind.

PN50

MR WEST: We are certainly not - we are not here to - we are here in good spirit to settle this dispute but if it can't be settled today there will be a section 127 lodged either this afternoon or on Monday. We don't want to go down track, Commissioner. We would like to settle it today but if the union places us in an unenviable position we will need to do that.

PN51

THE COMMISSIONER: Yes.

PN52

MR WEST: I mean, in effect there is secondary boycotts on the job so, you know, we are really placed in an unenviable situation where we need to get people back to work.

PN53

THE COMMISSIONER: Yes. Is the company considering applying for a certificate under section 166A?

PN54

MR WEST: Commissioner, if that is - if the section 127 is granted that could flow.

PN55

THE COMMISSIONER: Yes, all right, fine. Is that all, Mr West?

PN56

MR WEST: I think so at this stage, Commissioner.

PN57

THE COMMISSIONER: Thanks very much, yes, fine. Mr Doyle.

PN58

MR DOYLE: Mr Commissioner, we rang Mr Brett Behmer prior to Behmer and Wright signing on for the project and the phone call was essentially a request from the union - not a demand from the union, but a request from the union - regarding the position of a peggie and OH&S representative. We have later found out the peggie's position, in fact, was not a full-time position on the job and that no Van Driel employee had been there full-time, in a full-time capacity. We felt that it was inappropriate thereafter to request Behmer and Wright to pick up a peggie who hadn't been on the project full-time and we requested that Behmer and Wright would see to interview Peter Thomas who had been elected OH&S and shop steward for the CFMEU and had played that role on the project.

PN59

Unfortunately after some months on the project it is fair to say that we believed that the illness of one of the principal personnel with Van Driel had led to a situation whereby there was a crisis of confidence with the banks and unfortunately a well-respected company in their industry who had been around for in excess of 40 years went into receivership. As the Commission may or may not be aware there is a custom and practice in the industry whereby we believe that it is fair and reasonable to expect the sub-contractors who have made a contribution to the project to be able to continue on that project with the new building company.

PN60

The purpose of my phone call to Brett Behmer was essentially for the union to be able to discuss the history of the project; in no way to demand anything from Behmer and Wright but purely to give them some history of the project prior to their involvement and also to indicate to them the fact there had been an election of our OH&S rep on the project and as is custom and practice we would like that person to be considered for employment by the company and not to be disadvantaged during the process.

PN61

We have had a number of discussions and a number of meetings. There were still differences between the parties and at a meeting some weeks ago I indicated to Behmer and Wright that we were prepared to involve the Victorian Building Industry Disputes Board, an acknowledged means in the industry, to try and participate and resolve the issue between the parties.

PN62

THE COMMISSIONER: Yes, sorry, Mr Doyle. Mr West didn't inform me whether there is any agreement in place in respect of this workplace. Is there an agreement in place between CFMEU and Behmer that applies?

PN63

MR DOYLE: My understanding, Mr Commissioner, in fact that they have not signed a current enterprise agreement in the industry but they have signed the previous one and there will need to be discussions in the next few days.

PN64

THE COMMISSIONER: But is there an agreement - is that agreement still on foot?

PN65

MR DOYLE: Well, my understanding, Mr Commissioner, that the previous agreement is in place until a new agreement is reached.

PN66

THE COMMISSIONER: Yes, all right. I might hear from Mr West in due course, when you have finished, about what the situation is with regard to the agreement. Thanks. Yes, go on.

PN67

MR DOYLE: We notified the Disputes Board - we asked the Disputes Board actually to come out on site at Caulfield Grammar School and we requested the full Board's participation on the site. That was to take place on 2 September. I went down on the site prior to that and had discussions with an employee of Behmer and Wright, Geoff Beech, to explain to him about the history of the project and about the continuing discussions that were taking place between the union and Behmer and Wright. I asked him that in the interim that it would be inappropriate - the union felt it would be inappropriate for any election to take place in relation to a delegate of OH&S until such time as the Board had a time to deal with the issue.

PN68

Geoff Beech gave the commitments to me personally that in fact he would not put his hand up for any position in the interim. On Friday morning on the - - -

PN69

THE COMMISSIONER: This is the 29th, is it?

