C2003/5263, Transcript of Proceedings [2003] AIRCTrans 5302 (2 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2003/5263

SOUTH COAST EQUIPMENT PTY LIMITED

and

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Notification pursuant to section 99
of the Act of a dispute re long service
leave at BHP Steel Operations in Port
Kembla

C2003/6166

APPLICATION FOR AN ORDER TO
STOP OR PREVENT INDUSTRIAL
ACTION

Application under section 127(2) of the
Act by South Coast Equipment Pty Ltd
for an order to stop or prevent
industrial action

SYDNEY

4.10 PM, THURSDAY, 13 NOVEMBER 2003

Continued from 7.11.03

PN181

_______

PN182

THE COMMISSIONER: Can I have appearances, please?

PN183

MR J. MURPHY: May it please the Commission, I appear for South Coast Equipment.

PN184

MR D. KELLY: If the Commission pleases, for the Construction, Forestry, Mining and Energy Union.

PN185

THE COMMISSIONER: Yes, Mr Murphy?

PN186

MR MURPHY: Commissioner, you might recall this matter has some history to it. There was an earlier compulsory conference at which I attended and indicated at that time that we would be seeking dispute orders in relation to strike action that was taking place.

PN187

You then made a recommendation that the strike action cease, and that discussions take place. I think this was on 24 October. You might recall - 23rd I am told. There was a complaint being made by the union as to non-payment of a period of 1 and a half hours relating to an unauthorised stop work meeting that had occurred back in September and that was said to be the main source of concern.

PN188

We made it clear that we weren't prepared to discuss that, and I think as part of your recommendation it was stated that the union reserved its rights to seek to recover that money, and we certainly take no issue with that.

PN189

Since then there has been some further discussion where there was a difficulty in relation to Mr Michael Auburn which, I think, came back before you on another occasion. We are not quite sure of the status of that now, and I understand that was a report back before you last week, where there was a suggestion of a refusal by the employees to split crib breaks, so that on a particular job, or a particular shift, they were all stopped for their crib break or their meal break at the same time disrupting the flow of service to the client.

PN190

I have an affidavit which sets some of this out. It might be appropriate if you could take a minute to look at this. You already have an affidavit from Mr Auburn, and in paragraph 9 of that there is a reference to a threat by the organiser - I am sorry, the delegate - to engage in this industrial action whereby there is a refusal to split meal breaks, and thus, disrupt the flow of work. That is at paragraph 9 in the affidavit of Mr Willis that I just hand up now deals with events since then.

PN191

MR KELLY: Commissioner, I don't know if I am able to make a point of view - is that appropriate?

PN192

THE COMMISSIONER: Yes, Mr Kelly.

PN193

MR KELLY: I have just been handed an affidavit and I would be a bit worried about your reading that affidavit without our being able to present the information from the delegates that has been - refers to them. They weren't advise at all that this hearing was on, and I've had some brief instruction over the phone from them. They weren't told that it was in the Commission, I had to tell them, and they are stuck down in Wollongong.

PN194

It is an extremely serious matter, Commissioner, and I don't think it is really right that we should be able to proceed without people being able to defend what they said or what they didn't say. Also, I've just been handed this stuff here to, and I haven't had a chance to check it over properly either.

PN195

THE COMMISSIONER: Yes. Mr Murphy, have you got anything to say to that?

PN196

MR MURPHY: Well, the situation is this, it is one, I think, Mr Kelly has agreed. It is a serious situation and there is some urgency about it. There is a ship coming in to Port Kembla harbour tomorrow. The client there requires - this is dealt with in paragraph 12 - requires a continuous service of loader operators to keep the loading operation, or unloading operation going without a break. This threat is timed deliberately, we say, to disrupt that particular operation that starts tomorrow.

PN197

Now, the processes of the Act that the Commission is to attempt to settle industrial disputes as quickly as possible and to deal with applications for dispute orders in a similar way. The dispute orders were faxed to the union's Wollongong office and Sydney office at just before 1 o'clock this afternoon.

PN198

Now, if the union has taken the view that they ought not bring their delegates up for the hearing that is a matter for it. They were certainly here on the last occasion when we indicated we wished to seek orders. No explanation has been given as to why they are not here now.

PN199

THE COMMISSIONER: Mr Murphy, can I just establish with you, there is no strike?

PN200

MR MURPHY: No, it is not a strike. It is a work ban.

PN201

THE COMMISSIONER: No, okay, I just wanted to check. It is what you say is a work ban. As I understand it, on some earlier occasion, Mr Kelly put the view that, in fact, what the employees were doing was justified under the Enterprise Agreement.

PN202

Now, I realise there is a debate between you about that particular thing, but do I take it that that is the action - - -

PN203

MR MURPHY: Yes.

