C2003/5644, Transcript of Proceedings [2003] AIRCTrans 4492 (8 October 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 10598

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2003/5644

THE NATIONAL ELECTRICAL
CONTRACTORS ASSOCIATION

and

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of
the Act of a dispute re work bans at Nilsen
Electric

MELBOURNE

1.58 PM, TUESDAY, 23 SEPTEMBER 2003

PN1

MR F. KENNEDY: I am from the National Electrical Contractors Association appearing on behalf of Nilsen Electric.

PN2

MR S. LEANE: I am from the Electrical Division of the CEPU and I have with me Mr Phil Lynch, who is the shop steward for the Traffic Division at Nilsen.

PN3

MR KENNEDY: Your Honour, I also have with me MR S. JOYCE, who is the Traffic Signals Manager from Nilsen Electric.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Kennedy.

PN5

MR KENNEDY: Thank you, your Honour. We are here today because there have been work bans applied by the ETU at Nilsen Electric in their traffic signals maintenance division. Last Friday, 19 September, there was a meeting at the ETU of the workers from Nilsen's in this area. At that meeting work bans were applied. These were notified to the management after that meeting and they have been in place since then, which was mid-morning on last Friday and remain in place as we speak. The bans are on six parts of the traffic signals maintenance work and they are important parts of the work to the effect that since the bans were applied, out of 139 tasks that have been required, 88 have been subject to the bans and, therefore, not been done, and that is approximately two-thirds.

PN6

There are two consequences for Nilsen Electric. One is they are unable to fulfil the terms of their contract with VicRoads, who are the customers, and there are financial penalties for that, and those are estimated to be exceeding $5000 potentially as we speak. Also, the employees who have got the bans on are obviously not doing work while the bans are on. They are doing some work for the work that is not banned so, therefore, there is a loss to Nilsen in paying the wages of those employees while they are not gainfully employed doing the work for which they are employed to do. The second consequence is that there is a potential risk to public safety because this is traffic signal maintenance and obviously the public relies on the traffic signal system to be working efficiently in order to maintain safety on the roads.

PN7

The ETU has given an undertaking that it will make sure that public safety is not jeopardised, but our point - that is with such a large amount of work not being done, even given the ETUs undertakings, there is a risk to public safety. Your Honour, what we are seeking is the assistance of the Commission in having these bans removed. They are in contravention of the enterprise agreement which the company has with the ETU which has got a dispute settling clause in it, where it says that work will continue as normal unless there is immediate risk to employee health and safety. So we are seeking the assistance of the Commission to have these bans removed immediately and if the ETU has any concerns with the company, to sit down in accordance with the dispute settling procedure, with the assistance of the Commission if necessary, in order to resolve any issues they have. If your Honour pleases.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Leane.

PN9

MR LEANE: Yes, Commissioner, I was going to apply if we could go into conciliation if it is okay with the other party, but first I wouldn't mind if I could give you a brief history of how we have got to this point where our members are protesting against VicRoads application of the tender process. Back in - over a year ago we had a number of mass meetings with our members that work in this industry as far as an upcoming contractor was going to be awarded to - for maintenance for three-plus years in the future. Our members concerned - our members were concerned because these particular electricians are specialised. Contracts change hands from tender to tender and these particular electricians move as the contracts move because of their obvious experience and their specialising in this field.

PN10

A meeting we had on the 12th of the 12th last year, our members wanted to put to VicRoads if they want some input on their working conditions and the OH&S in the future contracts. So the union contacted a number of VicRoads managers in this concern as a result of this meeting and if I could hand up a letter that went out.

EXHIBIT #CEPU1 LETTER TO VICROAD MANAGERS

PN11

MR LEANE: Which we attentioned to Mr Ted Vincent and cc'd to a number of other regional managers relaying what our members would like to see considered in the future tender. We didn't have a great success of a reply from VicRoads to this particular letter. We eventually got them to meet with us in May. They were represented by Mr Ted Vincent, who we attentioned that particular letter, some IR people from VicRoads and a number of other managers, and myself and Mr Lynch attended that meeting on behalf of our members' concerns. I will hand up these together if you don't mind, but I have got a letter that I drafted myself which I wanted VicRoads to consider as a commitment to us of the future tender was given to them.