PN70

MR DOYLE: - - - 29 August, after an election taking place on the project, I did visit the project with Peter Thomas. At my previous visit to the project there was one employee; no other employees there. When I had discussions with our members on site they had said to me that they had asked about Peter Thomas, asked about where he - if in fact he was working and why was he not on the project. I informed the workers about the - at the earliest opportunity I could because they were only on the job in the last day or so - I informed the workers about the state of play, about discussions with the builder, about Geoff Beech's commitment to me and the commitment to the union and about the Victorian Building Industry Disputes Board coming on site on that Tuesday to deal with the issue.

PN71

It was then, Mr Commissioner, that the men indicated that they wanted to withdraw their support for Geoff Beech on the basis that the information provided to them and they felt that they should have been informed because - from Geoff or from Behmer and Wright about what was occurring and when they were informed about what was occurring they felt - there was two resolutions passed. One resolution was that the support would be withdrawn in the interim from the OH&S representative, Geoff Beech, and another resolution was passed that they support the union's continuing discussion and negotiation of the position of Peter Thomas and the involvement of the Board.

PN72

THE COMMISSIONER: Yes. Do you have documentation of that, Mr Doyle?

PN73

MR DOYLE: Yes.

PN74

THE COMMISSIONER: Yes. If you tender that I will mark it R1.

EXHIBIT #R1 DOCUMENT RE TWO RESOLUTIONS

PN75

MR DOYLE: You will see, Mr Commissioner, that - - -

PN76

THE COMMISSIONER: Do you want a copy of that - - -

PN77

MR WEST: Commissioner, yes. We haven't seen that.

PN78

THE COMMISSIONER: Yes, all right. Well, we will give you a copy in due course.

PN79

MR WEST: Okay.

PN80

THE COMMISSIONER: Yes, thanks.

PN81

MR DOYLE: You will recognise, Mr Commissioner, that this in the - the documents are in the same hand, written by Geoff Beech. So in fact that decision essentially has been rescinded and that has actually been acknowledged by the Worksafe Inspector, Peter Raymond(?), where he has refused to recognise both Peter Thomas and Geoff Beech in the interim until such time as the issue is resolved from the parties. The Disputes Board came onto the site on Tuesday and came out with the recommendation Wednesday, 3 September.

PN82

Mr Commissioner, because I have got notified of this hearing pretty late, Mr Commissioner, we have been unable to photocopy some documentation.

PN83

THE COMMISSIONER: Indeed. Yes, I quite understand. We will tend to that in a moment.

PN84

MR DOYLE: Well, I would like to tender that decision and recommendation from the Board.

PN85

THE COMMISSIONER: Yes. Tell me about it in the meanwhile.

PN86

MR DOYLE: Essentially, Mr Commissioner, the recommendation is that:

PN87

It is therefore the recommendation of the Board that the occupational health and safety delegate central to this dispute be offered employment on the project as it appears that he has been clearly disadvantaged in the overall scheme of operations.

PN88

THE COMMISSIONER: What was the date of that recommendation of the Disputes Board?

PN89

MR DOYLE: The date was 4 September.

PN90

THE COMMISSIONER: Yes.

PN91

MR DOYLE: That is their position, Mr Commissioner. We feel that - - -

PN92

THE COMMISSIONER: So what you are seeking is the compliance of the company with the Disputes Board's recommendation. Yes, all right. Thanks very much. Yes, I might just ask you, Mr West, first of all what is the situation with regard to the agreement and then what is the company's view with regard to that recommendation from the Disputes Board.

PN93

MR WEST: Commissioner, the company has an agreement that has expired. The company is quite happy - - -

PN94

THE COMMISSIONER: When you say it has expired, it remains on foot unless it is otherwise terminated.

PN95

MR WEST: Of course; of course, yes.

PN96

THE COMMISSIONER: So this is an agreement which is still on foot, is that right?

PN97

MR WEST: Yes, yes.

PN98

THE COMMISSIONER: Does it apply to this site until it is terminated?

PN99

MR WEST: Yes.

PN100

THE COMMISSIONER: Yes, all right.

PN101

MR WEST: Yes. And we are not arguing that, Commissioner.

PN102

THE COMMISSIONER: Do you have a copy of that agreement?

PN103

MR WEST: I haven't, Commissioner, because - - -

PN104

THE COMMISSIONER: What is the agreement called?

PN105

MR WEST: It is a pattern agreement called, what, the Behmer and Wright - - -

PN106

MR BEHMER: Behmer and Wright and CFMEU.

