C2003/288, Transcript of Proceedings [2003] AIRCTrans 5062 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

C2003/288

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by Western Power Corporation for an
order to stop or prevent industrial
action

PERTH

7.10 PM, THURSDAY, 30 OCTOBER 2003

PN1

MR A.D. LUCEV: I seek leave to appear with MS K. HASLUCK-JONES and I also appear with MR N. FRY.

PN2

MR S. BIBBY: I appear on behalf of the ASU in this matter. Sir, if I can just indicate I will objecting to Mr Lucev appearing in this matter, I would like to be heard on that matter.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Bibby.

PN4

MR M. KANE: I appear with Mr Bibby in respect of the Australian Services Union.

PN5

THE DEPUTY PRESIDENT: Thank you, Mr Kane. Mr Bibby, you wish to be heard in the matter of leave?

PN6

MR BIBBY: Sir, yes. Sir, is the case that in accordance with section 42 of the Act it makes it clear that if counsel are to appear in such a matter that they must seek leave of the Commission. We see this as being completely unnecessary. I note at the Bar Table Mr Fry appears or is present. He is, in fact, a qualified industrial officer of Western Power. We believe that in the circumstances these are very straightforward matters. We will initially be seeking that the matter be adjourned into conference, sir, to understand the basis of this claim.

PN7

It is our position that Mr Fry should be at least representing Western Power in regard to this matter so that we can, as we deal with the matters concerning the substantive issues, then perhaps we can actually talk about them in a conference, Mr Fry should lead those discussions. So we would leave it at that at the moment. We would also say that in terms of the general nature of these matters it should be fairly straightforward for a qualified industrial officer to bring forward the evidence if there is any to convince the Commission of whether, in fact, you have jurisdiction to hear this matter in the first instance. If it pleases the Commission.

PN8

THE DEPUTY PRESIDENT: Mr Lucev?

PN9

MR LUCEV: Yes, if it please the Commission. The section 42(iii)(b) provides that counsel and solicitors can appear by leave of the Commission if the Commission is satisfied that having regard to the subject matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented. In this particular case, there are special circumstances, your Honour. First and foremost they are these: that Western Power desires to be adequately represented in a matter which if it goes off the rails may result in an interruption to power supply, either rolling or general in terms of a black-out at or about - well, some time tonight given now that the night shift has commenced.

PN10

So that, we say, is in any event a special circumstance which warrants counsel appearing. It is also the case that historically Western Power have, I think as often as not, in matters of this type involving industrial action and potential interruption to supply, being represented by counsel. That is a matter of record over the years. Thirdly, with respect to the criteria, it is a section 127 matter. It is the case that counsel regularly appear in section 127 matters. They appear because of the necessity to assure the Commission that the relevant jurisdictional pre-requisites set out in the Act have been satisfied both as a matter of law and as a matter of fact.

PN11

So in terms of section 127, it is the type of application which we say the legislature would have contemplated counsel appearing in by virtue of section 42(iii)(b) of the Act. It is the type of matter in which, and you will recognise and know this in any event, your Honour, counsel invariably appear in. Finally, there are a number of matters of law involved. There is the matter of section 127 itself, its proper interpretation and the fulfilling of the jurisdictional pre-requisites.

PN12

Secondly, there are several matters of law involved in relation to the issues themselves. There is an issue associated with the issue of whether this is protected or unprotected industrial action and we say it is unprotected. That involves again the interpretation of the Act. There is the issue of interference with contractual relations by those on the picket line. In that respect you need to appreciate,if you do not already, that what we say is occurring here is that unions and employees associated with a third party, Skilled Engineering, or employees of a third party, Skilled Engineering, are picketing the Kwinana Power Station, the entrance to the Kwinana Power Station.

PN13

That has either or is likely to prevent staff and in particular maintenance staff from entering the site this evening. We have been told as recently as 15 minutes ago that whilst the operators, who Mr Bibby represents, have gone through the picket line tonight. If maintenance staff arrive because of a breakdown of equipment then they will not be allowed through. Now, you will recognise from your general knowledge that this is a critical time for the power generation industry in Western Australia, given that there is a problem with a gas compressor on the gas pipeline and that there was a likelihood of power failures in any event, or the possibility of power failures in any event.

PN14

That, of course, makes another reason why this is a special case warranting representation by counsel. The picket line is as a matter of law we say, a public and private nuisance. The failure to attend for work by any of our persons will involve a breach of their contract of employment, another matter of law. As I've already indicated, if they are prevented from attending work by others that will involve an interference with the contractual relations not only between Western Power and its employees but between Western Power and Skilled Engineering, the contractor who are contracted by Western Power to conduct the maintenance.

PN15

There are also issues associated with potential section 45(d) Trade Practices action. The unions have already been served in anticipation, as it were, and Pullin J, is on standby as the duty judge to hear an application in the Supreme Court this evening if that becomes necessary. So we say that there are a veritable plethora of legal issues and special issues which warrant counsel appearing in this particular matter and which mean that in all of the circumstances of this case and they are special circumstances, counsel ought be granted leave to appear. If the Commission pleases.

PN16

THE DEPUTY PRESIDENT: Thank you, Mr Lucev. Mr Lucev, Mr Bibby did foreshadow that he would be seeking to put to the Commission that this matter be heard in conciliation. He also put to me that he felt that Mr Fry on behalf of Wester Power was an integral part of the discussions or should be an integral part of the discussions in the matter before the Commission tonight. It would I think be of concern to the Commission if there was an attempt to thwart any frank discussions with undue legalities and an attempt to prevent Mr Fry from playing a full and proper part in the proceedings if this matter goes into conciliation.

PN17

MR LUCEV: Yes.

PN18

THE DEPUTY PRESIDENT: So I just seek your response and assurances on those points before I consider the matter further.

PN19

MR LUCEV: Can I say this? Mr Fry has been, as I understand it and am instructed and have seen in the last couple of hours, fully occupied dealing with the minutia, if you like and I don't say that in a pejorative way, of this dispute. Because as you can imagine there is a lot going on behind the scenes that we do not see. So in those terms it is necessary for counsel to appear because counsel is prepared and briefed to argue the legal issues. The fact that we've announced an appearance for Mr Fry is the clearest possible indication, in my view, that we do not intend to hide his light behind a bushel, if I can put it that way, in terms of these proceedings.

PN20

If the matter goes into conciliation, both he and the other Western Power officials here will be able to deal with the matter in conciliation and we won't be, as I say, hiding around the corner as it were. As Mr Bibby, with respect to him, full well knows, again it has been the case that counsel and solicitors have regularly been involved in Western Power matters in conciliation in particular over the years and in particular for many, many hours before Commissioner Laing and Deputy President Coleman as the case may be.

PN21

With respect, to him it is not a matter of us seeking to thwart Mr Fry appearing, it is a matter of utilising all of the resources that are available to us to best effect in the limited time which we have had available to us to get this matter on and before the Commission at this late hour for which we are, of course, appreciative I might add. So there is no question of hiding Mr Fry in that respect. That said, counsel and solicitor will still make an appearance at the conciliation conference if you allow us to and have input into that as necessary.

PN22

THE DEPUTY PRESIDENT: Do I take it from that, Mr Lucev, that you would be proceeding to support the process of conciliation within the - - -

PN23

MR LUCEV: Our position on that, your Honour is this. We say that we ought to be allowed on transcript and in open Commission to put the facts of the matter before you and the grounds for the application and I would estimate that that would probably take 10 to 12 minutes. It is then a matter for you, with respect to having heard what the grounds are and what we say the facts are and any response that Mr Bibby has to that to determine what course is to be adopted. We would be urging you to make appropriate orders but we would urge you to do that at an appropriate point in time.

PN24

If your Honour is firmly of view having heard us in opening that we ought to go into conciliation, then obviously we would be prepared to do that. Equally we will be pressing at the end of the night and I trust not too far towards the end of the night, your Honour, for an appropriate order.

PN25

THE DEPUTY PRESIDENT: Thank you. Mr Bibby, were you wishing to rise?

PN26

MR BIBBY: Yes, your Honour.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR BIBBY: It is interesting to note that Mr Lucev has alluded to the fact that ASU members have crossed the picket line and are currently attending work. He, in making that assertion we are interested in therefore the grounds of why we are indeed here. We believe in the circumstances, sir, and let us be blunt, we have been called in at very short notice. We still have no idea why we are here. We are not aware of any of our members taking industrial action and on that basis what we are requesting is that we at least have the opportunity to go into conciliation to hear what is being said and what is being put and then proceed from there.

PN29

Mr Lucev makes mention of the fact that Mr Fry has been involved in the detail of this claim for the last two hours, Mr Fry is at a distinct advantage to myself, I haven't even been briefed yet. So on that basis, sir, we are seeking at least the opportunity to hear in the context of conciliation, to explore what the issues are. It may well be that that will be all that is necessary for this evening. If it pleases the Commission.

