C2003/301, Transcript of Proceedings [2003] AIRCTrans 5368 (4 December 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2003/301

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the
Act by United KG Pty Limited and Automotive,
Food, Metals, Engineering, Printing and
Kindred Industries Union for an order to
stop or prevent industrial action

PERTH

3.09 PM, WEDNESDAY, 18 NOVEMBER 2003

PN1

MR M. BORLASE: I appear with DAVID PRETSOL on behalf of the applicant.

PN2

MR L. EDMONDS: I appear on behalf of the Australian Manufacturers Workers Union.

PN3

THE DEPUTY PRESIDENT: Yes. Mr Borlase?

PN4

MR BORLASE: Thank you, sir. Sir, this is an application seeking orders pursuant to section 127 of the Act. As outlined in the application, employees of United KG Pty Ltd engaged to work at the Muja Power Station at Collie commenced industrial action yesterday. I don't know if that is contested by the union and, if need be, we can lead evidence to that effect. And we understand that those employees are intending to meet tomorrow morning to determine whether or not they intend to return to work. Pursuant to section 127 of the Act we thought to attract the jurisdiction of the Commission, we need to, obviously, establish that there is industrial action actually happening in relation to a number of items and we say that the jurisdiction of the Commission is attracted by the fact that this is work that is regulated by a certified agreement which is registered in the Commission and is in current term.

PN5

So, I have just hand a copy of that agreement up to you. Sir, that is a copy of the United KG Pty Ltd Power Plant Maintenance Certified Agreement 2003. It was an agreement that was certified by the then Commissioner O'Connor on 29 April 2003 and is the agreement that applies to the work at the Muja Power Station being conducted United KG and the employees who we allege are engaged in industrial action at the moment.

PN6

THE DEPUTY PRESIDENT: One of the notations just above the date of 29 April is building, metal and civil construction industries. Is that right?

PN7

MR BORLASE: Sir, it - - -

PN8

THE DEPUTY PRESIDENT: It doesn't really matter but - - -

PN9

MR BORLASE: No. It is probably metal trades maintenance, in my view, rather than construction work per se.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR BORLASE: The work which is done is a combination of shut-down work, which is, I suppose, intensive maintenance work that is done in a short period of time, and also, I believe that there is also on-going maintenance work which is performed by United KG on behalf of their client, Western Power which is general maintenance work which of an on-going nature.

PN12

THE DEPUTY PRESIDENT: It might be something you give attention to when agreements are being certified, because that becomes the flag for any subsequent matters arising of the agreement get allocated.

PN13

MR BORLASE: Yes, I understand.

PN14

THE DEPUTY PRESIDENT: Just in terms of consistency of issues. I have had a situation in recent times where, probably not because of that, but at another site, one member in Perth was dealing with some of the maintenance contractors and I was dealing with another maintenance contractor, which has the propensity to, I think, potentially lead to differences because of probably different manner of putting things to the various Members. But it might be something, if you can take note of, Mr Edmonds, you might give some attention to as well in agreements that you strike. It seems to be mainly in the maintenance area in the metal industry that I have a degree of concern about the potential for inconsistencies to arise. Anyway, we are here now, Mr Borlase, and it has been allocated to me, and I am very happy to deal with it.

PN15

MR BORLASE: I am pleased to hear, sir, thank you. Sir, we had some discussions prior to proceedings commencing and Mr Edmonds indicated that he intended to request the Commission to adjourn into conference to see whether or not anything can be gained by conciliation in respect to this. And we had indicated to him that we would not raise an objection. I just wondered if Mr Edmonds still intended to do that, before I proceed too much further down the track at this point.

PN16

MR EDMONDS: Yes, sir, thank you, sir. I am certainly instructed, sir, that there is a dispute on foot, sir. That this dispute arose around lunch time yesterday, sir. It is conceded that industrial action is occurring, sir. But I would say, sir, there is a meeting organised for the workforce tomorrow morning at 7 am and it is my understanding that the workers will be returning to work on that day, sir, and I wonder whether perhaps it is more useful in the circumstances to attempt to resolve this matter without proceeding down the path of orders being issued.