PN107

MR WEST: CFMEU Collective Bargaining Agreement. And, Commissioner, the company has not argued that the agreement does not apply and indeed - - -

PN108

THE COMMISSIONER: And you are complying with the disputes resolution provisions of that agreement, I take it, at the moment, is that correct?

PN109

MR WEST: Yes, yes.

PN110

THE COMMISSIONER: All right, fine.

PN111

MR WEST: And indeed, Commissioner, we are quite happy to sit down with the union at a date asap and start negotiations for a new agreement.

PN112

THE COMMISSIONER: Yes. I am not - we are not here to talk about the new agreement. I am marking the document from the Victorian Building Industry Disputes Board as R2.

EXHIBIT #R2 RECOMMENDATION FROM VICTORIAN BUILDING INDUSTRY DISPUTES BOARD DATED 03/09/03

PN113

THE COMMISSIONER: You have a copy of that, do you, Mr West?

PN114

MR WEST: I have, Commissioner.

PN115

THE COMMISSIONER: Yes. Now what is your view with regard to the status of that document?

PN116

MR WEST: Well, Commissioner, there is two decisions from the Disputes Board - one, 3 September which Mr Doyle indeed read out and that is true. On 3 September the Board said:

PN117

Having regard for all the evidence presented the Board is of the view that convention, custom and practice was departed from that site. It is therefore recommended that the health and safety delegate central to this dispute be offered employment.

PN118

THE COMMISSIONER: Yes.

PN119

MR WEST: But, Commissioner, on 5 September, two days later, again there was a hearing before the Disputes Board and it says:

PN120

Following a free and honest inter-party exchange of views (including a personal reference by the previous employer attesting to the bona fides of the worker in question) the following issues were agreed upon.

PN121

And the first one was, which I alluded to in my opening statement:

PN122

That management would review the person's job application and advise the union in a timely manner (management acknowledged that they had formed an opinion on the job applicant without having given him a chance to state his case).

PN123

And then if, indeed, the company reassessed his application and then took him on there would be certain criteria to be attached to it.

PN124

THE COMMISSIONER: Yes. Well, look, I mean, the unsatisfactory position that I find myself in is the parties have gone to the Disputes Board, as they are entitled to do under their agreement, I take it. I take it that the agreement provided for the twofold option of going to the Disputes Board and/or coming to the Commission, is that right, as is common in these agreements?

PN125

MR WEST: Well, on some occasions, yes, Commissioner.

PN126

THE COMMISSIONER: Yes, yes, and the parties have gone to the Disputes Board and the Disputes Board has made a recommendation on 3 September that the company take him on and then you are saying that then there was a further process in the Disputes Board where somehow or other there was an agreement, which I don't think Mr Doyle is agreeing to, that somehow or other that recommendation would be superseded by this process whereby the company wouldn't have to take Mr Peter Thomas - is that right?

PN127

MR WEST: That is right.

PN128

THE COMMISSIONER: - - - on. All they would have to do was give him an opportunity to state his case and that the company - the company has actually done that and decided not to take him on. I am left wondering what is the status of the Disputes Board's recommendation of 3 September and wondering why the Disputes Board wouldn't have to actually further consider the matter and consider the status of its own recommendation. If the parties go down one dispute resolution path then I wonder why they shouldn't be exhausting that process. I simply want to state that on the record because you have been off in one dispute resolution forum and then you, you know, come over here for whatever reason but I am left with, if you like, an incomplete dispute resolution process and the outcome of that.

[11.43am]

PN129

I mean, it is absolutely clear on 3 September that the Disputes Board recommended Mr Thomas' engagement. I am therefore trying to understand what the status of that recommendation is and where that leaves the parties. What is your view on that, Mr West?

PN130

MR WEST: Commissioner, I am at a disadvantage because I wasn't at either of the two Disputes Board hearings.

PN131

THE COMMISSIONER: Yes.

PN132

MR WEST: But I think the decision on 5 September leaves the - - -

PN133

THE COMMISSIONER: Well, it is not a decision.

PN134

MR WEST: Well, sorry, recommendation.

PN135

THE COMMISSIONER: Yes. It is the parties have stated that is what they propose to do. Is that not right?

PN136

MR WEST: Yes.

PN137

THE COMMISSIONER: And where was Mr Doyle - where was the union in that process of 5 September, Mr Doyle?

PN138

MR DOYLE: Mr Commissioner, we were present at the Disputes Board.

PN139

THE COMMISSIONER: Yes. On 5 September?