PN30

THE DEPUTY PRESIDENT: Yes. Thank you. I do intend to resolve this matter of leave shortly. So if you have perhaps one final comment, please keep it reasonably brief if you would, Mr Lucev?

PN31

MR LUCEV: Yes, I will, your Honour. In terms of the approach with respect to the ASU, it is true that their members, as I'm instructed, have crossed the picket line at or about 6.30 pm this evening. At the time at which the application was made there was an anticipation and I would have said this in opening in any event, so that the facts were fully on the record from our point of view so that Mr Bibby knew exactly what he was up against whether we proceeded in open Commission or in conciliation.

PN32

There was, on my instructions, a meeting of the ASU operator scheduled for 6.30 pm and at that point in time on the basis of the information available to us, it appeared to us that the people on the picket line were going to endeavour to prevent them from attending to their lawful duties. On that basis we took the view that there was, in the words of the Act, threatened, impending or probable industrial action. That is why the ASU are here, but as I say, I would have outlined that and will outline it fully in opening in any event.

PN33

THE DEPUTY PRESIDENT: Thank you. I have heard what has been put to me in relation to the question of leave. I am satisfied that there are special circumstances. However, I am cognisant of the request of the ASU that this hearing move into conciliation and for the frank and full participation of the operational management from Western Power. So in circumstances of those caveats being noted, I do grant leave to Mr Lucev. Mr Lucev, you are the only counsel present, is that correct?

PN34

MR LUCEV: I appear of counsel. Ms Hasluck-Jones is a barrister and solicitor admitted at the Supreme Court of Western Australia but appears - well, is with the firm instructing me, Messrs Clayton Utz.

PN35

THE DEPUTY PRESIDENT: Yes, well leave is also granted then to Ms Hasluck-Jones. I intend now to proceed into the hearing and would invite very brief summaries of each of the parties present of the key matters in dispute and their proposal for how the proceedings should progress in the course of the evening. I would also seek the submission of parties on, as I understand it there is no attendance of the CEPU here tonight, so with those introductory comments again, please keep the initial submissions short and to the point. Mr Lucev?

PN36

MR LUCEV: Thank you, your Honour. A picket line was established outside of the Kwinana Power Station at some time early today prior to 9 am, I understand. That picket line relates to demands by employees of Skilled Engineering for increases in their remuneration. Skilled Engineering hold a contract to perform certain maintenance duties, that contract being with Wester Power in relation to the Kwinana Power Station. It is the case that the operators who are members of the ASU have attended to their duties today. As I've indicated to you, have also crossed the picket line this evening. Although on the instructions we had earlier it appeared that they were going to have a meeting at 6.30 pm and there was a possibility that they would not cross the picket line but the ASU operators have been at work all day.

PN37

The difficulty at the present point in time is with respect to the CEPU employees of Western Power who perform maintenance on equipment which, put shortly yes, is required or required as a result of any breakdown. Those employees did not attend for work today. They, we say, were turned back the picket line and refused to cross the picket line. We have been told this evening on the way down here and immediately prior to coming down here, that if maintenance employees sought to cross the picket line this evening that the picket line would endeavour to prevent them from doing so and would harass and intimidate them.

PN38

To some extent that is borne out by the fact that cleaners who sought to enter the site some time as I understand it between 5 and 6 pm this evening, were turned back at the picket line. So it transpires that no cleaning of the premises at the site has occurred this evening. As I say, we understand the dispute to be about the rates of pay for employees who are not ours but are engaged by the maintenance contractor. In terms of the jurisdictional pre-requisites, it is quite clear that there is industrial action as defined in section 4 of the Act in that those maintenance employees are not attending for work and have not crossed the picket line today. The indications are, we understand, that they will be harassed and intimidated tonight and therefore are unlikely to cross the picket line tonight.

PN39

Or more importantly, when day shift comes on tomorrow morning at 7 am, the entire day shift are unlikely to cross the picket line. The work is, as you will probably be aware, your Honour, covered by a certified agreement of this Commission, the Western Power Certified Agreement. The nominal expiry date of that is 5 October 2005. I should add in relation to all of this that in terms of the non-attendance at work by employees of Western Power or any possible non-attendance of work by employees of Western Power that the dispute settlement procedure has not been invoked.

PN40

We are told by officials of the CEPU and in particular by Mr O'Byrne, that his members want to go to work but are not prepared to cross the picket line. Certainly in terms of the maintenance tasks which will be normally required of employees on day shift tomorrow and/or might be required tonight, we want those people to attend for work. The consequence of their not doing so, your Honour, is this. That the State's power supply at the moment is in difficulties in any event and you will have heard me earlier on that with respect to the difficulties with the gas compressor on the Dampier to Bunbury power line which has broken down and which it was possible might affect supply in any event because of the insufficiency of gas supplies.

PN41

If other power units at Kwinana Power Station break down or are not maintained, then there is the possibility, we say and the probability, that if there is a breakdown then there will be interruptions to supply. That is, those interruptions to supply might affect anyone from the ordinary member of the public in their household to major commercial customers of Western Power on the Kwinana strip or in the South West of the State. So we say that in terms of the jurisdictional pre-requisites there is clearly industrial action for the purposes of section 4. It is not protected industrial action because it is simply a refusal to attend for work or the possibility that persons might not attend for work and is not protected industrial action in any way.

PN42

Western Power is directly affected by that industrial action and I think that, with respect, is self-evident. The work is regulated by a certified agreement and there has been, we say in terms of those people who have not attended for work, a breach of the dispute settlement procedure and there are serious consequences which flow from any furtherance of the industrial action which has been taken, or potential serious consequences. So in terms of section 127(1) and the decisions in relation to that, those discretionary factors that you have to look at in addition to the jurisdictional facts include, for example, non-compliance with the disputes procedure, the objects of the Act and in particular, encouraging parties to reach agreement and the obligation of the parties to abide by certified agreements. In particular, the requirement to go to work and the requirement to comply with the dispute settlement procedure and compliance with the Act. Because the refusal to cross the picket line which is industrial action is non-compliance with the Act at the end of the day.

PN43

So for all of those reasons we say that there is either industrial action on foot and that appears to be - has been the case today in relation to the maintenance persons who have not crossed the picket line. It appears that industrial action is probable or impending if there is a breakdown tonight in terms of any maintenance person required to cross the picket line. Because it appears to us and we are told that they will not and will not be allowed to and that that consequence will flow on tomorrow when the full maintenance shift come on for work at 7 am.

PN44

For those reasons we say it is appropriate that you issue orders with respect to those persons employed by Western Power who refuse to cross the picket line must be directed by the Commission, we say by order, to cross that picket line to attend for their normal duties and you will see the form of the order that we have set out in the application itself. That said and in fairness, I do have to say as I've said already, that the application was made in anticipation of an ASU meeting at Kwinana at 6.30 pm which we had been told about, in the knowledge that the ASU operators on day shift had worked all day and were prepared to work until about 10 tonight as I understand it. And in anticipation of a difficulty with those persons not crossing the picket line, that has not transpired.

PN45

I say that in fairness to Mr Bibby to make it clear that at this point in time there is no actual industrial action on the part of the ASU. But for your purposes, your Honour, there is and has been and is likely to be further industrial action by the maintenance employees covered by the CEPU. They are the persons who if they do not attend in the event of a breakdown will cause by virtue of the abrogation of their duties under their contract of employment, a crash in the system. For that reason we say that we need orders directing Western Power employees to attend for work in terms of the order. Unless your Honour has some questions with respect to that hopefully brief opening, that is our opening submission and those are the facts as we understand them at this point in time unless there is anything further.

PN46

THE DEPUTY PRESIDENT: That is sufficient for the moment, I may have some questions later.

PN47

MR LUCEV: Right.

PN48

THE DEPUTY PRESIDENT: Thank you for that, Mr Lucev. Mr Bibby?

PN49

MR BIBBY: Sir, it is extremely puzzling in the light of Mr Lucev's submissions and in the light of the requirements of the Act that we have anything to do with this particular matter. As Mr Lucev has openly admitted before you, the ASU members have crossed the picket line and are currently working. It is our position that they have all always intended to attend for work. The open submission of Mr Lucev is that they have attended for work and so that raises a very important question now as to whether in terms of the ASU this Commission has any jurisdiction to hear the matter.

PN50

We are currently working, our members are working at this point in time. As I hear Mr Lucev's submission, the problem is with the CEPU. We are therefore seeking that the Commission exercise its general powers under section 111 and issue orders to grant or at least specify just exactly who is involved in these particular proceedings and who should be involved. We would be seeking that the ASU be set apart from this matter and with due respect, sir, we really don't need to be here.