PN204

THE COMMISSIONER: - - - that is being complained about? It is not some other - it is just on previous occasions there has been strikes and other things.

PN205

MR MURPHY: This is a refusal to split the meal breaks so that the operation can go continuously. Now I understand it, there is said that there is an entitlement on the part of the employer - - -

PN206

THE COMMISSIONER: Certainly the agreement talks about staggering meal breaks by mutual agreement. I know that was raised last time.

PN207

MR MURPHY: It certainly has another flavour though when it is said that this is what will occur unless you pay the 1 and a half hours that we have been demanding.

PN208

THE COMMISSIONER: Yes, well, Mr Kelly I know what you say.

PN209

Mr Murphy, that may well be but I just want to establish the parameters of what the alleged action is, so that I know whether I'm dealing with something this big, or something this big, okay?

PN210

MR MURPHY: Well, in terms of size it is a big thing, because we're talking about a ship that is coming in. BHP is the client. They have been putting pressure on the company to bring the position - - -

PN211

THE COMMISSIONER: Mr Murphy, what I'm getting at is the definition of industrial action in the Act, okay? I'm looking at that. Obviously if there are no strikes or anything like that, we are talking about a very different thing to if there was a ban on something, or there was a refusal to do something. Obviously you would have to address me as to whether or not - I'm assuming you are saying there is industrial action?

PN212

MR MURPHY: Yes.

PN213

THE COMMISSIONER: The union is going to say whatever its members are doing is not industrial action.

PN214

MR MURPHY: It comes between (a) and (b).

PN215

MR KELLY: More than that. However, Commissioner, I would like to point out that there are workers who are splitting shifts - - -

PN216

THE COMMISSIONER: Yes.

PN217

MR KELLY: So - - -

PN218

THE COMMISSIONER: Sorry, what are they splitting?

PN219

MR KELLY: There are people who are splitting their crib breaks already on the plant, and Mr Willis is agreeing with that view that that is actually occurring.

PN220

I would like also to point out in terms of the whole process here, Commissioner, with a dispute grievance held procedure - it is my day off, and I've reminded the company, I get a call from our office in relation to this. The company hasn't tried to contact me to see if we can try and resolve this, whatever it may be, at local level. It seems ridiculous that we are forever coming up here rather than sit down and see if we can sort anything out.

PN221

THE COMMISSIONER: Well, maybe what we might do, and this is without prejudice to you pursuing your application, Mr Murphy, don't take it as being I'm just regarding your application, or the seriousness with which you obviously intend to pursue it, but would you have any difficulty if maybe we went off the record for, at least, a brief period of time to see whether we can get a resolution to this immediate difficulty, and then if we can't we go back on, and I'm looking at briefly in view of what the time is.

PN222

MR MURPHY: Yes, we don't have a problem with that.

PN223

THE COMMISSIONER: Right, thank you.

PN224

I presume, Mr Kelly, in view of what you said, you said you don't have any difficulty with that?

PN225

MR KELLY: I'm happy with that, Commissioner.

PN226

THE COMMISSIONER: We will go off the record.

OFF THE RECORD [4.18pm]

RESUMES [5.12pm]

PN227

THE COMMISSIONER: There has been some discussion with the parties, and between the parties, off the record and I am now going to make the following recommendations in relation to what I hope is the way forward in relation to this matter.

PN228

I recommend as follows: that the unions speak to the delegates tomorrow morning. The delegates then speak to the members and report to Mr Willis by 11.00 am, whether the employees, the members, will agree to stagger crib breaks on the Don Fran Bulic. I recommend that there be agreement to such staggered crib breaks. I also recommend that there be a report back of the matters in the Commission tomorrow, 14 November 2003 at 2.00 pm.

PN229

In the event that the delegates report to Mr Willis as per paragraph 2 that there has been agreement to stagger the crib breaks, the company's solicitors will notify the Commission and there will be no need to attend the proceedings at 2.00 pm, and the proceedings will then be stood over until their previous report back, which was previously listed for 2 December.

PN230

In the alternative, if the delegates report to Mr Willis that there is no such agreement to staggering the crib breaks, then when the matter is on for hearing tomorrow afternoon, the company will press for its orders under section 127.

PN231

I also recommend that both parties follow the disputes procedures set out in the certified agreement, and that discussions between union representatives and company representatives occur next week in an endeavour to resolve the matters that are in dispute between them.

PN232

Now, is there anything that either of you wanted to add at this point? No? Right, thank you. The matter then are both adjourned until 2.00 pm, tomorrow, 14 November. Thank you.

ADJOURNED UNTIL FRIDAY, 14 NOVEMBER 2003 [5.14pm]