PN140

MR DOYLE: On the 5th. On the basis - - -

PN141

THE COMMISSIONER: And what do you say the outcome of that process was?

PN142

MR DOYLE: It is very clear in our minds and in the minds of the Board. In fact, we have a position, Mr Commissioner, that the man in question, Peter Thomas, has not even had the opportunity for an interview with this company.

PN143

THE COMMISSIONER: So what you say is that the company has not actually complied with the outcome of the 5 September meeting, is that correct?

PN144

MR DOYLE: Well - - -

PN145

THE COMMISSIONER: You say it hasn't complied with the recommendation of 3 September and it hasn't complied - whatever the status of what was said on 5 September, you say the company hasn't complied with it?

PN146

MR DOYLE: Yes, Mr Commissioner.

PN147

THE COMMISSIONER: It hasn't interviewed Mr Thomas?

PN148

MR DOYLE: And has refused to abide by the recommendations set down - - -

PN149

THE COMMISSIONER: Of 3 September?

PN150

MR DOYLE: - - - on the 3rd.

PN151

THE COMMISSIONER: Yes, all right.

PN152

MR DOYLE: In discussions with the union after the recommendation they clearly stated in their own office, in discussion with myself and themselves, they have clearly stated that they would not be honouring the recommendation and that, Mr Commissioner - - -

PN153

THE COMMISSIONER: When did that happen?

PN154

MR DOYLE: A number of days after - a number of days after that - - -

PN155

THE COMMISSIONER: After the 5th?

PN156

MR DOYLE: After the 5th.

PN157

THE COMMISSIONER: Yes, all right.

PN158

MR DOYLE: Yes, and could I just say, Mr Commissioner, that the decision of the Disputes Board is on the notice board on the building site. The men continued to work on the site. Peter had not been disruptive on the site, he was purely there, you know, waiting the Disputes Board's recommendation. The recommendation has been made, that decision has been posted on the notice board and the men are very concerned that there had been no action on the job prior to the Disputes Board getting involved and the recommendation was on the Friday, on the Friday, the 29th, that work would continue.

PN159

That the men obviously withdrew their support as far as the election of Geoff Beech was concerned but they continued to work in the acknowledgment that the Disputes Board were going to be there on Tuesday and both parties were working their way through the process. They were very concerned however, Mr Commissioner, that when we worked through the process and the recommendation came down that that in fact had been ignored by the company.

PN160

THE COMMISSIONER: Yes. So, Mr Doyle, what is happening there at the site? Are there bans in place at the site?

PN161

MR DOYLE: Well, Mr Commissioner, what we are saying is that our members are really concerned that the recommendation has not been implemented on the site. It is fair to say that the men, I am aware, have gone elsewhere in the industry.

PN162

THE COMMISSIONER: Yes, all right. Yes, Mr West.

PN163

MR WEST: Commissioner, there is a picket line on the job from yesterday and today which has ceased work for yesterday and today.

PN164

THE COMMISSIONER: Yes.

PN165

MR WEST: But, Commissioner, if I just take you to the Disputes Board decision again, if you have it?

PN166

THE COMMISSIONER: Well, this is document R2?

PN167

MR WEST: Yes.

PN168

THE COMMISSIONER: Yes.

PN169

MR WEST: Which is 5 September.

PN170

THE COMMISSIONER: No, I am looking at the document of 3 September.

PN171

MR WEST: Okay. Commissioner, I can - - -

PN172

THE COMMISSIONER: Can you tender then the document on 5 September?

PN173

MR WEST: Yes, I can.

EXHIBIT #A2 DOCUMENT FROM VICTORIAN BUILDING INDUSTRY DISPUTES BOARD DATED 05/09/03

PN174

THE COMMISSIONER: Just give me a moment to look at it.

PN175

MR WEST: Certainly.

PN176

THE COMMISSIONER: Well, I note at the end of that it says:

PN177

I further urge the parties to urgently avail themselves of the Disputes Board's services in the event of a breakdown in industrial relations.

PN178

MR WEST: Commissioner, if I may just draw your attention to number 1?

PN179

THE COMMISSIONER: Yes.

PN180

MR WEST: And it says that:

PN181

They agree that management would review the person's job application and advise the union in a timely manner.

PN182

THE COMMISSIONER: Yes.