PN51

Sir, I think that is a fairly important point, as I would see it. It is a question of jurisdiction here and I am simply saying that the Commission does not have jurisdiction in regard to hearing any matters in regard to the ASU on this matter. Unless there are any further questions, sir, I really have nothing further to add. As I said before, sir, I would suggest that we move into conciliation as soon as possible to see if we can - once again, we will be seeking leave to leave the Commission and leave the conference but we're happy to participate initially in a conference but other than that, sir, I really have to say I am not sure we should be here.

PN52

THE DEPUTY PRESIDENT: Thank you, Mr Bibby. Mr Lucev, I would like you, if you would, to address the submission of Mr Bibby that his members are not engaged in industrial action and also his proposal that conciliation be commenced.

PN53

MR LUCEV: Well, I am instructed, contrary to what I submitted on my previous instructions, that there are some ASU members who have not crossed the picket line and they include, I am told, technicians and planner/co-ordinators. So there are some ASU members who have not crossed the picket line and that therefore means that in terms of the relevant jurisdictional facts, that there is industrial action because those persons are not at work and are not coming to work, and they therefore fall within the same bracket as those CEPU maintenance people that I referred to earlier and I am instructed that those people involved, those technicians and the planner/co-ordinators, were the ASU members who have not crossed the picket lines - are the ASU members who are involved in maintenance of the plant as opposed to operating the plant.

PN54

So there is a bifurcation, if you like, your Honour, between those who operate the plant and those who maintain the plant and it is a situation that those who maintain the plant are not crossing and not being allowed to cross the picket line, those who operate the plant are being allowed to cross the picket line. So contrary to what I was previously instructed there are some ASU members who are not crossing the picket line.

PN55

THE DEPUTY PRESIDENT: And your submission in relation to the matter of conciliation?

PN56

MR LUCEV: I suppose there are two issues associated with that, your Honour, one is that it is possible, quite clearly, to conciliate with the ASU because they fortunately are here. It is not going to be possible to conciliate with respect to the CEPU issues. Subject to any conciliation issues with the ASU we would seek orders against the CEPU forthwith, given that it is now 7.45 and if something falls over at 8.30 we need to be able to say to a CEPU maintenance person: there is an order of the Commission directing you to go through the picket line. I think we are content to go into conciliation with the ASU with respect to those of their members how have not crossed the picket line, but we would seek orders with respect to the CEPU.

PN57

THE DEPUTY PRESIDENT: Thank you. Mr Bibby, your view concerning conciliation of those of your members who have not crossed the picket line, being as I understand it maintenance workers, and your view on any other matters that the applicant has raised.

PN58

MR BIBBY: Sir, I mean there is a great deal of confusion on behalf of Western Power. We have no understanding at this point about the technicians, that is the first time we have heard of it, so we would frankly need some time in regard to this mater to, as I said, understand just exactly what the issues are and it would seem if we have such confusion it is appropriate that we move into conciliation so that we can sort matters out and not waste time on the record. Sorry, sir, what was the second issue that you raised?

PN59

THE DEPUTY PRESIDENT: Mr Lucev did raise the question of proceeding with orders against the CEPU. I wondered if that was the matter - - -

PN60

MR BIBBY: Sir, I am just simply not authorised to respond on behalf of the CEPU. I simply cannot respond to that question. Sir, it may well be that through the course of conciliation we may discover that there are more issues that we may need to address and once again my proposal would be it would be sensible simply to move into conciliation and hear from Western Power, what their problems are.

PN61

THE DEPUTY PRESIDENT: Mr Bibby, it being approximately quarter to 8 what is your view as to how long would be appropriate for conciliation proceedings?

PN62

MR BIBBY: Well, sir, I would be saying as long as it takes, sir, but I guess we can really deal with the issues concerning the ASU fairly briefly, I would imagine. I mean I think it would be important too that we hear from people who are better positioned than I am at this point in time to at least afford the Commission all of the issues as they understand them in the context of this alleged matter.

PN63

I think it is an important issue that we would want explored. If at the end of conciliation we go back into hearing I would continue to flag the whole question of the jurisdictional issues but that could be for a later time. So in effect, sir, I think we could go and, as I understand it, I am not sure we have many issues to discuss so it should be reasonably brief.

PN64

THE DEPUTY PRESIDENT: If this hearing proceeds into conference another question of course would be who present should be participating in those discussions. Your view on that?

PN65

MR BIBBY: Sir, I think that is fairly obvious, that the Commission has fairly wide powers here to call whoever it wishes. We have turned up. We are ready to sit down and discuss matters with the employer. I would simply say, sir, that without being disrespectful, it is not our problem. We are here to assist the Commission to resolve this matter. We can't speak on behalf of any other union.

PN66

THE DEPUTY PRESIDENT: Mr Bibby, I am informed that there is another matter which has been the subject of an application to the State Commission which involves another union but on a related matter, which is the AMWU, and I wondered if you had a view about that. There was a request, as I understand it, for these matters to be dealt with jointly, State and Federal. In the circumstances that is not occurring but I wondered if you had a view as to whether or not it would be helpful to have the AMWU present in any discussions in conference given, as I understand it, that it is the party - I can't say this with certainty, but I understand it is party to the proceedings in the State Commission.

PN67

MR BIBBY: Sir, all I have heard so far is the submissions of Mr Lucev from the bar table and it would seem that there is a picket line by another union and we haven't - - -

PN68

MR LUCEV: It is the AMWU.

PN69

MR BIBBY: Is the AMWU.

PN70

MR LUCEV: And the CFMEU.

PN71

MR BIBBY: It would seem that if that picket line was removed we wouldn't have a problem there, I presume, so clearly those matters have to be dealt with in the appropriate forum. But, once again, I am simply submitting that this is not the business of the ASU it is the business of Western Power to deal with the appropriate people, with the appropriate unions, and we are simply saying we're working and our members have crossed picket lines, etcetera.

PN72

It is not our intention to make any submissions on behalf of other unions and so on that basis, sir, we would simply say I simply can't put a submission to that, sir. I think we would once again say let's adjourn into conciliation and deal with the issues as they relate to the ASU and then, if necessary, the Commission can exercise its powers to call in other unions, if that is necessary.

PN73

THE DEPUTY PRESIDENT: Thank you. Mr Lucev, as I understand the background to the hearing tonight, contact was made with the CEPU but the State Secretary was in Merredin and not available to attend and, to my knowledge, hasn't been possible for the Commission to make contact with any other officials.

PN74

MR LUCEV: Yes.

PN75

THE DEPUTY PRESIDENT: In the circumstances, assuming that is correct, that the CEPU as a consequence of that is not present, it has not had an opportunity to put forward any position. I wonder what your further submission would be in proceeding with orders against it?

PN76

MR LUCEV: Our submission is this, your Honour, that the CEPU, one of the largest and most powerful, with respect to them, unions in this country. They are in a position where their members are presently involved, we say, in industrial action which threatens the power supply of the State of Western Australia. If, having been invited to come here, they cannot arrange for one of a myriad of officials, and there are a number of officials in their office in this State, and the State Secretary, the Assistant Secretary to the organisers, to the industrial officers, if they cannot, as Western Power have done, brief solicitors and counsel, and there are unemployed people at the bar and from the firms, I am sad to say, at short notice, then this Commission ought proceed, with respect, without them.

PN77

Now, the Commission can do justice to the submissions that we make by accepting the position as we put it and making an order for a short period of time. For example, I mean it is not the usual case that section 127 orders are made for 24 hours but you might make a section 127 order in this case for 24 hours and give the CEPU the opportunity to be heard tomorrow in relation to the order that you make and whether or not it ought to be varied.

PN78

This is a case where it is, given the nature of that union and the importance of this issue, simply one that you cannot, with respect, the Commission cannot, with respect, run the risk of us proceeding in this hearing in the dark or major manufacturers on the Kwinana strip having their power turned off, or even for that matter the ordinary single mother or aged grand-person in their home alone tonight having their power turned off. This Commission cannot, simply because of the absence of the CEPU, in the circumstances and given the nature of that organisation, run that particular risk.

PN79

So we say, yes, proceed to issue orders with respect to the CEPU. Do it for a short period of time and invite them here tomorrow to address you with respect to those orders and that, with respect, solves the problem on an interim basis and allows them the opportunity to address the order at some stage tomorrow. With respect to Mr Bibby and the ASU, we are in I think a position, we are happy enough to go into conciliation with them with respect to, I am instructed, their seven members who have refused to cross the picket line.

PN80

I should just add that Mr Bibby criticises the confusion that arises in these matters. As he well knows, from having acted on this side of the table on many occasions, these matters are a moving feast, which I am sure the Commission as presently constituted will appreciate and it is not unusual to have to get instructions on the run and for the facts and circumstances to change as we proceed. If it please the Commission.