PN12

VicRoads actually agreed to what we put to them as far as the members that work in the industry and if - as you will see, the first couple of paragraphs which I wrote for them they embraced in Mr Vincent's letter which eventually was attentioned to Dean Mighell as far as a safety process and we would be pretty pleased to say that that committee was formed and a standard has been developed, which was put in this tender for this next maintenance - big maintenance contract. But the issue that our membership have got now is the industrial relations side of it basically. There was a commitment that the contractors would have enterprise agreements with their union which would create a level playing field and also our members would know what sort of conditions to expect whether - whatever contractor won the particular tender.

PN13

We were alerted a couple of weeks ago that it had gone out on VicRoads website that preferred tenders - a number of the preferred tenders didn't have agreements with us, didn't have any form of industrial relations agreement, whether it be an LK or an LJ or anything like that, to promote harmonious industrial relations that was spelt out in Mr Vincent's letter. We approached VicRoads last week. Their tendering process which was explained to Mr Lynch and myself was - they go on whatever prices are given in. They award the contract and then they ask for quality paperwork after they have awarded the contract.

PN14

The contractors have got a number of weeks to present it, which it includes the safety plan which we have got a concern with because we believe a number of these companies - or two of these companies in particular won't be able to deliver the safety, which has been guaranteed to us by VicRoads and also those companies haven't got agreements - enterprise bargaining agreements. What VicRoads said is they have actually put the horse before the car and asked for the quality paperwork and get back to us within a week, and if - what was indicated we believe, if there isn't any vehicle for industrial relations in their tender, then those contractors would have a problem being successful.

PN15

I got a phone call from Mr Jim Bensford, who is VicRoads IR Manager - I suppose you would call him - saying that VicRoads have got the paperwork, agree that there is no vehicle there but they are still going to award the contract to the cheapest price, which puts our members in a position where whether it be - a number of them might be in a position of having to by necessity accept positions at companies where their safety conditions and pay and other conditions are below the industry standard. So I think that is pretty much a background of where we have got to at this point and I would be asking if we could go into conciliation from this point.

PN16

THE SENIOR DEPUTY PRESIDENT: First of all I will just mark that exchange of correspondence.

EXHIBIT #CEPU2 CORRESPONDENCE

PN17

THE SENIOR DEPUTY PRESIDENT: Can I just ask you this, Mr Leane. Do you have an agreement with Nilsen Electric?

PN18

MR LEANE: Yes, we do.

PN19

THE SENIOR DEPUTY PRESIDENT: Do you agree that there have been bans applied on Nilsen Electric - at the work - in relation to work being performed by Nilsen Electric?

PN20

MR LEANE: Our members have got a formal protest against VicRoads.

PN21

THE SENIOR DEPUTY PRESIDENT: But it is against VicRoads?

PN22

MR LEANE: That is correct.

PN23

THE SENIOR DEPUTY PRESIDENT: Do you wish to add anything - are you happy to go into conference, Mr Kennedy?

PN24

MR KENNEDY: Yes, we are happy to do that, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Do you wish to add anything before we do?

PN26

MR KENNEDY: Just to add that the contract that Nilsen currently has expires on Wednesday of next week. I think it adds to our point that if the ETU has got concerns with VicRoads it should take those up with Vic Roads and our member should be able to go about fulfilling its contractual obligations as of now until the contract ends next Wednesday.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The Commission will adjourn into conference. If necessary we will go back onto transcript after that conference. The Commission is adjourned.

SHORT ADJOURNMENT [2.10pm]

RESUMED [2.29pm]

PN28

THE SENIOR DEPUTY PRESIDENT: Arising out of the conference I have had with the representatives of the parties in this matter I recommend that the existing work bans at Nilsen Electric be lifted and I ask that the CEPU convey that recommendation to the relevant employees as soon as is practicable. I expect that the CEPU will notify me tomorrow whether or not that has happened and the result of any further deliberations by those employees. The matter before me will then be dealt with further in the light of the advice I receive tomorrow from the CEPU. The matter is adjourned to a date to be fixed and either party can seek to have the matter relisted upon notice to my chambers. The matter is adjourned on that basis.

ADJOURNED INDEFINITELY [2.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CEPU1 LETTER TO VICROAD MANAGERS PN11
EXHIBIT #CEPU2 CORRESPONDENCE PN17