PN183

MR WEST: It certainly did that. It reviewed the application. And if, indeed, and the Disputes Board hearing recommendation was, that if it did employ the person then 2 and 3 would come into play.

PN184

THE COMMISSIONER: Yes, well, I note that it then says:

PN185

Management acknowledged that they had formed an opinion on the job applicant without having given him the chance to state his case.

PN186

MR WEST: Well, they are - Commissioner, they are the words of the Disputes Board but the first sentence is quite clear. I mean, they did re-assess and review the person's application.

PN187

THE COMMISSIONER: Yes, sure, sure. Look, what I am pointing out is simply that the parties have both gone to the Disputes Board and sought the assistance of the Disputes Board to resolve the dispute. The Disputes Board has actually made a recommendation that the company employ Mr Thomas on the 3rd and then on the 5th has recorded some agreement between the parties which Mr Doyle says doesn't reflect the agreement between the parties and I am simply pointing out the difficulty that comes from swapping from one dispute resolution forum to another midway through the process.

PN188

But, I mean, you are entitled to bring your application here but what I see before me is, if you like, an imperfect pursuit of the disputes resolution process that you were following so that the thing ends up here, I suppose, because the company is not happy with the situation as a result of the Disputes Board's earlier involvement. Is that not right?

PN189

MR WEST: And, Commissioner, there has been quasi - well, quasi - there has been bans and limitations on up until yesterday.

PN190

THE COMMISSIONER: Yes.

PN191

MR WEST: There is a picket line on yesterday. I mean, where is the company going to go except for relief from the Commission and relief under the Workplace Relations Act. There is a secondary boycott on the job yesterday and today which means there is no work.

PN192

THE COMMISSIONER: Yes. All right, then. Yes, Mr Doyle.

PN193

MR DOYLE: Mr Commissioner, we are prepared to state here fairly frankly that in fact there is no man, no worker, no employee has refused, has been refused access onto the project, has been blocked from gaining access on the project. What you will find, Mr Commissioner, is that there is widespread support from our membership in relation to the plight that Peter Thomas finds himself. I am prepared to say here and now that, yes, the men are very concerned that we have gone to the independent umpire, if you like, in the industry, both parties have gone through that type of dispute settling procedure.

PN194

We are prepared to state here that we will impose no bans, we will impose no picket lines and if the Commissioner would recommend that the Disputes Board would clarify its position - I don't believe that is necessary - but if the Disputes Board started this process, if they were allowed to completely finish this process - - -

PN195

THE COMMISSIONER: Yes.

PN196

MR DOYLE: - - - then we would give the Commissioner and the Commission this commitment that - - -

PN197

THE COMMISSIONER: So the bans would be off, the picket would be off.

PN198

MR DOYLE: Bans would be off.

PN199

THE COMMISSIONER: And you would be back in the Disputes Board. That is what you are putting forward as a proposal?

PN200

MR DOYLE: That is right.

PN201

THE COMMISSIONER: Mr West, what is your view with regard to that?

PN202

MR WEST: Well, Commissioner, to say that the people on site are concerned, there is no one from the site is on the picket line. It is made up of approximately 10 people and no one from the site is there.

PN203

THE COMMISSIONER: Yes.

PN204

MR WEST: There is a car - - -

PN205

THE COMMISSIONER: No, but Mr Doyle is saying the picket will be disbanded and the bans will be, if any, will be lifted on the basis that the Disputes Board be allowed a further opportunity to - and I would have to say I don't, I have to say, Mr Doyle, I don't think it should be allowed much more than one further opportunity to resolve this because it has had - I might say I do actually find it bizarre that the recommendation of 3 September is followed so quickly by the document of 5 September but still I believe you are in an incompletely exhausted dispute process in the Disputes Board and I actually think it is better for the Disputes Board to be allowed to finish its job there.

PN206

And I would be prepared to make those recommendations, Mr West, on the basis that the bans would be lifted immediately. I don't know how quickly that can actually occur. What matters is this job get back on track. That is the crucial thing.

PN207

MR WEST: Exactly, Commissioner, but might I just say that we contend that we have abided by the Disputes Board hearing on the 5th, we have abided by that. Now what happens if we go back before the Disputes Board again on a further date and the Disputes Board comes down with a recommendation - - -

PN208

THE COMMISSIONER: Well, I am not suggesting you are not entitled to be here.

PN209

MR WEST: No, but - - -

PN210

THE COMMISSIONER: You coming here in the Commission.