PN81

THE DEPUTY PRESIDENT: Thank you. Well, given that this matter is brought to the Commission under section 127 and under subsection (3) of that provision the Commission must hear and determine an application for an order as quickly as practicable. I am of the view that it is urgent that the Commission deal with this matter, and given that there is no objection to conciliation between the two parties present tonight, it would be my intention, subject to one point of clarification, to move into conciliation and I would like, Mr Bibby, to clarify with you and if possible have it very clear as to whether or not in your view there are any members of your organisation that are engaging in industrial action that have not crossed the picket line because that is a relevant consideration in these proceedings.

PN82

MR BIBBY: Sir, the position is it is news to us that any of our members have not crossed the picket line. As I said, it would probably be advisable for us to go into conference to hear just exactly what is alleged and then, if necessary, we can make the appropriate calls. I would simply submit, your Honour, that that is probably the best way we can proceed, bearing in mind that we have only received this application on foot at 5 to 5 and in fact officers at the offices were caught up in other matters.

PN83

So we quite literally have not been briefed in any detail and Mr Kane is here to assist, Mr Burlinson is here to assist, who is the Branch Secretary. We have had some calls. The calls we have had so far are with our power station operators. We understand they're at work. It is not news to us that technicians are not crossing the picket line and on that basis we would need to seek further instruction on that matter.

PN84

THE DEPUTY PRESIDENT: Thank you.

PN85

MR BIBBY: Well, sir, I would suggest that we adjourn into conference as soon as possible to get everything on the table.

PN86

THE DEPUTY PRESIDENT: Thank you. I do intend to do that shortly. I had in mind that conciliation, however, should be very short and to the point, given the importance of the matter and the imminence of the threat, as has been submitted to me, of the consequences of the industrial action or the availability of power later this evening. It would be, in my mind, that conciliation should take place for perhaps approximately half an hour or so, that is just a guide, but before adjourning, Mr Lucev, did you have any further submission in that regard?

PN87

MR LUCEV: No, other than to press upon you the importance of issuing an order with respect to the CEPU. If it please, your Honour.

PN88

THE DEPUTY PRESIDENT: But you are not submitting that conciliation of that period of time would, from your point of view, prevent further proceedings or prejudice your position?

PN89

MR LUCEV: Well, it is a bit difficult to tell your Honour. If the lights go out we will have been prejudiced, if not then, no. So in that respect I think we are in your hands.

PN90

THE DEPUTY PRESIDENT: Thank you. In view of the fact that there are a large number of persons present and the logistics of moving into a usual conference room, it would be my proposal that we adjourn into conciliation in this room, unless there is any suggestion by any party that any person present should not be able to participate in the conciliation conference or rather perhaps attend then it would be my intention that all those present would be free to stay in the conference if they so chose.

PN91

MR BIBBY: Sir, we have no objection to attending.

PN92

THE DEPUTY PRESIDENT: This hearing will now adjourn and a conciliation conference will commence very shortly.

OFF THE RECORD [8.00pm]

RESUMED [8.56pm]

PN93

THE DEPUTY PRESIDENT: Having concluded the conciliation proceedings I now invite, on return to the formal hearing, the parties to confirm the basis of the agreement which has been reached in those discussions for the formal record. I invite, first, Mr Lucev.

PN94

MR LUCEV: If it please, your Honour, with respect to the ASU the position, as we understand it, is that they have given an undertaking that all of their employees employed by Western Power at the Kwinana Power Station will attend for and be ready, willing and able to work on shifts tomorrow and thereafter subject only to a qualification, that if they feel that they are threatened in respect of their personal safety by the persons on the picket line that they will then need to give consideration to their position.

PN95

If that be the form of the undertaking then we accept that undertaking with respect to the ASU, and I will deal with the CEPU separately, if the Commission pleases once it dealt with the ASU.

PN96

THE DEPUTY PRESIDENT: Thank you. Mr Bibby?

PN97

MR BIBBY: Thank you, your Honour. Sir, for the record, we are saying that in effect the ASU will give the undertaking as outlined by Mr Lucev. We would point out for the record that that is in effect what happened today. We are suggesting that our members will present for work tomorrow. They are prepared, ready, willing and able to undertake their normal scope of duties and we would emphasise that this is in the context of the obligations that are on the employer in this matter to observe the requirements of the Occupational, Health and Safety Act and so, in short, we would say that if our members have any concerns about their health and welfare, that they are in any way compromised, that management will need to take the appropriate steps, and that would be, as we would see it, a requirement for them to consult with our members, to outline what steps they're prepared to take to alleviate the concerns.

PN98

It may, and we would want to emphasise, require management to give consideration to such things as allocating alternative duties and what we are saying is there should be no impediment on management from taking every possible step to take into consideration the health and welfare of these employees and, in particular, to listen carefully to what their concerns are. If it pleases the Commission.

PN99

THE DEPUTY PRESIDENT: Thank you, Mr Kane - sorry, Mr Bibby. Mr Lucev, from the Commission's point of view, the position of the parties is clear on the undertaking but you, being the applicant, if you would wish to make any final submission then that would be appropriate.

PN100

MR LUCEV: We have nothing further to say with respect to the undertaking.

PN101

THE DEPUTY PRESIDENT: Thank you. I am satisfied that the undertaking which has been given is a constructive measure which should assist the resolution of the disputation that has led to this matter coming to the Commission and I thank the parties for their co-operation in that regard. That concludes the issue involving the ASU in particular and I am now able to hear any further submissions that you wish to make, Mr Lucev, in relation to the application before us.

PN102

MR BIBBY: Sir, if it is the case that you're proposing to hear submissions in regard to the CEPU we would seek leave to, in effect, leave these proceedings, sir, we have no further part in it.

PN103

THE DEPUTY PRESIDENT: Thank you, Mr Bibby. Mr Lucev?

PN104

MR LUCEV: I have no objection to that, your Honour.

PN105

THE DEPUTY PRESIDENT: Leave is granted to leave the hearing.

PN106

MR BIBBY: Thank you.

PN107

THE DEPUTY PRESIDENT: My Associate will escort you down through the security of the building. Mr Lucev, please recommence, if you're ready.

PN108

MR LUCEV: Yes, yes, thank you, your Honour. Our position remains that orders ought issue in the terms that we have asked for with respect to the CEPU subject to the limitation that I expressed earlier with respect to a time period. Having considered that a little more and given that tomorrow is Friday and that there is a weekend forthcoming and we might run into more difficulties in terms of scheduling any urgent hearings, if they're necessary, I would suggest that the terms of that order, rather than being 24 hours which I suggested on the run earlier, be a term of say four days so that it gets us through the weekend and to Monday.

PN109

Mr Fry is just indicating that they do work alternate work patterns over the weekend as well, so that would be appropriate if the order were to last until Monday and that would give both the Commission and the CEPU sufficient time to deal with the matter openly, equitably and fairly, in my submission. What the proceedings thus far indicate, in our submission, your Honour, is that the jurisdictional pre-requisites have, as I've outlined earlier for a 127 order, been met in that there is work covered by a certified agreement.

PN110

There is industrial action taking place, in that CEPU members are not attending to the workplace and in those circumstances we say it is appropriate that the order issue in the terms sought subject to any queries that you might have with respect to the order. I should say that in terms of the definition of site, at the time we made the application there was an impending industrial dispute at the Muja Power Station which, you will recognise, is still the major baseload power station in the State and in those circumstances we consider that in terms of the Act it is still a possibility that there is a pending or probable industrial dispute involving the three stations which are defined as the site and therefore we would seek an order in the terms applying to Kwinana, Cockburn and Muja Power Stations.

PN111

THE DEPUTY PRESIDENT: Mr Lucev, I wondered if indeed you might have an amended draft, the Commission has not had much time to prepare for the hearing tonight.

PN112

MR LUCEV: Yes. I understand that.

PN113

THE DEPUTY PRESIDENT: And there are some amendments that you are proposing and I wondered if you may be in a position to tender an amended document, but there are some other matters I would like to raise which you could perhaps consider in conjunction with that. It would be a question of indicating to the Commission your proposal for the starting date and time for the commencement of the order as well as the time of the completion or the expiry of the order rather than just simply the day.

PN114

MR LUCEV: Yes.

PN115

THE DEPUTY PRESIDENT: Clarification of who the parties bound would be, a clarification of the service of the order, given the circumstances of the hour and the matter. Perhaps I might take one thing at a time, I will ask you if you would be in a position to comment on that first.

PN116

MR LUCEV: Right. With respect to the proposal for a date and time, I mean obviously it depends what time the order actually issues tonight but we would say on the present situation that it ought issue from 9.30 pm this evening or such other half hour thereafter, as is convenient to the Commission, and terminate at 5 pm on Monday, which is 3 November. So commencing at whatever time it issues tonight, effectively, and terminating at 5 pm on the 3rd.