PN17

THE DEPUTY PRESIDENT: Have there been any discussions of any depth prior to these proceedings between the parties?

PN18

MR BORLASE: Yes, sir. I am probably in a better position to outline to you the circumstances relating to that. Sir, there are three issues, I think, which are pertinent. There is a dispute which, I believe, that you are aware of as a result of an application between Thiess the CFMEU that you presided over this morning relating to a stoppage where CFMEU members allegedly took action in support of Skilled Engineering employees who have a dispute at the Western Power Naval Base Power Station. On 4 November Mr Steve McCartney, who is an Organiser with the AMWU, held a meeting with employees of United KG down at the Muja Power Station to outline to them the nature of a dispute that was going on between the Skilled employees, the AMWU, Skilled Engineering and other companies at the Naval Base Power Station, seeking payment for those employees at the same rates as those contained within the agreement which is before you now.

PN19

The situation there is that Skilled employees are getting paid in accordance with the Western Power Employees Agreement and the claim of the Skilled Engineering employees and the AMWU is for those employees performing shut-down work to be paid in accordance with the United KG Power Plant Maintenance Certified Agreement. There is a significant difference in the rates of pay there. So, that meeting took place on 5 November. There weren't any discussions per se between Untied KG and the union in respect of that matter. It was a briefing session to those employees of United KG down at Muja.

PN20

Yesterday, I am instructed, that there was a telephone call from Mr Steve McCartney to the shop stewards of United KG requesting that they conduct a meeting of the employees of United KG down at the Muja Power Station to advise them of the situation that had occurred or that was continuing to occur in terms of the Skilled Engineering stoppage at the Naval Base Power Station. And the two shop stewards spoke to Mr Cope who is a joint venture employee of the operations down there and is the Site Manager effectively and also Mr Rod Keep who is one of the managers of United KG at the Muja Power Station, advising them of that request that had been made by Mr McCartney, for them to have a meeting of that nature and to inform the employees of United KG about the continued nature of that dispute.

PN21

That meeting was duly conducted. At the conclusion of the meeting those shop stewards informed Mr Keep and Mr Cope that that feedback had been given. They also indicated that the discussion went on to two other matters, being, one, a dispute that related to what is colloquially referred to as the panel system which is a system of working under disagreement as outlined in the House clause, I believe, or referred to in the agreement as an alternative work pattern. And the second issue that they indicated that they got to discussion on was the application of the income protection insurance policy where there are, I believe, some delays, they indicated, were occurring in terms of people getting their entitlements, with which they were dissatisfied.

PN22

THE DEPUTY PRESIDENT: These are all things covered in the agreement, are they?

PN23

MR BORLASE: They are. Well, certainly not the Skilled Engineering situation, obviously not covered by the agreement. But the alternative work pattern system is covered by the agreement and that is contained - - -

PN24

THE DEPUTY PRESIDENT: The income protection is as well, is it?

PN25

MR BORLASE: And income protection is as well. The alternative work pattern is at clause 18 and the income protection insurance is at clause 21. Now, I am instructed - - -

PN26

THE DEPUTY PRESIDENT: And there is a grievance procedure in here presumably?

PN27

MR BORLASE: There is. Clause 23, sir.

PN28

THE DEPUTY PRESIDENT: What does that do?

PN29

MR BORLASE: Effectively that requires initial discussion between the employee and the employee's immediate supervisor. If it remains unresolved, then the union delegates will discuss and attempt to resolve the dispute with the on site manager of United KG. If the matter still remains unresolved, it will be resolved to a senior management representative of United KG and the appropriate full time union official. The parties are then to initiate steps to resolve the question, dispute or difficulty as soon as possible. At 23.4:

PN30

Whilst those steps are being followed, no industrial action is to be taken.

PN31

And there is to be a minimum of 7 working days allowed for discussion, in step 23.3, which is the discussion between the full time union official and United KG Pty Ltd. And then after that, either party may refer the matter to the Australian Industrial Relations Commission which has the power to settle the question, dispute or difficulty by conciliation and, if necessary, arbitration. Now, in terms of the second two matters, being the alternative work pattern and the income protection insurance, the latter on, I am instructed, there has been no discussions at that level between a full time union official and the company. In respect to the alternative work pattern issue, I am advised that there has been significant discussions.