PN211

MR WEST: I am just saying - - -

PN212

THE COMMISSIONER: Don't misunderstand me.

PN213

MR WEST: But then are bans going to be placed again because the union doesn't get what it wants at a Disputes Board?

PN214

THE COMMISSIONER: I don't think I should ask Mr Doyle to make any predictions and I am certainly not prepared to make any myself. What I do think is - I make absolutely clear, if this had come to the Commission without it going to the Disputes Board I might have taken a completely different view of the thing than the Disputes Board; I might have. I might not have, but I might have. My concern is that in the agreement which is still on foot you have a dispute resolution process and if it is the clause that I am familiar with it entitles the parties to go to the Disputes Board, it entitles them to come to the Commission.

PN215

Given that you have gone to the Disputes Board, and the company has gone to the Disputes Board, and the Disputes Board has made very clear on the 5th that it is willing to deal further with it if a further problem arises, I personally think that is what - well, I can't say personally. I think in my role as a Commissioner here that I am better to let the parties further pursue the dispute resolution in the Disputes Board on one further occasion to attempt to deal with this but only on the basis that any bans and the picket are forthwith removed and disbanded and I am happy to make those recommendations in writing.

PN216

I mean, my - I suppose at this stage - no, my recommendation would be that bans, bans and the picket, be lifted by 1 pm today. That is what I would be inclined to do and I am happy to adjourn for a few moments and to allow you to discuss the matter with your client to see whether that is something which they would be prepared to live with. The fact is that if you go back to the Disputes Board, it is not able to resolve it and if there is further disruption as far as I am concerned if you bring the matter back here, either in this form or in the form of a section 127 application, it will be a sign that you had done all that was incumbent upon the company to do, that your client had done all that was incumbent upon it to do in terms of the dispute resolution process.

PN217

My concern is always to point the parties to honouring their obligations under the agreement, an agreement which they freely made - at least supposedly freely made - to follow particular dispute resolution processes. So how about a I adjourn for a few moments and just let you have a conversation with your member.

PN218

MR WEST: Certainly, Commissioner.

PN219

THE COMMISSIONER: Okay, good. Thank you very much.

PN220

MR WEST: Thank you.

PN221

THE COMMISSIONER: I now adjourn.

SHORT ADJOURNMENT [11.56am]

RESUMED [12.17pm]

PN222

THE COMMISSIONER: Yes, Mr West.

PN223

MR WEST: Commissioner, the company is prepared to take the recommendation that you proposed before and have a further Disputes Board hearing.

PN224

THE COMMISSIONER: Yes.

PN225

MR WEST: What we would like to put on record is that support the recommendation that bans and limitations be lifted you said at 1 o'clock?

PN226

THE COMMISSIONER: 1 o'clock.

PN227

MR WEST: We would also seek from the union an undertaking that they contact - we will also contact, but the union to contact the crane crew which is Conmor and also the pre-cast people which is Shepparton Terrazzo Works Pty Ltd and just inform them that all bans and limitations are lifted because they are concerned about coming from a fair way away.

PN228

THE COMMISSIONER: Yes.

PN229

MR WEST: And with that also, Commissioner, we are - in the true spirit of good faith between the parties - we are happy to interview Mr Thomas this afternoon if indeed Mr Thomas can make himself available and the company will go out to site and hopefully Mr Thomas is there and they will sit down in an orderly fashion and interview the applicant or Mr Thomas for the position and take a no-nonsense, a non-critical result of that - - -

PN230

THE COMMISSIONER: An honest and fair appraisal of his claims for consideration, yes.

PN231

MR WEST: Honest and fair - in the words of - an honest and fair appraisal and we will go from there, Commissioner.

PN232

THE COMMISSIONER: Yes. Mr Doyle.

PN233

MR DOYLE: Mr Commissioner, we will go down on site and meet with Peter Thomas.

PN234

THE COMMISSIONER: Yes.

PN235

MR DOYLE: We have had a barbecue actually in place down there at the entrance of the site.

PN236

THE COMMISSIONER: Yes, I don't - I am reluctant to do anything to disturb people's social lives, Mr - - -

PN237

MR DOYLE: And as we - - -

PN238

THE COMMISSIONER: But if the barbecue could be over by 1 o'clock that would be very good.

PN239

MR DOYLE: We can say that we have recommended the barbecue will be over by 1 o'clock.

PN240

THE COMMISSIONER: Yes.