PN117

With respect to service, the order does deal with the issue of service in Part VI, which is on page 3 of the application and we would see that subject to the exclusion of the ASU and its officers that that order, with respect to service, by facsimile in 6.1, would be appropriate and that can be achieved this evening or tonight and similarly with placing a copy of the order on the site's noticeboard and the front gate and again that is something that can be achieved overnight.

PN118

THE DEPUTY PRESIDENT: And your response to my question or request concerning the permission to the Commission of an amended document?

PN119

MR LUCEV: Probably what I can do in that respect, your Honour, is simply go through it with you now or alternately you can give us 5 or 10 minutes and I think we've got at least one clean copy here. I can hand up a handwritten amended version to your Associate.

PN120

THE DEPUTY PRESIDENT: Yes. That would be of assistance. I turn now to a procedural issue which I am cognisant of, which is that in terms of the very short notice for this hearing and the fact that the CEPU is not present, I noted your earlier submission, however, I raise again the question of natural justice that the proposed party, the CEPU, would not have had the opportunity of being heard and that is something which I would require a further specific submission concerning.

PN121

MR LUCEV: Right. Well, if your Honour will just bear with me for two minutes I will make that submission. Can I put it, your Honour, in these terms, I indicated to you earlier that given the nature of the matter there was clearly a degree of urgency about it and that, with respect, in terms of the nature of section 127 orders is something which the legislation, we say, contemplates because it is clear the Commission must hear and determine the application, as you have indicated, as quickly as it possibly can.

PN122

It is also the case that the CEPU, with respect, have had the opportunity, we say, afforded to them to make representations with respect to the matter. As I understand it, certainly Mr Game, the State Secretary, and who as I understand it is the Branch Secretary of the Western Australian part of the union, effectively a State Secretary has been contacted and advised of the proceedings. As I indicated to you earlier, the CEPU is in a position, and it is a matter of record in this Commission, that it is not only the State Secretary who holds office in that union, there are other officials both in this State and nationally and the union does, as you will understand I suspect from previous dealings, engage organisers and industrial officers to deal with matters.

PN123

There is no reason why at the time at which contact was made that counsel or solicitors could not have been briefed to attend the matter and we say that in that context it is important because what has been given to the CEPU is the opportunity to be involved either directly in that way by the appearance of other officers located in Perth by counsel or by solicitor or, if necessary, Mr Game is only in Merredin and it is not unusual in proceedings in this Commission to involve people in other ways, for example to have telephone conferences, etcetera, with those persons.

PN124

So we say that specifically that the CEPU has been given the opportunity to appear in these proceedings and has not taken the opportunity. Juxtapose it, if you will, with the attitude of the ASU. The ASU in exactly the same position, we would submit, very large union, a number of officials at a State level with people employed as industrial officers, two of whom were here this evening with the State Secretary, turn up to these proceedings. Now, there is no reason why in the same circumstances Mr Game could not have organised for someone to be here but he did not.

PN125

So in that context the opportunity to be represented has been given to the union and what the law says is that procedural fairness and natural justice is afforded to a party if they are given the opportunity to be involved. They don't have to take it up but they have to be given the opportunity and in the context of this dispute the CEPU have been given that opportunity and in the context of a section 127 application it is a matter in respect of which it is incumbent upon a major union to take all necessary steps to get here to be represented or to make some submission in some form or other and we have got nothing at all.

PN126

So we say that natural justice and procedural fairness has been afforded by virtue of the opportunity to be here and that opportunity has not been taken, therefore in the circumstances you can issue orders without the CEPU being here. It is not dissimilar to, for example, the Supreme Court issuing an order ex parte for an interim interlocutory injunction, having only heard one party and then reserving a liberty to apply to come back and make further submissions to discharge the injunction, and that is what I suggest you ought to do here so that whilst the order might have a time frame which lasts until next Monday that the CEPU can apply on short notice, an hour, two hours, if you will to come back to the Commission and seek to have the order discharged or varied.

PN127

THE DEPUTY PRESIDENT: Thank you, Mr Lucev.

PN128

MR LUCEV: Yes, I simply - there is support for that proposition in Mr Forbes' book, justice in tribunals at paragraph 9.3, speaking of ex parte orders that the person be notified as soon as possible, has an early opportunity to argue that there is no need to continue the restriction until trial. It is not the truth of the main claim in that sense that matters but the balance of convenience and, with respect, the balance of convenience in this case is all one way because of the possibility that there will be interruption to power supplies.

PN129

THE DEPUTY PRESIDENT: Mr Lucev, had that concluded that submission?

PN130

MR LUCEV: Yes, unless there are any further questions from you, your Honour.

PN131

THE DEPUTY PRESIDENT: I did want to raise the question of evidence. The Commission would certainly - would view evidence in support of the applicant's submissions as being important and I ask are you in a position to adduce evidence now?

PN132

MR LUCEV: I can, if you wish to hear evidence, give you evidence about what we say has transpired today. I say to you that in the context of proceedings in the Federal Commission it is, however, unnecessary. There is a decision of the High Court of Australia in The Queen v The Commonwealth Conciliation and Arbitration Commission ex parte The Melbourne Tramways Board (1965) 113 CLR, and I can't recall the exact page it starts at but it is around page 250, where the majority of the Court, including the then Chief Justice Sir Garfield Barwick and Justice Menzies, said that it is unnecessary in Federal Commission proceedings to adduce evidence where statements are made uncontested from the bar table because this Commission can accept uncontested submissions from the bar table as evidence.

PN133

If your Honour accepts that proposition then it is unnecessary for us to lead evidence until such time as the CEPU comes along and says, well, that is not the case and rather than delay the proceedings this evening I would invite your Honour to take that course. If it is necessary to go and get that particular volume of the reports from the Commission library, if that can be done, then I'm happy for - to do that or to invite your Honour to do that rather than spend another half hour or hour leading evidence which we say will simply confirm the purport of my instructions which are that there is a threat to supply and that, as I've indicated, the CEPU maintenance staff, we have been told, will return back and you've heard the evidence today with respect - not the evidence, but you heard Mr Cain, in the conference, say that that is exactly what happened today, that the maintenance people were turned away. They were harassed, intimidated, they were not allowed to cross the picket line.

PN134

So we say that you are in a position, because of the nature of these proceedings, to accept what you're presently told until such time as it is challenged and that stands as evidence until such time as it is challenged.

PN135

THE DEPUTY PRESIDENT: Thank you, Mr Lucev. It is - - -

PN136

MR LUCEV: I'm sorry to interrupt, your Honour. I should say that if your Honour doesn't accept that then we can put evidence but I'm inviting your Honour to accept that and if your Honour isn't prepared to accept that then I would say to you, well, I will go away and get the law report and argue it more formally than that if necessary because it is clear that that is what the High Court has said, that it was binding on you in these proceedings.

PN137

THE DEPUTY PRESIDENT: Thank you, Mr Lucev. Having heard that submission it is my view that in these particular circumstances the applicant should adduce evidence now and that evidence should address the question of the term of the order, the opportunity for the CEPU, at short notice, to make application to have the order discharged and the evidence should also be directed towards the consequences for the provision of power to the community of Western Australia in the event that an order was not issued and was not complied with. It is my view that the applicant should do this. My associate has used her best endeavours to contact the CEPU and was able to speak to Mr Game briefly in Merredin but has been unable to make any other contact with any other officials of the CEPU.

PN138

I've noted your submissions but I would now invite you to proceed to give that evidence or to have that evidence provided to the Commission so that this matter can be determined in accordance with the requirements of section 127.

PN139

MR LUCEV: If that is the case, your Honour, perhaps could I seek your indulgence just to have a two or three minute adjournment again so that I can arrange for the appropriate witness to give his evidence in a timely and orderly fashion, if it please the Commission.

PN140

THE DEPUTY PRESIDENT: Certainly and it would be appropriate in the adjournment also if some thought could be given to the provision of the amended draft order that the applicant is seeking the Commission to issue as an order.

PN141

MR LUCEV: If it please the Commission.

PN142

THE DEPUTY PRESIDENT: We will now adjourn for about five minutes.

SHORT ADJOURNMENT [9.25pm]

RESUMED [9.32pm]

PN143

MR LUCEV: If it please the Commission I call Mr Sibenaler.

<FERNAND SIBENALER, AFFIRMED [9.33pm]

<EXAMINATION-IN-CHIEF BY MR LUCEV

PN144

THE DEPUTY PRESIDENT: Mr Lucev, first, if you would spell, given the circumstances, the name of the witness?

PN145

MR LUCEV: Yes, I think I will ask the witness his full name and correct name and get him to spell that for the transcript, your Honour. Mr Sibenaler, can you please give your full name and then spell it for the transcript?---My full name is Fernand, F-e-r-n-a-n-d, known as Fred to my colleagues, and Sibenaler, S-i-b-e-n-a-l-e-r.