PN32

The full time union organiser is Sean Currie who has been involved in those discussions. And I am advised that at a meeting on 10 October that effectively recognition was given by Mr Currie to the company management that whilst employees may not be happy about the situation which had arisen there, that there was effectively nothing that could be done in terms of that. And to give you a little bit of background in respect of it, as I understand, employees were to have been paid in accordance with clause 18.3, and it is more or less the last sentence in that. That:

PN33

Employees who are engaged on an alternative work pattern and working in accordance with the client's work pattern, that that employee shall receive the loading as calculated and paid to the client's personnel.

PN34

Now, that is effectively loading, I believe, of about 23 per cent. Now, due to an error by the Pay Roll Department of United KG, employees were actually getting paid differently to that and there has been significant overpayments made to those employees. Once that error had been recognised as occurring, steps were obviously taken by United KG to stop those incorrect payments and to ensure that people were paid in accordance with the agreement. The overpayments were quite significant, I believe. Somewhere in the order of 3 to $5000 for some individuals. So, there was obviously a lot of extra money being paid when it shouldn't have been paid.

PN35

And employees expressed that they were unhappy about having to be paid in accordance with the agreement now. And that is as - - -

PN36

THE DEPUTY PRESIDENT: See, the point I raise is, without going into the minutiae of it, Mr Borlase, is that this is a 127. If parties both now say, well, we would prefer to be in a conciliation mode, in my view a 127 is a most inappropriate vehicle for that to be the catalyst for that conciliation. A 127 has got a very significant purpose. There are other provisions in the Act if people want to avail themselves primarily of conciliation. I am not saying a 127 precludes conciliation but its purpose is for orders to issue and when industrial action is being undertaken. Now, if both parties are happy to conciliate, that should have been reasonably apparent before now and a more appropriate vehicle should have been the - should have either been here or even not here.

PN37

MR BORLASE: Sir, our primary intention with this application was and remains to seek orders. We believe that the primary cause of the industrial action relates purely to a support action by employees at the Muja Power Station for the dispute which is running with Skilled employees. We were of the view that these other matters had been settled or certainly the issue that were identified as the reasons for people going on strike were simply excuses to take industrial action in support of those employees at the Naval Base Power Station. And so it was only immediately prior to these proceedings commencing that any discussion relating to seeing whether or not satisfaction could be met in terms of the future conduct of the union and employees in terms of any disputes was raised.

PN38

THE DEPUTY PRESIDENT: See, the point is, Mr Borlase, the Commission has to act, as you are aware, as soon as practicable once these 127s are filed. But if they become the main and predominant instrument of matters getting here and by the nature of them, as a vehicle, and the speed with which they are required to be dealt with impedes the opportunity for the parties themselves to have conciliation, it sort of erodes the intent of what the provisions are there for. If the parties were willing to - if they are now willing to enter into conciliation, and they were willing immediately prior to this hearing, and they only became aware that they were willing, what I am suggesting is that, one, that should have been flushed out just prior to the hearing and I just question whether the approach of 127s seeming to be the first option, rather than other options, whether the approach is going to wear out the patience of the Commission.

PN39

Because as with this morning, I listed matters, the parties came up here, and not unrelated matters as you seem to have identified, and it becomes a - became a vehicle for the parties to have a discussion and then the applications were withdrawn. So, anyway, just for - even if it is only to espouse some views that I have got some concerns over and just alert you to those, Mr Borlase.

PN40

MR BORLASE: Yes, I do take your point, sir, and quite clearly section 127 is not intended as a conciliation process, nor, I agree, a process that ought be used to get a matter before the Commission in a more expeditious way than some other application may have dealt with it then.