PN241

MR DOYLE: And we will say to our members, in fact, that - I just want to say clearly here that as far as the union is concerned there is no bans and limitations on the project.

PN242

THE COMMISSIONER: I understand your position on the record, yes.

PN243

MR DOYLE: And I would also state, while I have an opportunity, that Peter Thomas has never been disruptive on the project.

PN244

THE COMMISSIONER: Yes.

PN245

MR DOYLE: One thing does concern me, however, Mr Commissioner, and that would be that there has been a degree of hostility against Peter Thomas to date. He has been asked on a couple of occasions to leave the site without as much as a hearing or an interview.

PN246

THE COMMISSIONER: Yes.

PN247

MR DOYLE: He has also been served with a solicitor's letter and threatened with legal action.

PN248

THE COMMISSIONER: Yes.

PN249

MR DOYLE: I feel it appropriate at this stage - I believe both Mr Wright and Mr Behmer are going down on the site. I am actually due to go down on the site and I would like to just be there as an observer during the course of the interview process. I would just be purely there in that way.

PN250

THE COMMISSIONER: Yes.

PN251

MR DOYLE: I think - I am just reluctant - in an attempt to make sure that we have a smooth transition.

PN252

THE COMMISSIONER: Yes. Mr Doyle, I think it is up to the company. I think we shouldn't complicate this outcome any further than is necessary. I am still waiting for your response to the request for the union's undertaking to contact the two sub-contractors - the crane people and Shepparton Terrazzo people - just to have whatever conversation is appropriate for you to have with them. Are you able to give that undertaking, Mr Doyle?

PN253

MR DOYLE: Yes, I am, Commissioner.

PN254

THE COMMISSIONER: Yes, all right, fine. Look, can I just simply say I think it is up to the employer who they choose to have present in an interview. You, of course - Mr Thomas will be able to report to you afterwards how he feels that process went and of course that matter is, in any event, able to go back to the Disputes Board and that is the subject of my recommendation. What I am trying to do - the additional recommendation I intend to put in is that the parties allow two weeks to get to the end of this process that you are in and that no action be taken by either party.

PN255

Of course, if the company felt that bans and limitations were put in place earlier than the end of that two weeks of course it would then have - and felt that it had exhausted the Disputes Board process, it would have its rights under the Workplace Relations Act. Accordingly, and yet again, Mr West, and through you to the company, you have heard what Mr Doyle has said about the interaction between the company and Mr Thomas. I make no comment on it other than we are in a process of trying to calm a situation down and the best way to calm a situation down is for people to be dealt with fairly and to go away from any process feeling they have been dealt with fairly and given natural justice.

PN256

In any event having heard the submissions of the parties in this matter today I recommend:

PN257

(1) That all industrial action, including bans, secondary boycotts and pickets, if any, in place at Caulfield Grammar Senior School Project, Loch Avenue, Caulfield North, the site, be removed from 1 pm today, 12 September 2003.

PN258

(2) That the applicant and CFMEU refer the issues in dispute between them on one further occasion to the Victorian Building Industry Disputes Board, the Disputes Board, to complete the disputes resolution process the parties have been pursuing in this matter since late August, early September 2003.

PN259

(3) That a period of two weeks be allowed by the parties for exhaustion of the Disputes Board dispute resolution process before either party takes any further action in respect of the matter, provided no industrial action is taken during that period of two weeks until 22 December 2003.

PN260

I thank the parties for their participation in the hearing today and I wish both parties well in the further resolution of this matter through the Disputes Board process. My Associate will issue those recommendations under seal in a few minutes, so if you don't go away, and there are some students here and I will see them afterwards if they want to have a talk to me about what they have just seen happening here. I will now adjourn. Thank you.

ADJOURNED INDEFINITELY [12.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 NOTE OF A MEETING OF 29/08/2003 TO ELECT HEALTH AND SAFETY REP AT CAULFIELD GRAMMAR, LOCH AVENUE, NORTH CAULFIELD PN26
EXHIBIT #R1 DOCUMENT RE TWO RESOLUTIONS PN75
EXHIBIT #R2 RECOMMENDATION FROM VICTORIAN BUILDING INDUSTRY DISPUTES BOARD DATED 03/09/03 PN113
EXHIBIT #A2 DOCUMENT FROM VICTORIAN BUILDING INDUSTRY DISPUTES BOARD DATED 05/09/03 PN174