PN146

Right. And what position do you occupy at Western Power?---I'm the Manager of the Generator Manager Maintenance for Western Power.

PN147

Right. And can you indicate to his Honour what your duties and responsibilities are in that regard, shortly?---My duty and responsibility is to maintain the - effectively, all the plant portfolio within Western Power, that's Muchea Power Station, Kwinana Power Station and the gas turbine at Pinjar and Cockburn

PN148

Right. And did you become aware today of any industrial action being taken within Western Power?---I became aware at 6 o'clock this morning that a picket line was put at Kwinana Power Station preventing my work force to enter the power station.

PN149

Right. And could you just tell his Honour who that work force consists of?---The - my work force consist of the tradespeople, general assistant, technician, planner/co-ordinator, engineers and a superintendent, supervisor, that's about - generally, that's - and there's about 70 odd people with Kwinana Power Station that maintain that - that station for me.

PN150

Right. And by which unions are those people covered?---The ASU are covering technician, planner/co-ordinator and they covering the engineers through an agreement with the - the APESMA and the other principle union are the trade person and general assistant and are covered by the CEPU.

**** FERNAND SIBENALER XN MR LUCEV

PN151

All right. And with respect to the trades persons and general assistants has there been any industrial action on the site today?---No, the - the site has been free from industrial issues since I've taken the - that task of managing the - the work force, commencing in 1999.

PN152

All right. And in terms of today, have there been any employees, any CEPU covered employees, who have not been able to attend for work?---No, they've all been able to attend to work until this morning.

PN153

Right. And, from this morning, have they been able to attend for work?---This morning I've been told that a picket line was established by the - the contractor's work force and they sought to comply with not crossing the picket line. Now, the - just to elaborate on this, my engineers, my supervisor and my section leaders, if you like, have crossed the picket line and have addressed the day - the day to day issue and informed me of what's going on at the power station. The trade people have decided, as you heard the evidence from the ASU, that - on safety and - ground, that they will not cross a picket line and decided to go home.

PN154

All right. And in terms of the duties of those persons who have gone home, what tasks were not done today at Kwinana as a consequence of that?---A lot of the task are varied but the - the main duty of our routine workers are to attend the emergency work that occurred to - to ensure that the plant operate reliably. There's routine work that needs to be done but they - if we want to be specific are not urgent urgent but it's a - a good maintenance regime to attend to this as, if we don't, it could lead to a major problem later on.

PN155

In terms of the CEPU work force how many of them would ordinarily have attended for work today, approximately?---Today is - for - for the - for you, your Honour, I - I clarify that. We run a - a shift arrangement whereby, on any one day, I've got about 45 - 40 per cent of the work force and - so that we can have a full complement of workers seven days a week, from 7 to 5 pm. The - every Wednesday we have a - a full complement of the work force, that's where everybody do live at the - at the power station and every other day it's about 45 per cent of the work force so that I've got to do - I've got 70 people and of 70 people, to allow a - a coverage of seven days a week, for 37.5 hours, we've got to split them up.

**** FERNAND SIBENALER XN MR LUCEV

PN156

THE DEPUTY PRESIDENT: Did you say 70, seven zero?

PN157

THE WITNESS: Seven zero people in total to run the maintenance section at Kwinana Power Station.

PN158

MR LUCEV: Right. And how many of those would have been on duty today, approximately?---Approximately I would say about 15 trade person plus my engineer and my supervisor.

PN159

Right. And of those 15 who were due to be on duty how many were on duty?---None went to work today, they decided to - to go home.

PN160

Right. And when are those 15 people or their equivalents due to next be on duty?---They should be starting again tomorrow morning at 7 am and as Paul Burlinson pointed out they will meet at the - at the gate and, whether they intimidated or not, decide whether they would cross a picket line.

PN161

And between the hours that they are on day shift what happens if there is a maintenance problem, for example, at half past 10 tonight?---Well, if there's a maintenance problem at half past 10 tonight the power station operator will call my supervisor who in turn will try to make contact with our - our work force to attend to work and address the work this evening. If that's - if that's the case then normally it - we - we try to attend the site within one hour of a - an emergent call.

PN162

And are there CEPU employees on call for that purpose?---No, they're not on call. They are - as part of the EBA they are - have stated that they would be available for - for work. In other word, we are paying a - if you like, a pre-paid overtime to cover for emergent work.

**** FERNAND SIBENALER XN MR LUCEV

PN163

Now, can you explain to his Honour what the possible consequences are if there is a breakdown in plant tonight or tomorrow as a consequence of CEPU employees not attending for work?---The difficulty that we have is that due to the shortage of gas to our major plant I'm unable to run my gas turbine to supplement the coal fire unit. Currently we've got three unit at Kwinana Power Station, a - a 200 megawatt and two 120 megawatt units and they are operating at - at their maximum operating condition to - to provide a supply to our customer. If we have a - an emergent work and we are - we are unable to attend, the operators have a duty as part of the ticket to ensure that the plant is safe and they will shut that unit down till we are able to repair it. And if that's the case, because we don't have any backup currently due to the gas shortage, that being the consumer of WA would be on a rotation and I don't know how many people will be affected but I be - say there'd be in the order of 50,000 customer put on a rotation, including some of the major industrial consumer. One of the difficulty you saying is at - tonight, for example, let's assume that we do have a breakdown. Because the - we don't have a lot of industry operating we will be able to - to supply our commitment to our customer, however, in the morning when the industry start kicking in we won't have enough capacity to supply and therefore we - we will - we will be shutting down to ensure that the - the rest of the plant are able to meet with the - the demand.

PN164

And just in terms of shut down, apart from the residential, the ordinary residential customer, you spoke of other large industry customers who might have to be shut down or have supply restricted can you give his Honour some indication of who those large industrial customers might be?---Well, some of the large customer are Simco at Kemerton that would be affected by it. Worsley at - in Collie will - will be affected although they have their own generating plant, but we - we've got an agreement to - to help one another. And then you've got all of the industrial - small industrial/commercial type people around the Perth suburb that will be affected on a - a rotation basis. Alcoa may also be affected but, again, it depends how we rotate and - - -

PN165

THE DEPUTY PRESIDENT: Sorry. Could you repeat that last sentence?

**** FERNAND SIBENALER XN MR LUCEV

PN166

THE WITNESS: Alcoa.

PN167

THE DEPUTY PRESIDENT: Alcoa?---Yes, may be affected as well as part of our large customer.

PN168

MR LUCEV: If his Honour is minded to issue an order before the CEPU people to attend work and to cease the industrial action what would be the consequence if that order was not complied with?---Well, if the order was - was not complied with I still be in the same problem at the moment, that if we do have a breakdown of plant then the customer of WA will suffer a blackout. May I add at the moment that that's critical until Saturday afternoon we believe that it - and there's no certainty about this, be able to supply enough gas for us to start firing our generator at the gas turbines unit at Pinjar and Cockburn.

PN169

Right. So - - -?---At the moment - sorry, Tony. At the moment, we are unable to - to fire those unit as Alinta Gas, for example, also supply a customer with gas and there's an agreement between Alinta Gas, Western Power and Alcoa with the distribution of gas currently, so that the Epic Energy are dividing the - the quantity of gas that's supply, as per contract.

PN170

Right. So, at least until Saturday afternoon and possibly longer, there will be a critical situation with respect to a shortage of gas supply?---Correct.

PN171

There is no certainty, from your point of view, that that position won't go beyond Saturday afternoon?---Well, I can't say that until I've talked to Epic Energy. The - all the information that I have is by tomorrow afternoon they'll be able to recommission the unit and it takes something like - once that's commissioned, six to eight hours to - to build up the gas - the pipeline with enough pressure to - to provide gas to our units. Our units operate on certain pressure so there's a terminal pressure of 3.1 MPA of gas that has to be delivered. If it's below that our unit will not operate.

**** FERNAND SIBENALER XN MR LUCEV

PN172

Right. And what do you understand to be the position if there is a breakdown tonight and a CEPU maintenance employee goes to Kwinana to work, what do you understand will happen?---Well, that's a catch 22. My understand is that - that unless the - the guy can sweet talk the union official - not the union official but the guys at the - at the picket line, he might or he might not get through. That's as much as I can tell you.

PN173

And in respect of that what have you - or have you been told this afternoon what the position is of the persons on the picket line?---The position of the picket line, as I've said today, we've been told that only essential services, essential people will get through the - to the power station and the essential people are the operators and the - the core plant operators to - to attend the - the current units.

PN174

Right. But not the maintenance people?---Not the maintenance people, that's another issue that we haven't explored. As far as I'm concerned that - it could be - they might get through, they might not get through, we haven't tested that.

PN175

Have you been told that they are likely to get through?---Again, I'm not in a - a position to - to state with 100 per cent surety that they will get through.