PN41

THE DEPUTY PRESIDENT: See, it might be if the parties - and I can understand your concerns and your requirements to act in accordance with what the interests of your client are, but I could also think that the parties might be better served, on occasion, to simply discuss it directly prior to coming up here and if there is a potential to resolve it, to resolve it then and there, if there is not, then come up here. I can understand your client member wishing to not be exposed to delays in the resolution of issues but it might even be, on your applications, that he gives some indication of whether you have had discussions with the union and whether you wish to.

PN42

Look, what I am going to suggest in this matter, subject to what you say, Mr Borlase, is that I do adjourn it, that I direct that the parties themselves have some discussions and attempt to resolve it and I relist it for tomorrow morning. Do you have any views on that?

PN43

MR BORLASE: Sir, I would have thought that any conciliation process would have taken probably no more than five or 10 minutes, in respect of it, and if that were unsuccessful then I would hope that we would be able to resume proceedings.

PN44

THE DEPUTY PRESIDENT: Yes. Wel, do you have any views on that, Mr Edmonds?

PN45

MR EDMONDS: Yes, sir. If I could perhaps comment more broadly upon the benefit of conciliation in these circumstances, sir. I do find that the section 127 applications tend to have the ability to focus the parties' minds at a more substantial rate than perhaps other applications might, sir.

PN46

THE DEPUTY PRESIDENT: You support the approach?

PN47

MR EDMONDS: I certainly think that conciliation is useful at some times, sir, or conciliation is useful at all times, sir.

PN48

THE DEPUTY PRESIDENT: I was trying to discourage 127s, you seem to be encouraging them.

PN49

MR EDMONDS: No, sir, no, sir. I am - - -

PN50

MR BORLASE: Their behaviour certainly does.

PN51

MR EDMONDS: I am supporting the concept of attempting to conciliate 127 applications, on a more general basis, I suppose, sir. What I would say, sir, is that in any event, sir, it is certainly my understanding that the workers will be returning to work tomorrow morning. That is the information that I have available to me at this point in time, sir. I would think that conciliation may take longer than five or 10 minutes, but - - -

PN52

THE DEPUTY PRESIDENT: Well, what I will do is this, is I will adjourn so that you can have your discussions and I will reconvene in 15 minutes time, unless either of you request more time. This is adjourned.

SHORT ADJOURNMENT [3.33pm]

RESUMED [4.01pm]

PN53

MR BORLASE: Thank you, your Honour, for that adjournment. As a consequence of the discussions that took place between the parties, there remains on the part of the applicant concerns about aspects of this dispute which it perceives to relate to external influences and external matters. But the parties have managed to reach a situation where the applicant company is prepared to accept commitments and undertakings from the union as to future conduct in respect to the Muja site and that is that they will comply with the disputes resolution procedure contained within the agreement and in terms of right of entry and the conduct of meetings with employees at the site, that the union will commit to comply with the requirements of the Act and the agreement at Western Power sites that United KG is involved in.

PN54

The union has also indicated to us that the employees will return to work tomorrow morning, 19 November 2003. If Mr Edmonds is prepared to confirm those commitments on the record to the Commission, then we would seek that the Commission keep this matter open until tomorrow morning when - to - just so that we can ensure that the commitment for a return to work is complied with and if that is complied with then we would immediately notify your offices and seek to have this matter withdrawn.

PN55

THE DEPUTY PRESIDENT: Yes. Mr Edmonds.

PN56

MR EDMONDS: Yes, sir, thank you, sir. I have had the opportunity to take instructions from the union, sir, and I can confirm that I give that undertaking on behalf of the organisation. I am happy for the matter to stay open until tomorrow morning, sir, at which point, I am instructed, there is going to be a return to work.

PN57

THE DEPUTY PRESIDENT: Yes, and you are clear of those undertakings and commitments, consistent with what Mr Borlase has just expressed?

PN58

MR EDMONDS: Yes, sir, I am, sir. Yes, sir.

PN59

THE DEPUTY PRESIDENT: On that basis I will adjourn this matter. I will await the information from you, Mr Borlase, tomorrow morning. If you don't wish to agitate the matter, it will be dismissed. This matter is adjourned.

ADJOURNED INDEFINITELY [4.03pm]