PN176

Have you been told what will be said to CEPU maintenance employees if they approach the picket line and try to cross it?---No, I haven't been told anything to that effect to any - as far as I know, to the best of my knowledge, that would prevent the - the people from entering.

PN177

How do you come by that knowledge, that they will prevent people from entering?---We've been told today during the course of today's action, that our people - the maintenance people have been intimidated and called certain name to support the action of the contractors and therefore not to - to cross the picket line.

**** FERNAND SIBENALER XN MR LUCEV

PN178

Now, if his Honour issues an order do you have any objection to the CEPU being given the ability to apply at short notice to discharge or vary the order?---No. I don't have any objection at all. The - with the - it will give us time to perhaps address other avenues to resolve the - the industrial issue.

PN179

When you say "other avenues" do you understand that there is an application in the Western Australian Industrial Relations Commission made on behalf of Skilled Engineering to deal with the picket line?---That is correct.

PN180

Is it Western Power's intention to endeavour to intervene in those proceedings to put submissions as to why the State Commission ought to issue orders disbanding the picket line?---Yes.

PN181

I don't know whether there is any dispute about this, your Honour, whether it is necessary for me to tender a copy of the Western Power Certified Agreement 2002. We say that that is the certified agreement which applies to the work concerned. I am content to assert that if your Honour is content to accept it.

PN182

THE DEPUTY PRESIDENT: The Commission does have a copy of that particular agreement.

PN183

MR LUCEV: Yes.

PN184

THE DEPUTY PRESIDENT: It is up to you. However, if you would wish to tender it, it certainly can be done.

PN185

MR LUCEV: I ask the witness be shown a copy of this agreement.

PN186

Mr Sibenaler, that is a copy of the Western Power Certified Agreement. Do you understand that to be the agreement which applies to the work of the CEPU maintenance employees at Kwinana?---Yes, that is correct.

**** FERNAND SIBENALER XN MR LUCEV

PN187

I tender that, your Honour.

EXHIBIT #1 COPY OF WESTERN POWER CERTIFIED AGREEMENT RELATING TO WORK DONE BY THE CEPU MAINTENANCE EMPLOYEES AT KWINANA

PN188

MR LUCEV: The proposed term of the order, the proposed life of the order that we've suggested to his Honour, Mr Sibenaler, is to have the order expire at 5 pm next Monday. Is that an appropriate term from your point of view?---Yes. As discussed with you I believe it is an appropriate term.

PN189

Unless your Honour has got any other questions or anything else that you think needs to be addressed that is the evidence of Mr Sibenaler.

PN190

THE DEPUTY PRESIDENT: Thank you.

PN191

I would like to clarify, Mr Sibenaler, the correct title of your position, was it Manager of Maintenance for Western Power?---Manager, Maintenance, correct.

PN192

I would like to ask you in your assessment, in your judgment, what is the chance or the possibility or the likelihood of a shut-down in plant leading to power being cut?---Your Honour, that is a very difficult question for me to answer. We maintain our plant reasonably well, however, I'm not able to tell you when the plant when the plant was to break down. We do address on a day-to-day maintenance on the plant and - and that is why we work on the work force and to date we've been very successful in providing the customer of WA where they've relied on power supply.

PN193

So are you putting it to me that you're really not able to make a comment as to the likelihood that there could be a failure in the plant?---I can't tell you. If I tell you that it is unlikely, Murphy's law, it is going to be a far better start now you've got a breakdown.

**** FERNAND SIBENALER XN MR LUCEV

PN194

Mr Lucev, I understand from the application that there was reference to 10.30 pm on Thursday, 30 October 2003, as being the time from which significant loss and damage to Western Power and its customers, etcetera, could occur. Is that something you are able to confirm and just to comment on?

PN195

MR LUCEV: That was on the premise, I think, your Honour, that the operators, the ASU operators, might not attend for work and at 10 or 10.30 pm tonight the machines would have to be wound back if the operators were not there. Now, the ASU operators are there, as you've heard, but that doesn't address the critical question of what happens if something breaks down and that is something which, as Mr Sibenaler said, he is unable to say to you that when it is that something might break down but if something does break down then the consequences are significant for the people of Western Australia.

PN196

The application does have 10.30 in it. What we now say is in respect of that particular ground that the industrial action, which is the CEPU maintenance employees not attending for work in accordance with their contract of employment, is likely to cause power blackouts throughout the South West interconnected system if there is a breakdown in the equipment and of course we can't risk that happening, we can't risk them not being there to fix it or being able to come in to fix it because then we will have, as Mr Sibenaler said, rolling power outages.

PN197

So at the time we drafted the application there was a likelihood that we would have to wind machines back at 10.30. What we now have is the prospect of plant breakdowns which, if they are not fixed, will cause power outages.

PN198

THE DEPUTY PRESIDENT: So in relation to your intention to amend the draft order to be submitted to 9.30 pm, I wondered if you or the witness could indicate any information in relation to the 9.30 or 10.30 pm commencement time for the order.

**** FERNAND SIBENALER XN MR LUCEV

PN199

MR LUCEV: I don't think it matters in this sense, what time it is, but as soon as the case is complete we would seek, as the order presently says in 7.1, that the order shall come into effect immediately and I used 9.30 pm earlier as an example of when it might come in if we reached sort of completion at that stage. It might now be that the order doesn't issue, if one issues until 10.30 pm, for example, but it will still come into effect immediately or at such time shortly thereafter as the Commission might nominate. It might be 10.30 pm, it might be 11 pm, for example.

PN200

THE DEPUTY PRESIDENT: I wonder if Mr Sibenaler could clarify the duration which any disruptions to power could last for? He did make some reference to that but if that could be clarified for the Commission.

PN201

MR LUCEV: All right.

PN202

Mr Sibenaler, if there are breakdowns in the plant which are not able to be fixed or maintained how long are there likely to be power outages for?---If one of the major unit is run down for - because of a safety reason, that is we can't maintain it, the unit takes about 45 minutes to run down and let's assume that within a couple of hours we can fix the problem, it will take a minimum of four to six hours for the unit to run up again because of metal fatigue we got to look after the unit. It is not a gas turbine. It is a significant machine and it takes some time to run. Those generator units, by its design, when they are on they stay on until they're required to be off for maintenance or they're not required by the system. But with our fleet of gas turbine we can cover for that - those period. The significance of our problem at the moment is that we got enough generating plant to provide - continue to supply to customer and we can't get the fuel to it and therefore the - during the day the demand versus supply, it is about equal. Any of the plant that trips we are now going into a rolling blackout.

**** FERNAND SIBENALER XN MR LUCEV

PN203

If you are unable to have that plant maintained because CEPU maintenance employees are not crossing the picket line how long will those rolling blackouts last for?---Well, it will last as long as when the unit can be - we can give it back to the operators to run up, so whatever down-time we take to fix to the time it gets people to get on site plus six hours on top of that. So if it takes six hours to get people to come and fix it or 12 hours you have to put another six hours on top of that. Can I also say, to clarify that, the longer the unit is off - for example, we have hot shut-down, cold - warm shut-down and cold shut-down, and what I mean by that, if the unit can be returned to service within two hours it would take six hours to - if it is a - if it is 12 hours or more the unit is off for whatever reason it will take another eight - it will take eight to 10 hours and if it is a unit that is off for more than three days normally it takes 12 to 16 hours to run the unit up, because I've got to warm up the - the whole of the turbine.

PN204

Can I just endeavour to summarise that then, Mr Sibenaler. If, for example, the employees - if there is a maintenance breakdown and the employees do not return to work then there will be rolling stoppages for so long as they don't return to work?---That is correct.

PN205

And then depending on how long that machine has been out it could be anywhere between an additional six and 16 hours before the machine comes back on?---That is correct, unless I can get gas to my gas turbine.

PN206

And as presently advised, the earliest that that is going to happen is Saturday afternoon?---Saturday.

PN207

But there is no certainty about that?---I haven't been given - like anything else, when you do commissioning there could be some other problem associated with it and therefore Epic are not able to guarantee you as with 100 per cent surety that we're going to have that by Saturday. I say the best we can do for you is some time on Saturday and it will take about three of four hours to pack your line and then we - we will get unrestricted use gas supply to our units.

**** FERNAND SIBENALER XN MR LUCEV

PN208

Unless there is anything further - - -

PN209

THE DEPUTY PRESIDENT: A final matter I would like to raise is the question, Mr Lucev, that you have commented on earlier in another context and that was that if a picket line was in existence the question - and the witness may wish to comment on this or you may wish to make a submission - in relation to Western Power's position in relation to any assistance that would be given to employees by Western Power.

PN210

MR LUCEV: Mr Sibenaler, can I ask you whether you understand that there is a picket line in existence or there has been a picket line in existence today?---Yes, there has been a picket line in existence today.

PN211

Right. In terms of assisting employees through that picket line were any steps taken today to assist employees through the picket line?---Some time about 2 o'clock they did offer to - to bring the police and escort people at the - at the - at the workplace but a lot of the people have declined because of, what you call it, retribution at a later stage.

PN212

Right. And is Western Power prepared to take steps to endeavour to assist people through the picket line tomorrow?---We are prepared to do that. One of the issues that I'm contemplating is to get a bus, for example, and escorted by the police but again it is - I'm not going to force people to go on the bus, it is a matter for the - the employees to decide whether it is safe or not. There - there could be other issue like bringing them by helicopter and all of this but I don't think that that is a reasonable proposition at this point in time.

PN213

But Western Power is prepared to take steps to assist them through the picket line?---Yes. And I - your Honour, I don't want to endanger the life of other people. Might I say that one of the operator today, cool bin operator, took it upon himself and drove through the picket line. Now, that is a serious issue not just for Western Power but for the person that is doing the right thing by Western Power and then all of a sudden he is confronted with a - a legal problem to deal with because another party got injured through his fault and we don't want to see that happening.

**** FERNAND SIBENALER XN MR LUCEV

PN214

In terms of the Kwinana Power Station, is the entrance to that power station also used as the entrance to the Cockburn Power Station?---That is correct. The Cockburn staff are using the main entrance to power station because they're using amenity facility before they go to Cockburn. However, the - some people do - from Cockburn can get access through the south side of that station but the Kwinana Power Station people don't - do not have that facility of crossing Cockburn site into Kwinana until we set up a procedure, safety procedure, in place so that it is safe to do so.

PN215

The present practice though is for the Cockburn people to use the Kwinana entrance?---That is correct.

PN216

THE DEPUTY PRESIDENT: Mr Lucev, are you or the witness able to clarify that in accordance with the draft order that you have submitted that it is intended that the order would apply to the three sites listed?

PN217

MR LUCEV: It is intended, your Honour, that it apply to the three sites listed, which is Kwinana, Cockburn and Muja on the basis that in our view it is possible that there will be industrial action at Muja. Certainly earlier this afternoon when we drafted the order we believed that that action was probable and we still believe that in the circumstances of this case it might be probable because, as we understand it, the rates of pay which are in dispute emanate from the contractors' rates of pay at Muja and therefore there might be industrial action in sympathy at Muja by those contractors' employees if the contractors' employees at Kwinana and Cockburn don't get their - what they seek in terms of rates.

PN218

So we say that it is appropriate to include Muja in all of those circumstances and bearing in mind that Muja is the major baseload power station in Western Australia and we wouldn't want to, for example, on Saturday afternoon if there is still no gas being supplied find that there is a picket line at Muja and we can't get employees through and that there is then a major maintenance problem at Muja and no power on Sunday.

**** FERNAND SIBENALER XN MR LUCEV

PN219

THE DEPUTY PRESIDENT: Mr Lucev, can you or the witness confirm that the evidence specifically given relates to all three sites?

PN220

MR LUCEV: The evidence that Mr Sibenaler has given relates to the Kwinana/Cockburn site and that is why I asked the question about the Cockburn entry being through Kwinana. Mr Sibenaler's evidence doesn't relate at this point in time to the Muja Power Station but what we say is that on the basis of what we believe to be the case this afternoon that there is a likelihood that it could extend to Muja at some point in time. Rather than giving that perhaps I can ask Mr Sibenaler.

PN221

Do you understand that there is a possibility that there may at some point in time over the next few days be industrial action at Muja Power Station?---My understanding and my belief is that if we don't resolve the issue with the picket line at Kwinana Power Station and the - that the - the contractors are not - well, if we can't deal with the issue then that will escalate it at Muja Power Station.

PN222

Why do you have that belief?---We - we have a shut-down at one of the major unit at Muja Power Station and we are using in excess of 120 contractors there at Muja Power Station and this is done by United - the United Group in associated - in association with ourselves. My belief is - also that I've been told this morning, that the Collie people or the United Group are aware of a picket line being put this morning at - at Kwinana and we were not aware of it.

PN223

So they were aware of it before - - -?---They were aware of it before we were. So that on that basis I do believe that whatever the outcome at Kwinana Power Station, whether it be a good or a bad one, if it's a bad one then the - the AMWU will say to - to put some picket line at Muja Power Station.

PN224

And at the moment, given that there is, as I understand your evidence, a major shut-down there, you're particularly exposed at Muja?---We are exposed at Muja as well as Kwinana, that is correct.

**** FERNAND SIBENALER XN MR LUCEV

PN225

All right.

PN226

THE DEPUTY PRESIDENT: Thank you. I have no further questions of the witness.

PN227

MR LUCEV: If it please the Commission, that is the evidence of Mr Sibenaler.

PN228

THE DEPUTY PRESIDENT: Thank you. Witness may step down.

<THE WITNESS WITHDREW [10.12pm]

PN229

THE DEPUTY PRESIDENT: Mr Lucev?

PN230

MR LUCEV: Thank you, your Honour. We say that on the basis of the submissions and the evidence that has been given that it is clear that industrial action is occurring at the Kwinana Power Station which is also the entry to the Cockburn Power Station. That industrial action takes the form of a picket line by persons who have a dispute related to the activities of Western Power's maintenance contractor and their employees. That picket line constitutes itself industrial action under the Act but so too do the acts of those CEPU maintenance employees who are not crossing the picket line.

PN231

In those circumstances we say that there is industrial action which is happening and certainly in terms of tomorrow, that there is further industrial action threatened, impending or probable. In relation to the Muja Power Station on the basis of the evidence that Mr Sibenaler has just given there is clearly again industrial action which we say is probable in all of the circumstances for the reasons that he gave.

PN232

In terms of the evidence it is clear, we say, that the work is the work of Western Power, that the CEPU maintenance employees are required to perform but which they are not performing is work which is covered by a certified agreement and in that respect I refer you to the parties and scope clause of that agreement, which is clause 4 on page 2, and I also refer you in that regard to the schedules which set out the wages, employees' rates of pay, at the back of that document. The pages aren't numbered, unfortunately, but we will see that the various categories of employees are set out, firstly, salaried employees then the wages employees' rates of pay and then the rates of pay for apprentices.

PN233

So we say it is clear that the agreement applies and there doesn't appear to be much dispute about that. Given that there is then industrial action in respect of work that has been regulated by a certified agreement the Commission has the discretion to issue directions that the industrial action stop or occur and ought to do so as quickly as is practicable. In terms of the exercise of your discretion it is the case, we say, that it is necessary for you to exercise that discretion in order to ensure that the possibility of interruption to supply of energy to ordinary West Australians and West Australians in industry is not interrupted.

PN234

Mr Sibenaler wasn't able to say to you what the likelihood of that is but it is one of those imponderables and if there is a problem we need to be in a position, for the reasons that Mr Sibenaler outlined, to get a CEPU maintenance employee in there to fix it otherwise there will be rolling power stoppages or outages until a person can get in to fix it and therefore there is a necessity to issue the directions for those persons to attend for work, notwithstanding the existence of the picket line.

PN235

So in all of those circumstances your Honour we seek an order in terms of the order that I am about to hand to you, which has been amended by hand to take account of the fact, in particular, that the ASU no longer sought to be bound by that order and also to take account of your comments about the term of the order and the time of operation.

PN236

THE DEPUTY PRESIDENT: Does that conclude your submissions?

PN237

MR LUCEV: That concludes my submissions and those submissions should be taken to include everything that I said in my opening as well, if it please the Commission.

PN238

THE DEPUTY PRESIDENT: Thank you. Having heard the submissions and the evidence that has been put forward and now having been provided with an amended draft order I propose to adjourn for approximately 30 minutes to peruse the amended document and then to return to take the matter further. We will now adjourn.

SHORT ADJOURNMENT [10.17pm]

RESUMED [11.07pm]

PN239

THE DEPUTY PRESIDENT: This is an application under section 127 of the Workplace Relations Act 1996 in which Western Power Corporation is seeking an order to stop or prevent industrial action occurring at the Kwinana, Cockburn and Muja Power Stations in the State of Western Australia. Having heard Mr A. Lucev on behalf of Western Power and having heard and considered the evidence of Mr Sibenaler, the Manager, Maintenance, of Western Power and in the absence of any submissions and evidence to the contrary, I am persuaded that I should exercise my discretion in favour of making an order sought by Western Power as amended by myself. My associate will hand an order to the parties. I adjourn this hearing.

ADJOURNED INDEFINITELY [11.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

FERNAND SIBENALER, AFFIRMED PN144
EXAMINATION-IN-CHIEF BY MR LUCEV PN144
EXHIBIT #1 COPY OF WESTERN POWER CERTIFIED AGREEMENT RELATING TO WORK DONE BY THE CEPU MAINTENANCE EMPLOYEES AT KWINANA PN188
WITNESS WITHDREW PN229